Cosmopolitanism : Between Ideals and Reality [1 ed.] 9781443886246, 9781443883702

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Cosmopolitanism

Cosmopolitanism: Between Ideals and Reality Edited by

Lorena Cebolla Sanahuja and Francesco Ghia

Cosmopolitanism: Between Ideals and Reality Edited by Lorena Cebolla Sanahuja and Francesco Ghia This book first published 2015 Cambridge Scholars Publishing Lady Stephenson Library, Newcastle upon Tyne, NE6 2PA, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2015 by Lorena Cebolla Sanahuja, Francesco Ghia and contributors This book is published thanks to the sponsorship of the project KOSBOBANDO POST DOC PAT 2011 by the Autonomous Province of Trento All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-4438-8370-0 ISBN (13): 978-1-4438-8370-2

TABLE OF CONTENTS

Introduction ................................................................................................. 1 Lorena Cebolla and Francesco Ghia Cosmopolitanism: Ideality Cosmopolitanism and Human Rights ........................................................ 10 Isabel Trujillo Dynamic Cosmopolitanism: A Brief Sketch with a Special Emphasis on Kant ...................................................................................................... 35 Georg Cavallar The Right of the Subject to Become a Citizen of the World: Kantian Anti-Colonial Cosmopolitanism .................................................. 59 Lorena Cebolla The Principle of Equality and The Religious Foundation of Human Rights: A Critical Review of Georg Jellinek’s Work............................................. 83 Francesco Ghia Cosmopolitanism: Reality Defense or Domination? Moral Cosmopolitanism and International Order........................................................................................................ 108 Luca Scuccimarra Integrity in Conflict: A Cosmopolitan Approach for Survival ................ 128 Laura Westra Constructing Cosmopolitanism in the Digital Age: Challenges and Prospects ........................................................................................... 154 Francisco Arenas-Dolz

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Progressive Environmental Taxes: A Fair Measure against Climate Change ..................................................................................................... 172 Paula Casal



INTRODUCTION LORENA CEBOLLA AND FRANCESCO GHIA

Sometimes, when thinking about a concept, it is better to start with facts. In this case, the meaning of cosmopolitanism. It is refreshing to realize that this is the strategy followed many years ago by the undoubted father of current reflections on cosmopolitanism, Immanuel Kant. Considered a rationalist par excellence, Kant nonetheless constructs his philosophy on the basis of the real or empirical conditions of human life; his transcendental system of reason is the result of thinking about and for human beings. Without wishing to enter into a critique of Kant, it can be noted that Kant constructs his defense of cosmopolitan right, as right or law and not merely as a moral notion, on the fact that we all live together in an enclosed, limited spherical space.1 This fact, seemingly obvious and apparently irrelevant, is the starting point for our reflections. The fact that we all live together in a limited space and, most importantly, with limited resources, begs the question of how we, humanity, are going to cope with this fact. We could add another, rather “pretentious” fact: human beings, as individuals, members of families, groups, peoples, nations or states, try (if possible) to avoid war. So, the cosmopolitan question becomes “the humanity question”: how are we going to live together in a small space of limited resources and avoid a state of perpetual war? How are we going to proceed if we want human relations to be based not on power, force or terror, not on immediacy. The question of justice and equity immediately follows since living in a space undetermined by violence or power is to live in a legal, institutional or “ruled” system, where everyone is able, again in a Kantian fashion, to exercise freedom, follow their desires, aims, life plans, etc. provided this does not encroach on the freedom of others. This is the cosmopolitan question and its distinctive characteristic, dealing with the destination of the whole and not of a single part; cosmopolitanism is concerned with global justice.

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Kant, Immanuel, Metaphysics of Morals, 6:352; Perpetual Peace, 8:40.

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Introduction

Kant’s idea of cosmopolitanism, the project of a federal world republic, should be analysed against the background of the major elements of political modernity and the features of the German political and legal culture at the time of the Enlightenment (summarised in the slogan “Sapere aude!”). In our case, the presentation of cosmopolitan as a window of opportunity for global justice might attract immediate criticism, since it seems to be based on only on individualistic/liberal assumptions. In our opinion, this is not the case. By presenting the problem this way we are not saying that cosmopolitanism looks for a “ruled” solution securing a just and equal system for the individual (or not only this). A “system, where everyone is able…to exercise freedom, follow their desires, aims, life plans, etc. provided this does not encroach on the freedom of others” does not impose specific conduct, or a specific course of action understood as a universal mechanism. This idea of justice is compatible with multiple understandings (or sometimes failures to understand) in relation to notions of identity, membership, citizenship, happiness… It is reconcilable with different ways of life, thought and action about life and life’s purpose. Over time, civil societies and political institutions have developed an idea of themselves as societies and institutions of liberty, based on respect for the freedom of conscience, the recognition of the positive value of diversity, and the construction of an open public sphere in which all citizens have an equal right to have their positions represented and to participate in the decisions concerning collective life. The future of our world, indeed, is linked to our capacity to think, at the theoretical level, of positive interrelations between different values, and to create at the practical level new forms of cooperation between various realms of life. However, cosmopolitanism imposes constraints, some would say a set of “minimums”, which must be respected for life, human and non-human, to be possible, and if human life is to be lived, in its multiple understandings, fulfillingly. These constraints reflect a common understanding of what is required to reach our different and particular conceptions of the good. This could be illustrated by saying that the necessary constraints imposed by cosmopolitanism could be those necessary, for example, to produce the list of goods outlined by Martha Nussbaum. 2 Another way to describe these constraints is simply to call them human rights. Again, these

 2

Nussbaum, Martha (2002), ‘Capabilities and Human Rights” in de Greiff, P. &Cronin, C. (eds.), Global Justice and Transnational Politics: Essays on the Moral and Political Challenges of Civilization, Cambridge: Cambridge University Press.



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necessary constraints can be condemned due to their liberal grounding, Occidentalism, imperialist interests, etc. We prefer to refer the reader to Simon Caney’s book Justice Beyond Borders,3 perhaps the best analytical defense of cosmopolitanism and the civil, political, and distributive human rights it entails against the critiques typically made of human rights as a western construct. The key to our proposal is to identify the factors that might determine a positive interpretation of what is entailed by cosmopolitanism, so that they can be given a proper theoretical work and coherent public policies. Having said this, much still needs to be said about what cosmopolitanism actually is. To quote Pogge: “Three elements are shared by all cosmopolitan positions. First, individualism: the ultimate units of concern are human beings, or persons rather than, say, family lines, tribes, ethnic, cultural, or religious communities, nations or states. The latter may be units of concern only indirectly, in virtue of their individual members or citizens. Second, universality: the status of ultimate concern attaches to every living human being equally, not merely to some sub-set, such as men, aristocrats, Aryans, whites, or Muslims. Third, generality: this special status has global force. Persons are ultimate units of concern for everyone - not only for their compatriots, fellow religionists, or such like.”4

It is important to note that although cosmopolitanism is concerned with the individual it is not, as Isabel Trujillo states in her contribution to this book, equivalent to individualism or universalism. It is an attempt to articulate differences within a community that is global, while at the same time making every individual count and be accountable. The fact that the unit of concern is the individual, all individuals, does not mean that cosmopolitanism is a political strategy for homogenization. On the contrary, it is a guarantee against communal forms of coercion. In this way, if an individual realizes a life project within a community through the community culture, values, and institutions, cosmopolitanism integrates the individual and the community within a wider or global sphere of acknowledgment, accountability, responsibilities and decisions. Where, on the other hand, an individual or group is coerced by the community (via physical, social and political coercion) cosmopolitanism

 3

Caney, Simon (2005), Justice Beyond Borders: A Global Political Theory, Oxford: Oxford University Press. 4 Pogge, Thomas (1992), ‘Cosmopolitanism and Sovereignty’, Ethics, 103, pp.4875, pp.48-49.



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Introduction

can respond because the individual is not isolated within the borders of a people or state, but is part of a wider, global community, which aims to provide guarantees to every subject, treated as a world citizen. It could equally be said, in line with the reasoning of Kai Nielsen, that cosmopolitanism protects the individual because of its being an egalitarian theory of justice. In his view, “as egalitarians […] we believe that the life of everyone matters, and matters equally. We believe, that is, that all people have equal moral standing.” 5 Hence, cosmopolitanism should not be understood in logical opposition to patriotism or communitarism, in the sense that it acknowledges the importance of the diversity of cultures, and the existence of special duties among persons in certain categories, friends, families, workers…; but at the same time cosmopolitanism imposes some duties that have a universal scope, duties on everybody, and this matters in the context of a planet that belongs to everybody and will become the home of future generations. To sum up, cosmopolitanism is the idea of humanity as a single community or polis. Beyond particularities all human beings (and in some cases or versions of cosmopolitanism some non-humans) are part of a community, and have responsibilities, rights and the power to decide on a common future. Ideas of cosmopolitan vary from the purely moral to cultural, social, legal, institutional, political, educational and economic cosmopolitanism, or versions that combine some or all of these. The various perspectives try to establish the basis necessary to create true cosmopolitanism. This being the case, cosmopolitanism should not be understood in Kantian terms as an idea, a concept with no empirical reality, a notion in service of a never-to-be-reached aim nonetheless guiding our everyday actions and indicating the sole path to follow for us to be coherent with our understanding of ourselves and the world. Cosmopolitanism is not only this; it is a concrete objective, a foreseeable situation, capable of being achieved in our world. It is also true that its objectives cannot be reached immediately, since cosmopolitanism, in the words of Georg Cavallar, is a dynamic concept, with a goal that needs to be formulated, cultivated and promoted. And for this purpose, many things have still to be decided, such as the kind of political and institutional configuration the community of the world would adopt, and the economic configuration



5 Nielsen, Kai (1998), ‘Is global Justice Impossible?’, Res Publica, IV, 2, pp. 131166, p.134.



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able to sustain and promote a world of active citizens (a world of subjects that find themselves in a condition allowing for their active participation in the decisions that define the purposes of the multiple communities in which they belong). In this sense, cosmopolitanism is a process, a realistic one nonetheless. The process has been variously defined, with a number of concrete proposals, particularly in relation to the political/institutional forms of cosmopolitanism and cosmopolitan theories of justice, including the work of David Held, Simon Caney, Thomas Pogge, Henry Shue, Brian Barry, Daniele Archibugi, Hillel Steiner, Ulrich Beck, Kai Nielsen, and many others.6 Theirs are well-constructed, solid proposals about political and institutional possibilities and the principles of justice that define the duties we all owe to each other. Some have a socialist leaning for cosmopolitanism or global justice to become reality, and these should be seriously considered, since the theory underlying institutional conceptions does not always recognize that market dynamics strongly influence the feasibility of the proposal. The debate on the political and institutional configuration of cosmopolitanism rests today on the choice between a system of multilevel institutions with multiple decision centers and the idea of a global state or world government. The fact that the former would be able to carry out most, if not all, of the functions of the latter without many of its disadvantages is tipping the scales in favor of the multilevel proposals. In addition, this reflection must be accompanied by an analysis of the compatibility of our institutional and political programs with what is known of possible market configurations, adding to the institutional design realistic testing in terms of their realization and maintenance. Readers can gain accurate and extensive knowledge of the discussion on

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As a guide we cite one work per author: Held, David (2010), Cosmopolitanism: Ideals, Realities & Deficits, Cambridge: Polity Press; Caney, Simon (2005), Op.Cit.; Pogge, Thomas (2002), World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms, Cambridge: Polity Press; Shue, Henry (1980), Basic Rights, Princeton: Princeton University Press; Barry, Brian (2005), Why Social Justice Matters, Cambridge: Polity Press; Archibugi, Daniele & Held, David (1995), Cosmopolitan Democracy. An Agenda for a New World Order, Cambridge: Polity Press; Steiner, Hillel (1994), An Essay on Rights, OxfordCambridge (MA): Blackwell;Beck, Ulrich (2006), Cosmopolitan Vision, Cambridge: Polity Press; Nielsen: Kai, (2003), Globalization and Justice, NY: Humanity Books.



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Introduction

the different political and institutional proposals relating to cosmopolitanism by consulting the works of the authors cited above, and this is the main reason no chapter in this book is dedicated to the political/institutional design of cosmopolitanism. The approach taken here is different. We decided to provide an introduction to the ideas and reality of cosmopolitanism, to present it “in genesis”, giving a point of departure to students and readers of cosmopolitanism from which to analyze its various contemporary versions and proposals, providing an additional tool for their thinking and judgments in the face of a huge amount of literature today. We also wanted to give a sense of emergency to those matters, requiring a prompt legal, political and economic response, for the continuing existence of the planet and for cosmopolitanism to continue as a viable proposal for humanity. We wanted to stress the aspects and situations that need to be taken into immediate account if life matters. Therefore, the part of the book dealing with “ideality” presents cosmopolitanism according to its historical character, as a philosophical notion that insists on some core problems and that has evolved over time to its “definitive” Kantian version. It also includes a reflection on the principle of equality and its conformation within a cosmopolitan perspective, accompanied by the study of the religious origin of human rights in the work of Georg Jellinek, one of the fathers of modern public law. Also included is a presentation of cosmopolitanism in modern juridical/legal terms. The “reality” is more complicated, concerning the different possibilities of reification of cosmopolitanism and more controversial questions in political and legal practice. Discussions feature humanitarian intervention, the application of gradual and progressive environmental taxation to combat climate change as well as global inequality, the drafting and immediate enactment of environmental law, with attention going to social media as the means and locations of democratization. The reality of cosmopolitanism deals, we could say, with the conditions sine qua non of cosmopolitanism. In so doing, we have tried to give the idea and the reality of cosmopolitanism, allowing the reader to decide what lies between, the specific version of cosmopolitanism he or she favors among the available options. Our intention is also to provoke the reader into a specific question. With a knowledge of the fundamentals of cosmopolitanism, the emergencies it faces and the different versions that try to cope with those



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problems, we hope the reader wonders: ‘Why is cosmopolitanism not a reality?’, ‘How come our institutions, political designs and economy are not cosmopolitan?’, ‘What is stopping us from becoming a cosmopolitan whole? ’. We hope the reader discards what Nielsen called ‘the state of the world impossibility argument’ against cosmopolitanism and starts to seriously question ‘the political will impossibility argument’,7 and in this way, of course, we are trying to provoke the reader into a new spirit and action, the cosmopolitan one. The chapters of this book have this aim. Georg Cavallar makes a core distinction between two basic understandings of cosmopolitanism, one static, one dynamic. Defending the dynamic character of cosmopolitanism the author presents it as typical of modernity and describes the evolution of the dynamism of cosmopolitanism and its contents from Francisco de Victoria to Immanuel Kant. Lorena Cebolla offers a historical-philosophical description of cosmopolitanism understood as a concept strongly based on the common property of land; a controversial subject informing the notion of citizenship and citizenship of the world, culminating in the work of Immanuel Kant where cosmopolitanism, grounded on the concept of the common property of the land, is presented as a form of anti-colonialism, able to give a concrete sense and content to the prerequisites of becoming a citizen of the world. Francesco Ghia suggests a comparison between the idea of cosmopolitanism and the “principle of equality” through readings in studies on human rights by the German public lawyer Georg Jellinek. The fundamental principle of any legal relationship, for Jellinek, is the foundation of legal personality, a concept that philosophically resolves the conflict between the common will of the people and the protection of individual rights of freedom. The concept of «substantive equality» (JeanJacques Rousseau) is asserted by Jellinek through a principle of differentiation that allows the individual to defend personal freedom and autonomous responsibility for action. Isabel Trujillo presents a reflection on cosmopolitanism and its relationship with human rights, analyzing all the interrelated aspects through an analysis of the consequences observable in human rights

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Nielsen, Kai (1998), Op. Cit., p.132.

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Introduction

practice, such as specification and non-discrimination. The author also reflects on the various sources of legal power aimed at defending human rights and the problem of its international articulation. Luca Scuccimarra debates the reformulation of humanitarian law in new cosmopolitan terms as used to transform the regulatory foundations of international relations, terms that give rise to the concept of cosmopolitical responsibility. The questioning of the “politically interested” character of this idea, though, leads the author to defend the necessity for a conception of politics that is finally free from the rigid internal/external dichotomy inherited from the political thought of the early modern age, and thus moves beyond the question: defend or dominate? Laura Westra gives a thorough presentation of ecological integrity; an entirely positive concept that is essential to the life of both humans and non-humans, today and in the future. The concept needs to be openly and universally accepted, incorporated in environmental and legal human rights instruments as well as national constitutions. Westra argues for the urgency to establish a new form of global governance able to challenge the existing and functioning central power of financial organizations, supported by wealthy multinational corporations attacking the ecological integrity at the base of human life and rights. Francisco Arenas-Dolz presents the challenges and prospects of constructing cosmopolitanism in the digital age. In his chapter, the author explores the extent to which Internet communication promotes (or inhibits) cosmopolitanism. He shows how digital media have reshaped the main challenges of democratic politics and characterizes “digital cosmopolitanism”. Paula Casal presents a proposal for gradual and incremental environmental taxes as tools to combat climate change with fiscal mechanisms that do not increase, but may decrease, inequality. This proposal faces the emergency situation of our planet with the possibility of reducing global inequality.



COSMOPOLITANISM: IDEALITY

COSMOPOLITANISM AND HUMAN RIGHTS ISABEL TRUJILLO UNIVERSITY OF PALERMO

1. Kinds of cosmopolitanisms and cosmopolitan factors Every form of cosmopolitanism involves the idea of a single community 1 beyond “borders” of different kinds: political, moral, economic, cultural and other relevant diversities that very often divide people into groups, distinguishing between insiders and outsiders. This is the meaning of the combination of cosmos and polis. Polis designates a human community of equals and cosmos refers to its scope: it indicates that the community of equals ought to cover the maximum possible domain and then ought to go “beyond” other existing affiliations. Properly speaking, the minimal cosmopolitan claim is a normative demand of inclusion and equal concern without discrimination. Both Greek terms refer to the idea of an order: cosmos is the universal order of nature or facts – mostly but not completely independent of human action –, and polis refers to an order made by humans that can be expanded to the borders of the cosmos, not only in the sense of the whole earth, but of the entire universe. 2 In the broadest version of cosmopolitanism human beings and their political communities are called upon to respect and contribute to the cosmic order. This is one meaning of politics: cosmopolis is the outcome of free human actions. Hence, cosmopolitanism is a normative approach concerning the structure of the world built by human beings, inspired by equality and participation (polis), with a worldwide extension (cosmos). It is a normative account of justice as long as it regards the concern for human and other beings and their appropriate treatment.



1 Kleingeld, Pauline & Brown, Eric (2014), ‘Cosmopolitanism’, The Stanford Encyclopedia of Philosophy (Fall 2014 Edition), Edward N. Zalta (ed.), URL = . 2 Appiah, Kwame Anthony (2006), Cosmopolitanism: Ethics in a world of Strangers, New York & London: W.W. Norton & Company.

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Examining its scope, cosmopolitanism can be seen as a normative theory of global justice. Every theory of global justice tends to be cosmopolitan, but cosmopolitanism is not necessarily or first of all a theory of justice. On the one hand, cosmopolitanism can seek to overcome economic, institutional, legal, cultural, religious or moral borders. On the other hand, theories of global justice can be of different types (including only sentient or rational beings, for instance), and can have different content: rights, duties, institutions, relationships. In the context of theories of justice, the content of cosmopolitanism has often been identified with the idea of the moral relevance of individuals,3 but cosmopolitanism is more focussed on an idea of a single community rather than on the value of individualities. The claim that individuals are units of moral concern can be called cosmopolitan if referred to a form of ultimate affiliation in a single community 4 grounded on common humanity (mankind). Otherwise, the account can be thought of as simply individualist and not cosmopolitan. 5 Nevertheless, individualism and cosmopolitanism are comparable. Sometimes it seems that in order to become part of the cosmopolis it seems that every form of particularity or identity must be eliminated. At first sight the self unencumbered6 appears to be the best candidate for integration into a community of the whole world, precisely because individuality seems neutral, 7 whereas identity features determine distinctions and divisions. But, at the same time, it is difficult to imagine communities of just neutral individuals: every community has to be distinguished from all others. However, as will be shown below, individualism is far from being the core of human rights (our topic here). The choice for individualism brings to mind the proposal of natural rights theorists who consider individuals without colour,

 3

Pogge, Thomas (2002), World Poverty and Human Rights. Cosmopolitan Responsibilities and Reforms, Cambridge: Polity Press, p.169. 4 In the case of Beitz, for instance, individualism is moderated by the idea of interdependence. Beitz, Charles R. (1979), Political Theory and International Relations, Princeton: Princeton University Press. 5 Waldron, Jeremy (2000), ‘What is Cosmopolitan?’, The Journal of Political Philosophy, 8, pp.227-243. 6 This is the participant in the original position according to Rawls, John (1999), A Theory of Justice. Revised Edition (1971), Oxford: Oxford University Press, §4. 7 Feminist theorists have clearly shown that neutrality is difficult or impossible. It is very easy to confuse dominant with universal values: MacKinnon, Catharine A. (2006), Are Women Human? And Other International Dialogues, Cambridge (Mass.): Harvard University Press, p.52.

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language, gender, religion, by virtue of a nature that is the same for everyone. But human rights are not natural rights. Like individualism, universalism is often confused with cosmopolitanism, but must be distinguished too. The universalist approach looks for rules that are valid for everyone, 8 whereas cosmopolitanism articulates differences. This distinction is clear for Immanuel Kant, who can be considered the father both of modern universalism and of cosmopolitanism. In the latter but not the former, the institutional dimension is crucial. In some way, the political dimension of cosmopolitanism comes to the fore through the difference between cosmopolitanism and universalism. The task of universalism is moral homogeneity (rules valid for everyone), whereas politics points to a dynamic unity of differences (in other words, politics aims at solving the problem of coordinating people who are different). The political dimension of cosmopolitanism regards the possibility of coordinating different agents. For this reason cosmopolitanism has both legal and political levels. This difference is confirmed by some characteristics. The opposite of universalism is particularism, with which it cannot be mixed. The opposite of cosmopolitanism is neither patriotism (which can be integrated in the cosmopolis) nor the politics of difference (which is consistent with cosmopolitanism).9 Cosmopolitanism can mix local and global elements. Since cosmopolitanism seeks to overcome existing differences, it presupposes their existence and the possible tension between them. Universalism can exist without making reference to different levels. Cosmopolitanism can point to the universal aim of equality and at the same time demand its realization locally.10 From this point of view universalism and cosmopolitanism are dissimilar. Within the multifaceted area of cosmopolitanism it is possible to distinguish between exclusive and inclusive versions. These different accounts must be seen as two extremes of the same continuous line (in order to avoid ambiguous results), with a middle area for different versions nearer to, or further from, one extreme or the other. Exclusive

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Pogge, Thomas (2002), Op.Cit., p.92. Moellendorf, Darrel (2002), Cosmopolitan Justice, Boulder Colorado: Westview Press, pp.47-54. 10 Nagel, Thomas (2005), ‘The Problem of Global Justice’, Philosophy & Public Affairs, 33, 2, p.133. 9

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cosmopolitanism refers to versions in which a negative claim is dominant: what cosmopolitans propose is to overcome divisions denying the relevance of narrower forms of communities. The most extreme form resembles universalism. An example of this version is the cosmopolitanism of supporters of the world state aiming to eliminate separate political communities, or approaches to justice that contest special duties towards fellow countrymen.11 If we consider this version as one side of the line, on the opposite side are the more comprehensive inclusive – versions of cosmopolitanism, with increasingly broad accounts able to go beyond political affiliations and even beyond humanity, as far as the conception of human beings, animals and other natural beings forming parts of a whole. In fact, within the cosmos human beings can be put side to side with other forms of life. Obviously, the broadest versions of cosmopolitanism need to incorporate the awareness that different statuses need to be distinguished and articulated. Otherwise cosmopolitanism would seem the Hegelian “night in which all cows are black” and become irrelevant for the task of establishing normative directions. The wider the community, the more important are the internal distinctions that have to be compatible and reach some kind of order and harmony. In general, the broadest forms of cosmopolitanism underline human responsibility for the rest of the cosmos, distinguishing the role of humans and their normative positions from those of other beings.12 At the end of the day, cosmopolitanisms can be called inclusive because they advocate a dynamic effort for increasing inclusion in a single community, whilst maintaining differences. 13 The level of inclusion that cosmopolitanism points towards is a question of degree. Harmony and order as contents of cosmopolitanism express not a fact, but an ideal inspired by proportionality – in other words by justice and equality – and is a task to be realized by human beings. In the inclusive versions of cosmopolitanism, a positive cosmopolitan claim is prevalent: the point is not to deny the relevance of necessary differences, but to

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It is a contentious point. See for instance Goodin, Robert (1998), ‘What is so Special about our Fellow Countrymen?’, Ethics, 4, pp.663-688. 12 This idea is prevalent in Confucianism and other Eastern approaches. See Kim, Youngmin (2006), ‘Moral Agency and the Unity of the World: The Neo-Confucian Critique of “Vulgar Learning”’, Journal of Chinese Philosophy, pp.479-489. 13 The idea of concentric circles of Nussbaum’s first works. See Nussbaum, Martha C. (1996), ‘Patriotism and Cosmopolitanism’, in Cohen, J. (ed.), For Love of Country: Debating the Limits of Patriotism. Martha Nussbaum with respondents, Boston: Beacon Press.

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build a balance between differences in a community of destiny. Cosmopolitanism is an aim to be achieved, presumably with continuous new challenges. Nowadays, inclusive accounts of cosmopolitanism can be appreciated in ecology movements 14 or in geoism 15 , positions that reiterate old meanings of cosmos as a harmonic whole including all beings, not only humans. From this point of view the cosmopolitan character of human rights practice is limited. In order to relate cosmopolitanism to human rights, it is useful to observe the phenomenon as what it is: an international legal practice. In this perspective human rights can be said to work as crucial cosmopolitan factors in the context of international relationships, and to contribute to building the international community as a cosmopolis. However, the worldwide community that they contribute to form is ambiguously cosmopolitan, although this is not totally down to human rights. On the one hand, observed in the light of the most extreme form of inclusive cosmopolitanism, human rights are only partially cosmopolitan because they are centred on human beings. Some of their features call for the inclusion and equal treatment of some but not all non-human beings, as the Great Ape Project shows16, but they concern mostly human beings and similar species. For this reason, the meaning of cosmopolitanism as including every being in the cosmos is considered marginal here. On the other hand, human rights practice is one of the most important cosmopolitan factors in a world comprising nation states and not as an alternative to them. What today is called classic cosmopolitanism – the cosmopolitan thinkers of the eighteenth and nineteenth centuries, starting with Immanuel Kant – does not concern non-human beings. Human rights practice has to be positioned in the perspective of the modern pluralistic political set of international institutions, which includes nation states. They are also significant cosmopolitan factors in the contemporary world community. In our view, nation states are important for their links with human rights within a cosmopolitan framework, and not elements against cosmopolitanism. The success of cosmopolitanism depends on the structure of states and some other conditions such as the international rule of law.

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“The air does not obey national boundaries”, Nussbaum, Martha C. (1996), Op.Cit., p.12. 15 This term has been used by Casal, Paula (2012), ‘Progressive Environmental Taxation: A Defence’, Political Studies, 60, pp.419-433. 16 Cavalieri, P. and Singer, P. (ed.) (1993), The Great Ape Project, New York: St. Martin’s Griffin.

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Since its origin, the idea of a single community comprising different elements is linked to the core concept of cosmopolitanism. It is a community of destiny, but also something to build, the content of a normative project. According to the shared idea of a community as a context in which rational beings interact,17 Greek cosmopolitan thinkers used to consider rational capacities (the logos) as the binding element of the community, because of the importance of communication. Community and communication have origin in the logos and have a common etymological root in “common-action” (communicatio facit domum et civitatem).18 The political character refers this time to the idea of common action (some characteristics of politics have been pointed out: against universalism, the crucial importance of differences; against a despotic power, the idea of an authority in conditions of equality). It is not accidental that at the beginning of the modern world, after the discovery of the Americas, Francisco de Vitoria put forward the idea of a universal community of communication, the communitas orbis. Vitoria’s idea is particularly relevant if interpreted in its context. Until that moment, cultural differences were not as radical as the dominant mentality learned after the discovery of the Americas. However, reigns and states were developing fast in the modern fashion and borders were increasing strong, losing their traditional porosity.19 In the past, different political orders (the Holy Roman Empire, reigns, and the Roman Catholic Church – in the Western World) were able to interact at different levels. The evolution of sovereignty was tending towards absolute centres of power, creating incompatibilities among them in the process. At the beginning of the new world of independent states, Vitoria imagined different political communities, regional aggregations and an international community of the world, each the expression of interdependences and interactions, separate and independent but interconnected.

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Aristotle, Politics, 1223 ss. In the case of Aristotle, the preference for the political community is clear. 18 See Aquinas, Thomas (1950), In Libros Politicorum Expositio, Turin: Edizioni Marietti, pp.7-11. 19 As is well-known, the Kantian universal right to hospitality is a minimum request of cosmopolitanism in a world comprising nation states. For challenges for democracy in the age of migration and the idea of porous borders, see Benhabib, Seyla (2004), The Rights of Others. Aliens, Residents and Citizens, Cambridge: Cambridge University Press. See also Anderson-Gold, Sharon (2001), Cosmopolitanism and Human Rights, Gloucester: University of Wales Pres.

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Vitoria’s most interesting contribution to the understanding of cosmopolitanism is that the universal community is thought of as a polis, and not as a moral community: “habet enim totus orbis, qui aliquo modo est una respublica, potestatem ferendi leges aequas et convenientes omnibus, quales sunt in iure gentium.”20 As is well-known, the law of the world community is ius gentium, the traditional law of Peoples.21 Every community has its own law because law necessarily depends on a social body (polis), characterized by equality in relevant fields. The borders of the law are therefore the borders of its social body. Depending on the size of each – or on the intensity of their capacity for inclusion – the law could be a tool for enforcement, excluding differences, or an instrument of inclusion. The smaller the community the less inclusive its law. Sovereignty was not the quality of an absolute power, because – albeit independent – states were subordinated to the law, inside and outside. International institutions were not thought of as a pyramid of increasingly strong powers, but as a network of powers governed by different laws in the traditional ius civile internally, and the ius gentium externally. This simple design summarizes what can be called the international rule of law. Apparently paradoxically, the centrality of communities in cosmopolitan accounts requires the priority of law over politics. A community of equals is not possible if its power is not regulated by law. Yet, as we will soon see, the priority of politics over law is the condition for necessary differences without which neither human rights nor cosmopolitanism can be implemented. Both law and politics are necessary for cosmopolitanism, and – perhaps more interestingly and less intuitively – also for human rights.

 20

Vitoria, Francisco de (1960), Relectio de potestate civili, in Urdanoz, T. (ed.), Obras de Francisco de Vitoria. Relecciones teológicas, Madrid: BAC, § 21. Pagden, A. & Lawrance, J. (ed.) (1992), Vitoria: Political Writings, Cambridge: Cambridge University Press. 21 Here we are not speaking of some common principles of justice in a world society of liberal and decent states (Rawls, John (1992), The Law of Peoples with “The Idea of Public Reason Revisited”, Cambridge Mass.: Harvard University Press, §2), but of a legal system able to coordinate the actions of strangers, both in the private and the public domain.

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2. Human rights practice The reference to human rights as a practice excludes from our approach the theory of human rights. A theory of rights is a – presumably internally coherent – system of ideas that provides a justification for rights. It tends to be alternative to other theories, whilst in human rights practice different justifications of rights are permitted. In addition, theories of rights are important for practice because they contribute to the search for their justification without exhausting the life of rights. Human rights practice is a complex phenomenon, compatible with more than one theory of rights, in other words with different justifications, not limited to the problem of justifying them but aimed at their implementation. When a theory of human rights is confused with the practice (mistaking the part for the whole), the result is an ideology of rights. This is the main reason for identifying human rights neither with natural rights, nor with liberal rights (the most powerful Western accounts of them). Human rights are – at least, here they are considered as – a social, moral and legal practice, with an origin in history, built through official events, with their own institutions and basic documents. Natural rights are the result of ideas about human nature, and – for as long as they appeal to natural law– they establish the content of justice that institutions must take into account.22 The demand of effective human rights explains their link with the law. Starting from the classic distinction between natural and positive law, human rights have to be classified as positive law, provided positive law includes values and principles. Human rights need positive law as a condition of efficiency and enforcement. At the same time, belonging to positive law troubles the universality of rights. The more positive the right, the less universal it is because positive law is rooted in facts. Human rights practice is an interesting laboratory for the difficult task of defining law. It shows that it is not possible to clearly identify legal

 22

As is well-known, there is a debate on the relationship between natural rights and human rights concerning continuity of discontinuity. On continuity, see Tuck, Richard (1997), ‘The Dangers of Natural Rights’, Harvard Journal of Law and Public Policy, 20 (3), pp.683-693; on discontinuity, see Beitz, Charles (2009), The Idea of Human Rights, Oxford: Oxford University Press. See also Trujillo, Isabel & Viola, Francesco (2014), What Human Rights Are Not (Or Not Only). A Negative Path to Human Rights Practice, New York: Nova Science Publishers, Ch. 1.

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phenomena without considering their relationship with other social practices. 23 Although not the topic here, the reason for this lies in the continuity of the different dimensions of practical reason (to which law belongs, together with moral, political and social practices). Now we can remark that human rights are at the same time ethical claims, social persuasions and legal procedures, and tend to be able to integrate efforts made by political and non-political actors, from social and religious movements,24 movements in civil society25 and domestic and international communities, Human rights do not respect the neat but abstract divisions of conceptual categories, and this is sometimes a problem for analytic legal theorists, but is inevitable in the case of institutional facts.26 The liberal theory of rights is an important but only partial approach to human rights. It associates the justification of human rights with freedom and autonomy, which inspire them along with equality and solidarity. In legal practice, different justifications of rights compete in the attempt to explain what is due to rights holders, and the different approaches develop the whole of their interests. This is made clear by the different generations of rights that coexist as part of the process of rights implementation: the first with rights of freedom and liberties, the second generation with social rights, the third rights of convergent goods (peace, clean air, development, and so on), the fourth associated with technological advance (rights to genetic patrimony or related to climate change). The different generations are the direct consequence of necessary and concrete efforts for implementing human rights, which demand protection in their contexts. In order to understand rights as a practice, it is important to identify their aim, and this is easier when observing them at their starting point. Although a long history of rights vindications could be described, a convincing position is that modern human rights practice dated back to after the Second World War. Many similarities can be found with other important events in the evolution of Western institutions, but in some way

 23

Schauer, Frederick (2015), The Force of Law, Cambridge Mass.: Harvard University Press. 24 Sousa Santos, Boaventura (forthcoming), If God Were a Human Rights Activist, Stanford: Stanford University Press. 25 Sen, Amartya K. (2004), ‘Elements of a Theory of Human Rights’, Philosophy & Public Affairs, 32, 4, pp.315-356. 26 Lacey, Nicola (2012), ‘Reflections on the Philosophy of Law’, Rivista di filosofia del diritto. Journal of Legal Philosophy, 1, 1, pp.91-106.

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the post Second World War period produced something new. The Universal Declaration of Human Rights in 1948 was the result of awareness by nation states – in the Eastern and Western blocks27 – of the gravity of the Holocaust and the need for states to respect and guarantee some universal rights. It is worth noticing here that the first step for human rights is the act of acknowledging other’s rights: states recognize human rights. Before that moment, the recognition of rights had consisted mainly in the approval by political power of the claims of groups for their own rights, limiting the political power of the approver. Since then, human rights have – very slowly – pushed the leading legal and political institutions in the direction of cosmopolitanism. In other words states have begun a process of self-revision, because they are the main (if not sole) actors in human rights practice.

3. Human rights as exclusively cosmopolitan? Specification and non-discrimination in human rights practice One of the most important ways to distinguish human rights from natural rights is the idea of the rights holder. As stated above, “natural man” is not a human rights holder. “Natural man” is “natural” because it is assumed that he – the male article is due here because ‘male’ means ‘neutral’ – must be deprived of some determinations to identify his nature. What remains are his natural rights: to self-preservation, freedom, ownership. In comparison with natural man, human rights holders are very demanding. In particular, they demand a large number of rights in relation to their status and conditions of life. This is shown by the stratification of different claims: women’s rights, children’s rights, elders’ rights, prisoners’ rights, workers’ rights, migrants’ rights, consumer rights, and so on. An important evolution of human rights has undoubtedly been their specification.28 The process of rights specification is due to the demand for concrete protection over and above general and abstract categories which human beings tend not to fit. Since their origin, human rights have moved away from abstract universality to concrete specifics. The status of human rights holder is less ontological than



27 In the sense that different traditions contributed to the drafting of the Universal Declaration. Glendon, Mary A. (2001), A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, New York: Random House. 28 Bobbio, Norberto, The Age of Rights (1990), Cameron, A. (trans.), Cambridge: Polity Press, pp.43-45.

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existential: it involves the conditions in which human beings need protection. This process of specification – as long as it protects individualities as much as possible – is an innovation in modern law. It can be seen as a deviance from – or a new development of – the idea of the unity and equality of the legal subject that is at the origin of modern legal systems.29 Human rights holders want to be considered individuals in their singularity. Appealing to status is a mid-way form of approaching individual rights holders in their concrete circumstances. Status reflects a generality: it is a condition shared by many individuals, even if not by all at the same time. This is one of the ways in which the struggle for equality is matched by the battle for differences.30 But the way human rights way assures the defence of originality and the uniqueness of human beings follows other paths as well. For this purpose, another characteristic of human rights grammar needs to be introduced, one that has recently become increasingly important: their force of antidiscrimination. Antidiscrimination is part of a process of equality that begins with general rules. As is well-known, the main legal force of inclusion – the primary sense of the universality of a positive law (which human rights have) – is grounded on justice as a generality of rules. It does mean that legal regulations are not privileges (made for an individual), but they possess – both in the case of legislative statutes and in the case of rules established by precedent – the character of universality.31 Universality is necessary for human rights because it is part of the process of their implementation. Nevertheless, the general character of rules is not sufficient to prevent the sort of inequality produced by the exclusion of some individuals,

 29

As is well-known, modern law differs from mediaeval law in the standardization of its subject. Part of its modernity coincides with the rejection of particularism and proliferation of personal status. The effort to build a rational system of law starting from the moral value of individuals has been claimed as an evident effect of the influence of Humanism on legal science. Villey, Michel (1975), La formation de la pensée juridique modern, Paris: Editions Monchretien. 30 Young, Iris M. (1990), Justice and the Politics of Difference, Princeton: Princeton University Press. 31 Obviously, this problem cannot be dealt with here. I am assuming that the difference between statutes and rules laid down by precedents is only a difference of degree.

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since general categories are built on distinctions. The universality of human rights also includes the dynamic principle of non-discrimination directed at preventing (unjustified) discriminations from coming into existence as general regulations recognizing certain rights to certain subjects, but not satisfactorily inclusively. The principle of nondiscrimination aims at correcting general rules that do not treat significant differences fairly, since each rule needs to identify the subject and each identification can be disputed. Usually, the discriminatory character of a general rule is discovered once the rule is applied: it is at that moment that significant differences can be noticed. There are many concrete reasons for accepting that in terms of human rights, non-discrimination is part of their grammar. Firstly, many important human rights documents affirm it. The American Convention on Human Rights in its first article says that it intends to protect rights and liberty declared “without any discrimination for reasons of race, colour, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.” In the European Convention on Human Rights, article 14 is dedicated to nondiscrimination, with the same content. Secondly, the idea that human rights have an anti-discriminatory character can be pushed to an extreme position by affirming that human rights are nothing other than a force for eliminating discrimination among humans. Historically, the link between human rights and nondiscrimination fits the thesis according to which the origin (or the recent revival) of human rights is an awareness of dire discrimination, as with the Jewish people. After this, other forms of discrimination have been addressed by human rights: against coloured people, women, the disabled, homosexuals. An important task of human rights is to remove all kinds of discrimination, and this is an aspect of their universality. This dynamism seeks to remove abstract categories that hide important differences not taken in account. From this point of view, human rights are pivotal cosmopolitan factors, even if their force of inclusion is limited since nonhuman beings are excluded. These features of human rights practice are consistent with the view of rights as playing an important role in removing bias: starting as rights of male, white, property-owning, protestant individuals, they became the rights of men and women, white and coloured, rich and poor, believers of every faith and atheists. It could be said that human rights have a de-

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biasing effect. In some way, this is a legal process and depends on the capacity of laws to change the moral climate, perceptions and judgements. In many important domains substantive legal rules exercise a de-biasing effect by steering people in more rational directions.32 They can force certain things to be taken into account (such as possible risks), or prohibit inefficient choices (frivolous litigation). Hence, legal rules respond to problems of limited rationality, emphasizing rational behaviour and discouraging what is unreasonable. The other side of the coin is the ability of legal rules to manipulate the addressees and to fail in respecting pluralism in controversial fields, which could be the case when the content of rules is debatable. This is a good reason for supporting democratic institutions: legal rules can be manipulated by governments, power groups or lobbies, and it is necessary to ensure as far as possible the democratic control over them, precisely for the sake of autonomy and pluralism. A moderate approach is one that considers legal choices as deriving from a contentious rationality involving a process of continuous review. An important part of human rights practice concerns its institutional character as a process of verifying reasons, not only in the form of rights justifications, but also the strategies employed in implementing those rights. The process begins in the social sphere (through activism and the claims of social movements), continues in political discussion and deliberation, then moves into legal discussion for adjudication, at various levels. As is well known, the last of these is the most appropriate for nondiscriminatory matters, provided it refers to individual cases to be treated as analogous. As we will see, a capital feature of human rights practice is precisely the crucial role of adjudication. Nevertheless, anti-discrimination clauses do not seem to create a generic and autonomous right to non-discrimination. Although participating in the dynamics of equality, non-discrimination does not have proper content but depends on another rule, highlighting the discrimination. Courts of Justice concerned with human rights confirm this dependence. 33 The prohibition of discrimination is coupled with another right: to private life, to freedom of expression and so on. Nondiscrimination works as a residual remedy (epistemologically, not for its

 32

Jolls, Christine & Sunstein, Cass R. (2006), ‘Debiasing Through Law’, Journal of Legal Studies, 35, pp.199-241. 33 Millns, Susan (2011), ‘Prospettive europee sulla discriminazione basata sull’orientamento sessuale’, Ragion pratica, 36 (2), pp.75-94.

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importance) in the context of human rights practice. This means that antidiscrimination is insufficient; it is not the aim of human rights. Examining practice, human rights need both lines of development, the first aimed at guaranteeing something (a good, a power, an immunity, or whatever) for someone, in the form of general rules, the second concerned with the elimination of residual discrimination associated with (inevitable or controversial) distinctions as required to identify general categories for which those rights must be assured. Practice needs to identify which “classes” of human beings have the right to what, because not everything can be guaranteed for everybody without seriously undermining the process of implementing rights. Potentially, the non-discriminatory force of human rights could wipe out the ability to recognize specific rights for specific categories. The more non-discrimination is emphasized, the more an exclusive cosmopolitan character must be attributed to human rights: non-discrimination alone tends to eliminate all distinctions. The distinction between migrants escaping from political persecution and migrants escaping from severe poverty leads to recognition of the right of asylum only for the former. That distinction remains controversial (in particular in terms of global justice). What is certain is that removing the distinction would have a strong impact on rights protection. The problem of the relationship between human rights and nondiscrimination is complex and is illustrated by one factor evident in some developments of human rights practice. What human rights holders sometimes demand is not goods or services, but more generally approval by the community of their life choices or plans. If anything, the recognition of goods or services is confirmation of a symbolic acceptance. New claims seek to obtain the social endorsement of various choices.34 Sometimes this is described as the “expressive” force of human rights. When homosexuals ask for the right to marry, they are seeking to make a statement of commitment before society, because they view that statement as a very important part of their lives. In response, society may recognize and dignify that commitment. 35 Other rights are similar: the right to wear scarfs or other kinds of cultural or religious symbols, or the claim to freedom of expression (even the right to be protected against the exercise of freedom of expression by others), and so on.

 34

Ricoeur, Paul (1990), Soi-même comme un autre, Paris: Éditions du Seuil. Nussbaum, Martha C. (2009), ‘A Right to Marry? Same-sex Marriage and Constitutional Law’, Dissent, (http://www.dissentmagazine.org/article/a-right-tomarry-same-sex-marriage-and-constitutional-law). 35

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Setting aside these concrete and controversial questions, if this reading is correct, human rights holders are seeking to establish an important relationship; in other words they are calling for inclusion in a sort of moral community. First of all, they are not self-sufficient individuals who reject intrusion from other individuals or institutions, as rights holders are sometimes described in liberal theory, people essentially interested in avoiding interference in their autonomous choices. In the logic of others’ rights, human rights practice requires interaction between human beings, at least in the form of symbolic acceptance.36 Ultimately, every claim to rights can be read as a claim to belonging in a shared community grounded on justice and equality, a community of morally accepted individuals in which each is a unit of moral concern. From this point of view, human rights practice tends to create a sort of universal moral community, and this is the extreme outcome of exclusive cosmopolitanism, associated with their force in avoiding discrimination. In some way, this development appears to produce the congruence of cosmopolitanism with moral universalism. But human rights are cosmopolitan in another sense as well. We now turn, for the last topic, to a short sketch of how human rights are transforming the international scenario. All the arguments presented deserve deeper attention: I have preferred a lighter presentation to present the overall picture of the inclusive cosmopolitan character of human rights.

4. Are human rights inclusively cosmopolitan? States, citizenship, international community The first step in human rights practice can be considered the 1948 Universal Declaration. Despite this, human rights acquired transformative force only many decades later, after de-colonization, when the sovereignty of post-colonial states affirming their independence was clearly enshrined in the right of peoples to self-determination.37

 36

This result is confirmed by the spread of reasoning appealing to disgust as contrary to the sense of humanity. See Nussbaum, Martha C. (2010), From Disgust to Humanity: Sexual Orientation and Constitutional Law, Oxford: Oxford University Press. 37 Moyn, Samuel (2010), The Last Utopia. Human Rights in History, Cambridge Mass.: The Belknap Press of Harvard University Press.

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Only at that point, along with nation states, did international institutions and organizations, including those from international civil society, join this practice and take on the protection of rights as their aim and goal, each working according to their role and scope. It is worth noting that even in the case of organizations belonging to international civil society, the battle for human rights is a battle for others’ rights: the rights of those who are not able to defend themselves, partly because violations come from within their own nations. From the outside it is easier to denounce abuses without the risk of facing reprisals. Part of the inclusive character of human rights is shown by their ability to involve non-governmental organizations of every kind in the work for others’ human rights. The practice of “naming and shaming” has proved to be a strong deterrent for human rights violations, many times more effective than legal sanctions. Their influence is crucial for establishing what a human rights violation is.38 The weak point of the role of international civil society in favour of rights is that we cannot ask movements and nongovernmental organizations to work for equality. Civil society, in particular global civil society, is the realm of spontaneity, inequality and fragmentation, and for this reason its work requires integration by political communities. Cosmopolitanism requires both states and the international community. The increase in human rights after the Seventies has many important and immediate implications internationally and domestically. The most evident is the revitalization of the idea of responsibility, a key concept in terms of human rights protection. From the point of view of states, this revival can be seen, for instance, in the doctrine of the “responsibility to protect.” As is well known, this was the case when a new international legal principle put forward in 2000 in the International Commission on Intervention and State Sovereignty Report, and later invoked by the Security Council, was used to justify sanctions against Kenya, Côte d’Ivoire and Libya. Setting aside momentarily the problem of military (humanitarian?) intervention, the key idea of the responsibility to protect is that states have more duties than rights, both in internationally and domestically.

 38

Risse, Thomas (2000), ‘The Power of Norms versus the Norms of Power: Transnational Civil Society and Human Rights’, in Florini, A. M. (ed.), The Third Force: The Rise of Transnational Civil Society, Washington DC: Japan Center for International Exchange and Carnegie Endowment for International Peace, pp.177211. See also Frost, Mervyn (2002), Constituting Human Rights. Global Civil Society and the Society of Democratic States, London & New York: Routledge.

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This development is opposed to the modern concept of sovereignty, consolidated in the eighteenth century and based on the “rights” of the state, that the dominant method of legal construction in public law is “derived” from the doctrine of the state. 39 A people, a territory and sovereignty comprise the state and some territorial rights follow from this concept: the right of legislation, war and peace, 40 jurisdiction, minting coins, levying taxes, regulating the use of natural resources and controlling borders. The top-down methodology prevents an approach to the state and its characteristics through the awareness of its historical nature 41 as a temporary construction, and then the questioning, without prejudice, of which of these rights are really adequate to the goals of the state or can be implemented differently without deeming the state obsolete.42 Today, many prerogatives of states are differently allocated: against the state’s monopoly on the production of laws, legal pluralism is becoming stronger; the market clearly aspires to dominate the use of resources; supranational entities are forcing a review of sovereignty in crucial fields such as border controls, the issue of currencies, and even in criminal law. All of these changes are controversial, but show that things can and do change. Territorial rights cannot be deduced from a concept of the state. Once the idea of the state as an organic whole, typical of the nineteenth century, is abandoned, the hypothesis that the holder of territorial rights is different from the state gains momentum. The people extend beyond the state not just in the sociological meaning (its

 39

Wilhelm, Walter (1958), Zur juristischen Methodenlehre im 19. Jahrhundert, V. Frankfurt am Main: Klostermann, Ch. IV. 40 The idea that war is one of the prerogatives of sovereign states (a territorial right, associated with the protection or enlargement of a territory) had been eliminated in international law by the end of the Second World War. At that time, it was clear that the most important goal of international law in relation to war was prevention, not regulation. The Charter of the United Nations recognizes only one condition in which war is legally permissible, i.e. self-defense. In this context, ius ad bellum is severely limited, although it does not disappear altogether: article 51 of the UN Charter speaks of a natural right to defense, but at the same time indicates the time at which this right expires, when the Security Council can take the necessary measures to guarantee peace and security in the international community. 41 Jellinek, Georg (1910), Das Recht des modernen Staates, I: Allgemeine Staatslehre, Berlin: Weber. 42 The “privilege” of debt and the “privilege” of natural resources are both cases of rules respecting sovereignty that the protection of human rights difficult. See Pogge, Thomas (2002), Ch. 6.

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population). The idea of a people involves a political element, which originates in civil society but takes its shape in the political community. Politics needs the state but is articulated outside it. This does not mean that the people is an entity preceding the state, but that social and political dynamics are distinguishable from those of the state and cannot fully be reduced to it. Nonetheless, revising the doctrine of the state and its territorial rights is problematic. In terms of rights holders, one possibility is to entitle individuals to territorial rights as individual rights; another is to identify certain groups or social entities as rights holders, interpreting territorial as collective rights.43 For our purpose, it is worth noting that when the rights of the state are ultimately attributed to individuals, it is because it is believed that the existence and legitimacy of the state depend on its ability to guarantee certain goods to individuals as such. This is only a partial answer because it does not explain how states exist, in the plural: a world state would be equivalent for individuals. This approach does not recognize any meaning for special relationships, affiliations, interdependences. A second answer attributes the holding of territorial rights to groups of individuals with relationships with one another: this is the logic of what is properly called a “people,” and is the approach chosen by international law, having been adopted for the Charter of the United Nations in San Francisco 1945, according to which the right of peoples to self-determination is a cardinal principle (leading, in fact, to the process of de-colonization and slowing down the emergence of human rights as a central issue of international relations). The meaning of the right to self-determination becomes controversial when it is founded on conceiving the people as a common identity (a nation). In this case, the right to self-determination implies that homogeneous groups – at the moment not constituted in states or forming parts of others – need to found an independent state in which their cultural preferences are decisive. The right to self-determination presumably includes the imperative that the world be structured – or rather restructured – following the criterion of respect for populations recognized as ethnically or culturally homogeneous. This point of view is supported both by facts, i.e. by the concrete demands of groups that claim their independence from existing states in which they do not recognize themselves (Walloons, Catalans, Basques, Kurds), and by reasoning, because of the importance of the cultural element in the identity of human beings, who need cultural backgrounds to make significant choices in

 43

Meisels, Tamar (2005), Territorial Rights, Dordrecht: Springer, Ch. 2.

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life. 44 However, this reading is based on a misunderstanding: the erroneous belief that the need for a cultural context to give meaning to free choices necessarily implies homogeneity and cohesion in the reference culture. 45 Insistence on homogeneity ignores the ability of politics to manage disagreement and differences.46 In general, the claim of homogeneity (including cultural homogeneity) takes us far from cosmopolitanism.47 The problem of territorial rights cannot be examined here, but can be summed up as the particularity requirement: Why this people? Why this land? 48 The doctrine of the state in the light of human rights can nevertheless request that states have some characteristics linked to their protection and to the rule of law. Last but not least, it probably requires a reconsideration of politics. These topics are challenging and cannot be dealt with here, where we will confine ourselves to sketching out two lines of evolution for this new picture, in the domestic and international legal domains. In the domestic domain, human rights stimulate the evolution of constitutional states. The central importance of human rights has driven what is called the process of constitutionalization of the person, 49 an important line of development in legal systems domestically and internationally. This process involves the recognition of human rights as objective values in the legal systems. It means the legal system is necessary for the protection of individuals. But the other side of the coin is that the importance of the person is a threat to the legal system itself, because respect for individual conscience increases the range of controversial questions, expanding the area and scope of moral disagreement, and



44 In this sense, see Kymlicka, Will (1995), Multicultural Citizenship: A Liberal Theory of Minority Rights, Oxford: Oxford University Press; Raz, Joseph (2001), Value, Respect and Attachment, Cambridge: Cambridge University Press. 45 Waldron, Jeremy (2009), ‘Two Conceptions of Self-determination’, in Besson, S. & Tasioulas, J. (ed.), Philosophy of International Law, Oxford: Oxford University Press, pp.397-416. 46 Waldron, Jeremy (1999), Law and Disagreement, Oxford: Oxford University Press. 47 Miller, David (2012), ‘Territorial Rights: Concept and Justification’, Political Studies, 60 (2), pp.252-68. 48 Wellman, Christopher H. & Simmons, John A. (2005), Is there a Duty to Obey the Law?, Oxford: Oxford University Press, pp.93-196. 49 Spaemann, Robert (1998), Persons. The Difference Between ‘Someone’ and ‘Something’, Oliver O’Donovan, O. (trans.), Oxford: Oxford University Press.

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challenging the cohesion of states.50 In this direction, human rights ask for increasing political participation and demand the accountability of those who exercise power and work in institutions. From the point of view of state organization, the constitutionalization of the person consolidates the priority of constitutions over states, i.e. states become the organs of their constitutions, and constitutions are tools for recognizing and protecting human rights.51 And, in fact, human rights and other values are recognized by modern constitutions, as the goals and aims of the state. This position introduces a clearly functional reading of the state. It is worth noting that constitutions also include other matters, associated with existing conditions of solidarity between individuals in the political community: the grounds of cooperation (mode and scope), the protection of the natural, cultural and artistic heritage, and so on. An important part of human rights practice is domestic and coincides with their constitutional guarantee. Here, human rights are considered fundamental rights, because they are protected by the fundamental law or constitution. The legal tool for realizing them is citizenship, conceived as the status for the recognition of rights. 52 Even if constitutions are universal, where they recognize human rights, they necessarily distinguish between insiders and outsiders, citizens and foreigners, with different normative positions in terms of fundamental rights. The rationale of this difference is the dual face of constitutions, which do not aim only to protect human rights but also to give form to a concrete political community that takes the defence of human rights as part of its institutional mission. The difference between citizens and foreigners is not irrelevant in terms of rights, and has consequently been censured. The thesis that citizenship is the last form of discrimination, after religion, race and gender is based on the consideration that citizenship is generally assigned through two forms of eligibility: ius sanguinis (descent from generations present in the territory) and ius soli (birth within the territory). Both elements are ultimately linked to the lottery of fate, which is arbitrary from the moral point of view. Limited corrective mechanisms certainly

 50

Evident from the increasing importance of conscientious objection and civil disobedience. 51 See also Trujillo, Isabel & Viola, Francesco (2014), Op.Cit., Ch. 2. 52 Citizenship has two souls: Roman, as status for rights, and Greek, as participation.

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exist, such as procedures for changing citizenship, but they too are often discriminatory because they introduce preferential criteria (former relationships or other preferences). 53 The aim of political institutions (including the state) should be to guarantee equality against chance distribution by fate. Hence, clearly, citizenship is not sufficient to protect human rights. On the one hand, within a cosmopolitan perspective, the territorial rights of the state and citizenship as its main legal tool are justified in terms of rights protection; on the other hand, they cannot be considered sufficient because the cosmopolitan character of human rights means precisely that these rights go beyond citizenship. In other words, human rights require but surpass citizenship. In addition, it is worth noting that, in the context of human rights practice, citizenship is a necessary means for protecting human rights but also is itself an individual right, precisely the right to citizenship (Universal Declaration, art. 15). The link between rights and citizenship is not only the idea that citizenship provides status for the recognition of rights. Together with this, and perhaps more incisively, the idea of citizenship is a right because it is recognized as an element of an individual’s identity, giving form to their belonging in a community and entitlement to that belonging; in other words, it expresses their inclusion. From this point of view, the practice of human rights seems to summarize Liberal and Community contributions, the first asserting the superiority of individual over collective interests; the second insisting on the crucial role of traditions and communities for individuals.54 Human rights admit on the one hand the relevance of tradition and culture for individual identity, and on the other hand the supremacy of the individual’s interests over collective concern. 55 Hence, once again, difference between the theory and practice of human rights is conformed. Not only political elements, but also cultural and territorial factors, together with the primacy of

 53

Ferrajoli, Luigi (2001), Diritti fondamentali, Rome-Bari: Laterza, pp.1-40. A comparative study of conditions for citizenship shows that legislations always use preference criteria. For a comparison of European policies on citizenship see Trujillo, Isabel (2002), ‘Cittadinanza e giustizia distributiva’, Ragion pratica, 18, pp.101-126. 54 Synthesized well in Kymlicka, Will (1991), Liberalism, Community and Culture, Oxford: Oxford University Press. 55 Dworkin, Ronald (1984), ‘Rights as Trumps’, in Waldron, Jeremy (ed.), Theories of Rights, Oxford: Oxford University Press, pp.153-167.

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freedom, are considered vital for individuals’ rights. The best example in this case is found in minority rights and the rights to a cultural heritage and political life. Human beings need allegiances and affiliations to survive and be free.56 This part can be concluded with the statement that sovereign states limit rights because their supreme power and proximity are the strongest threats to human rights protection; but the power of states and their proximity are necessary for human rights, because states are the main actors in their protection and implementation. From this point of view, the development of human rights practice does not in the least coincide with the disappearance of nation states, but with their transformation within a broader context, and in this sense human rights practice proves to be inclusively cosmopolitan. States become more important than before because they are the main actors in strategies fostering citizens’ rights. At the same time they are their worst enemy, through both direct violation and omission (the lack of policies and strategies necessary for their implementation). Sovereignty is a quality of power; citizenship is status for individuals. The tension between sovereignty and human rights depends on a certain interpretation of the former. The idea of a supreme power within, independent beyond, does not conflict with the priority of law over politics. On the contrary, it is an important requirement of the rule of law within the state and in the international domain. But together with the rule of law, also important is the existence of other communities of different sizes, where citizenship as participation could be improved. The last point refers precisely to the idea of a world community understood as a polis. This topic can be dealt with starting from some transformations in the international domain attributable in some manner to human rights and their inclusive cosmopolitanism. These rights not produce a “perfect” international polis,57 but they certainly contradict the

 56

Part of the appeal of cosmopolitanism is its ability to represent variously complex repertoires of allegiance, identity, and interest, together with individual concern. Vertovec, S. & Cohen, R. (eds.) (2002), Conceiving Cosmopolitanism. Theory, Context, and Practice, Oxford: Oxford University Press, p.4. 57 As is well known, the idea of an international polis introduces a methodological problem, what used to be called the ‘domestic analogy.’ In a cosmopolitan perspective the international polis cannot be similar to the domestic polis.

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idea that the world community is simply a modus vivendi without cooperation (in the meaning of communication as common action). The first refutation of the latter hypothesis is provided by the international tools for assuring human rights. As is well known, there has been abundant criticism of the inadequacy of international law to ensure rights protection. Nevertheless, many mechanisms deemed imperfect for controlling a state’s compliance with human rights – albeit unsatisfactory – produce forms of voluntary cooperation. One example is the universal periodic review mechanism, first for the Human Rights Committee, now for the United Nation Human Rights Council.58 In practice, through this monitoring strategy the compliance of states is verified, with the declaration of deficiencies in rights implementation inside the territory of the offending states.59 Another aspect of the international protection of human rights is a growing multilevel judicial system of courts working either in addition to, and interacting with, domestic courts (for instance, the European and American Courts of Human Rights), or replacing domestic courts (the International Criminal Court). Added to with these formal structures, significant for the institutional design of the world community, are other important developments, such as the dialogue between judges and the cross-fertilization of legal systems, mostly in relation to the protection of human rights. These phenomena follow a bottom-up model of integration between legal systems, provided they are promoted by judges and lawyers or by transnational associations of lawyers and judges, and can be more effective than top-down institutional design.60 Again, the building of the world community depends on international cooperation. In most cases it involves voluntary compliance with international law – and hence there are many instances of the contrary – but is nonetheless effective. It involves political compliance where it is the result of the free cooperation of equals.



58 This system of periodic reviews was introduced by Resolution ECOSOC 624 B (XXII) dated 21 August 1956 and last reviewed in 2006. 59 Gaer, Felice D. (2007), ‘A Voice Not an Echo: Universal Periodic Review and the UN Treaty Body System’, Human Rights Law Review, 7, 1, pp.109-139. 60 Jacobs, Francis G. (2003), ‘Judicial Dialogue and the Cross-Fertilization of Legal Systems: The European Court of Justice’, Texas International Law Journal, 38, pp.547-556.

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Human rights articulate various levels of interdependence (global and local) on the basis of cooperation. Usually, the international principle indicated is subsidiarity, according to which decisions must be taken at the level which is as close as possible to citizens. 61 Following that principle, the closest institution to the people is given the task and other institutions, by the same token, do not get involved. But the logic of responsibility is complementary to subsidiarity, and this means that the same task can and must be pursued by different actors. This is another parameter of inclusive cosmopolitanism. Although talk of the constitutionalization of the international legal system would be entirely pretentious, another point, related to unity, is worth mentioning. A community needs some core values, and human rights are increasingly being identified as precisely such values. 62 International lawyers emphasize how the system of human rights law is but one of the aspects of international law, and may conflict with other, separate bodies (such as international humanitarian law or commercial law). But this is only partially true. In fact the expansion of human rights is introducing some changes into inter-state law, along the lines of international law before the Seventies. On the one hand, human rights are part of the content of the ius cogens, the peremptory norms, from which no derogation is permitted and that do not allow self-enforcing infringement as a response to non-compliance by partners. When we think of the international community as an acephalous community, we are identifying a power above all others that is lacking, not necessarily a law that is lacking. Without centralized international power, on their own states developed a way of protecting their positions, through selfenforcing remedies. But international peremptory norms exclude these kinds of remedies in some areas and precisely in the realm of human rights. In the context of the disputed unity of international law, one striking story involves the relationship between human rights and humanitarian law. Human rights law shares some features with other bodies of international law, such as humanitarian law. It is well known that the International Court of Justice has interpreted the relationships between

 61

Art 5 Treaty on European Union. Brown, Chris (1995), ‘International theory and international society: the viability of the middle way?’, Review of International Studies, 21, pp.183-196. This article discusses three different readings of international relations: system, society, community. For the last, a common core of values is required.

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34

these bodies of international law according to the traditional criterion lex specialis derogat generali, considering human rights as the general law humanitarian law as the special case. 63 The practical result is the prevalence of humanitarian law over human rights law; hence some limitations to human rights are accepted. But paradoxically this way of interpreting human rights law confirms its centrality in international law, and in particular presupposes that humanitarian law goes in the same direction as human rights, since the Latin maxim establishes that the special rule prevails if and only if it can be shown to be a better application of the general rule to a concrete case. In addition, the interpretive criterion is used in the context of a single system – against the idea of international law as a sum of different, utterly independent bodies – because general and special rules pursue the same goal. The problem is the acceptance of war in international law, creating a hefty paradox in human rights protection. On the one hand the response to human rights violations suggests the use of force in some cases, because these violations must be stopped. On the other, the protection of human rights rules out war because of the inevitable violation of human rights in war. The most urgent challenge for the international community is to revise the means for the use of force in order to avoid war.





63

For an overview, see Orakhelashvili, Alexander (2008), ‘The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence?’, The European Journal of International Law, 19, 1, pp.161-182.

DYNAMIC COSMOPOLITANISM: A BRIEF SKETCH WITH A SPECIAL EMPHASIS ON KANT GEORG CAVALLAR UNIVERSITY OF VIENNA

In recent years, commentators have elaborated on various forms and multiple layers of cosmopolitanism. Many have followed Pauline Kleingeld’s distinction into different types or forms of cosmopolitanism, such as moral, commercial, legal or cultural.1 This has triggered a creative and confusing trend to add a range of adjectives to give an apparently imprecise concept more substance, or to refine it. We can read, among others, about ‘exclusionary cosmopolitanism’, ‘oppositional cosmopolitanism’, ‘eccentric cosmopolitanism’, ‘consumer cosmopolitanism’, ‘banal cosmopolitanism’ or ‘emancipatory cosmopolitanism’.2 To add to the confusion, I want to contribute another refinement: dynamic cosmopolitanism. I define cosmopolitanism as the belief, theory or view that attaches importance to the community of all human beings. Static cosmopolitanism is the belief that all humans already belong to some sort of community; dynamic cosmopolitanism holds that this community is a goal, that it should be formed, cultivated and promoted. In this chapter, I claim that dynamic cosmopolitanism is typical of modernity, and I try to understand what is distinct about it. I also suggest that Kant’s philosophy is the most succinct formulation of dynamic cosmopolitanism. My goal is to offer a brief outline – nothing more than a

 1

Cf. Kleingeld, Pauline (1999), ‘Six Varieties of Cosmopolitanism in Late Eighteenth-Century Germany’, Journal of the History of Ideas, 60, pp.505-24; Kleingeld, Pauline (2012), Kant and Cosmopolitanism: The Philosophical Ideal of World Citizenship, Cambridge: Cambridge University Press. 2 For an introduction see Cavallar, Georg (2011), Imperfect Cosmopolis: Studies in the History of International Legal Theory and Cosmopolitan Ideas, Cardiff: University of Wales Press, pp.1-11.

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sketch - of the historical development, to delineate the sort of the dynamics of cosmopolitan thinking since Vitoria.

1. Looking for possible causes: Understanding human nature as dynamic – transcending boundaries The story of modernity has been told in numerous ways: by Hans Blumenberg, who, in Die Legitimität der Neuzeit 3 emphasized the independence and originality of modernity, or by Charles Taylor, who, in Sources of the Self and A Secular Age, rejected the ‘subtraction’ theory of secularization and pointed at the complex development of modern identity within Christian reform movements. Hans Schelkshorn has characterised modernity as a dialectical process of going beyond boundaries – he calls it Entgrenzungen. The key modern ideas are therefore curiositas, the vis creativa of the human being, perfectibilité, and later progress.4 According to Schelkshorn, the beginnings of modernity can be traced back to three ideas of Renaissance philosophy: 5 first, the ideas of a universe without boundaries and of insatiable curiositas concerning the world in the thought of Nicholas of Kues (1401-1464); secondly, the idea of the creative power of the human being developed by Giovanni Pico della Mirandola (1463-1494), who emphasized the vis creativa of humans, and characterized in Oratio de hominis dignitate (1486-87)6 the individual as ‘tui ipsius quasi […] plastes et fictor’, as a designer and creator of oneself.7 Though humans did not create themselves ex nihilo since they were God’s creatures, they had a range of possibilities at their hands which made self-formation possible and catapulted them beyond the narrow laws of nature. The third major idea of the Renaissance was the ‘idea of global moral responsibility’ and of a global ‘community of communication’, Vitoria’s ‘homo cosmopoliticus’ (see below). A key step in modern moral philosophy was the discovery – not the invention - of autonomy. Kant’s ‘fact of reason’ is not something ‘given’

 3

Blumenberg, Hans (1966), Die Legitimität der Neuzeit, Frankfurt: Suhrkamp. Schelkshorn, Hans (2009). Entgrenzungen. Ein europäischer Beitrag zum Diskurs der Moderne, Velbrück Wissenschaft: Weilerswist, pp.18-24. 5 For the following see Schelkshorn, Hans (2009), Op.Cit, pp.93-298. 6 Mirandola, Giovanni Pico della (1990), De hominis dignitate: Über die Würde des Menschen, Lateinisch-Deutsch, ed. August Buck, Hamburg: Meiner. 7 Ibid., p.6. 4

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(a common misunderstanding shared by Jerome B. Schneewind in his excellent book), but ‘made’ by the human agent: in the process of deliberation, she tries to find in herself a maxim that can be universalised, and consistently upheld by her own practical reason. In this process, she ‘makes’ – the Latin term is ‘facere’ – her own law (thus Kant’s term ‘fact of reason’). The history of this process of moral self-awareness is a long and complicated story, brilliantly retold in particular by Schneewind. The starting point is the old, traditional understanding of morality as obedience – towards God, the Deity, the cosmos or nature; the development reaches its climax in the idea of autonomy and self-governance of the moral agents. ‘The new outlook that emerged by the end of the eighteenth century centred on the belief that all normal individuals are equally able to live together in a morality of self-governance’. 8 The champions of this gradual intellectual development are numerous and diverse; Schneewind starts his story with theologians like St. Thomas and Luther. The turning point came in the early eighteenth century, when this new theory became ‘self-conscious’;9 significantly, Daniel Defoe wrote his famous novel at that time. The revolutionaries are the forgotten Crusius, Rousseau, Reid, Kant, and Bentham in the second half of the century. The new concept of morality as autonomy had implications for cosmopolitanism. First of all, in theory, self-governance was a capacity all humans shared equally; it bestowed dignity on each human regardless of class, education and intellectual capacities. Kant 10 famously held that ‘common human reason’ helped ordinary humans to have an implicit if only vague moral knowledge, and philosophers like Socrates merely make them attentive to their own reason’s principle.11 This was in contrast to the older conception of morality as obedience, and even in contrast to modern authors such as Locke, who ‘wanted plowmen and dairymaids to take their

 8

Schneewind, Jerome B. (1998), The invention of autonomy. A history of modern moral philosophy, Cambridge: Cambridge University Press, p.4; see also Brender, N. and Krasnoff, L. (eds.) (2004), New Essays on the History of Autonomy: A Collection Honoring J. B. Schneewind, Cambridge: Cambridge University Press. 9 Schneewind, Jerome B. (1998), Op.Cit, p.5. 10 References to Kant’s works refer to the volume and page of the German Academy of Sciences edition. 11 Kant, Immanuel, Groundwork, 4: 404. Cf. more passages at Munzel, G. Felicitas (1999), Kant's Conception of Moral Character: The "Critical" Link of Morality, Anthropology, and Reflective Judgment, Chicago: The University of Chicago Press, pp.66-7 & 187-8.

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morals from the pulpit’.12 Secondly, morality became procedural: moral maxims were the result of personal reflection and approval; the moral agents looked for inner coherence and consistent principles as opposed to self-contradiction. Third, moral knowledge was meta-knowledge of one’s own mode of thinking, not metaphysical knowledge of a pre-established moral order. In this sense, the moral world was created by the selflegislating agent, irrespective of the world in itself not accessible to humans.13 The upshot was the dynamic idea of perfection, especially in the area of morality; initially at the individual level, since the 1780ies also at the level of the whole species. Any historical narrative has to avoid familiar fallacies, for instance, the binary juxtaposition of Ancient or Medieval philosophy versus modern philosophy, where the former is considered static and the latter is dynamic. A case in point is Hobbes. In his famous attack on Aristotle’s notion of the human being as a zóon politikón, Hobbes contrasts the allegedly Aristotelian conception of humans as by nature ‘born fit for society’14 with his own anthropological assumptions. He concludes that the origin of societies lies ‘not in mutual human benevolence but in men’s mutual fear’15 and that consequently, ‘man is made fit for Society not by nature, but by training’.16 Training is the English translation of disciplina, with familiar connotations such as systematic instruction, the raising and nurturing of infants or self-control. ‘Not by nature, but by training’: this phrase seems to neatly juxtapose Aristotle’s static ancient philosophy with Hobbes’ own dynamic and modern philosophy. However, Aristotle could be defended with the simple argument that training and education does play a crucial role in his political philosophy, because humans have natural potentials and dispositions that have to be actualized in society or the polis – a dýnamis or possibility that might be or might not be realized.17 The upshot is that we should not think in opposites and juxtapositions but rather imagine a dynamic continuum with significant staging posts like Mirandola, Vitoria or Hobbes himself. In the next sections, I follow the

 12

Schneewind, Jerome B. (1998), Op.Cit, p.523. Ibid., 522-5. 14 Hobbes, Thomas (1998), On the citizen [1641], Richard Tuck, R. Silverthorne, M. (eds.), Cambridge, New York: Cambridge University Press, I, 2, p.22. 15 Ibid. 16 Ibid., p.25, my emphasis. 17 Cf. Masek, Michaela (2011), Geschichte der antiken Philosophie, Wien: Facultas, pp.207-8. 13

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familiar and perhaps at times artificial division into various types of dynamic cosmopolitanism, being fully aware of the fact that they often interact and overlap, like for instance moral, legal and commercial cosmopolitanism. I also add religious cosmopolitanism as a new type.

2. Dynamic moral cosmopolitanism: from the vocation of the human being to the vocation of the human species Moral cosmopolitanism posits universal rights and obligations applicable to all human beings, who belong, or should belong, to a single, moral and global community. 18 Put bluntly, ancient Stoic philosophy endorsed a fairly static moral cosmopolitanism; a teleological understanding of nature and the modern ideas of the vis creativa of the human being, of perfection (perfectibilité), of vocation (Bestimmung), of autonomy as self-legislation, of formation (Bildung) and progress paved the way for dynamic moral cosmopolitanism, the belief that the moral community is not something given, but a task, that it should be established, formed, cultivated, promoted and intensified. The idea of perfection can be traced back to Johann Wilhelm Leibniz and his fragment Von der Glückseligkeit (1694/98). Rousseau famously referred to the human ‘faculté de se perfectionner’ in his Discours sur l’origine et les fondements de l’inégalité parmi les homes (1755). Isaak Iselin posited an ‘appetite for perfection’ and used the concept for his philosophy of history.19 In this section, I am going to focus on the concepts of vocation and formation, novel ideas which originated in the middle of the eighteenth century. Vocation encompasses the following aspects:20 the human being is defined in a particular way, usually as an animal rationale or, implicitly, as an animal rationabile that has the task to develop her/his rational potential. Second, the human being is contrasted with other beings of a similar kind, usually with animals. Third and most importantly, the human being is defined as a being with an inherent telos; this leads to a moral

 18

Cf. Kleingeld, Pauline (1999), Op.Cit., p.507. See Sommer, Andreas Urs (2006), Sinnstiftung durch Geschichte? Zur Entstehung spekulativ-universalistischer Geschichtsphilosophie zwischen Bayle und Kant, Basel: Schwabe, pp.400-7. 20 Cf. Tippmann, Caroline (2011), Die Bestimmung des Menschen bei Johann Joachim Spalding, Marburger Theologische Studien vol. 114, Leipzig: Evangelische Verlagsanstalt, pp.125-42. 19

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teleology. Vocation is a task; it is identical with self-determination; and it leads to the concept of Bildung (formation): Bildung relates to form (forma) and formation (formatio), but also encompasses image (imago, Abbild) as well as imitation (imitatio, Nachahmung). 21 Following one’s vocation is a procedure and dynamic process; we still have to become who we are. Protestant theologian Johann Joachim Spalding (1714-1804) was one of the leading neologians in Germany, whose bestseller Die Bestimmung des Menschen (1748) 22 saw eleven editions. The book sparked the subsequent debates in Germany on the topic up to roughly 1800. Spalding held that a moral conduct of life was our vocation.23 His text is a selfreflection in the form of an inner monologue, and is existentialist in the sense that the ‘proper value’ and ‘the whole constitution of my life’,24 the ‘guiding maxims and the whole plan of our lives’ is its focus.25 According to Spalding, man’s vocation is immortal happiness based on virtue. Influenced by Stoic philosophy, by Christian theology and by Anthony Shaftesbury, Spalding argues for the primacy of virtue and moral character in one’s life. Kant took up the concept of vocation from Spalding and his contemporaries and refined it. In his Lectures on pedagogy (1803), for instance, he wrote: ‘Many germs lie within humanity, and now it is our business to develop the natural dispositions proportionally and to unfold humanity from its germs and to make it happen that the human being reaches his vocation.’ 26 Humanity (die Menschheit) mentioned in the quotation is the intelligible, moral element in humans or rational beings.27

 21

Ibid., p.178. Spalding, Johann Joachim (2006), Die Bestimmung des Menschen (1748), Albrecht Beutel, A., Kirschkowski, D. & Prause, D. (eds.), Tübingen: Mohr Siebeck. 23 Ibid., 11-4, 32-4, 43. For a full interpretation see Tippmann, Caroline (2011), Op.Cit. 24 Ibid., p.1. 25 Ibid., p.32. 26 Kant, Immanuel, LP, 9: 445. See also Collins, 27: 470-1. More passages can be found in: Brandt, Reinhard (2003),‘The Guiding Idea of Kant’s Anthropology and the Vocation of the Human Being‘, in Jacobs, B. and Kain, P.(eds.), Essays on Kant’s Anthropology, Cambridge: Cambridge University Press, pp.85-104. Brandt, Reinhard (2009), Die Bestimmung des Menschen bei Kant, second edition, Hamburg: Meiner. 27 Cf. Kant, Immanuel, LP 9, p.442. 22

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Later in the lectures, Kant emphasised the same cluster of ideas: humans themselves have to develop their dispositions, since ‘Providence has not placed them already finished’ in them;28 the ultimate vocation is morality, but cultivated ‘proportionally’ in combination with prudence and skilfulness. The dynamic elements are the following: Kant held that for individuals cultivation, civilization and moralization or moral development are part and parcel of a process. This dynamic element is also hinted at by Kant when he writes that ‘formerly, human beings did not even have a conception of the perfection which human nature can reach. We ourselves are not even yet clear about this concept.’29 There is a cognitive aspect, since humans have the task to develop a proper concept of education, which has the potential to become a science, that is, a systematic and coherent theory. All this is very different from Stoic cosmopolitanism. ‘A universal community to which human beings already belong (in some sense the Stoics wished to specify) is incongruent with Kant’s thesis in the Anthropology presenting a way of accomplishing this (not taken as a metaphysical given, as the Stoics did).’30 The development since the 1750ies can be summarized as follows: the debate moved from the vocation of the individual (the sole focus of inquiry in Spalding’s first edition) to the vocation of the human species. My key authors are Kant, Schiller and Novalis, but I would also like to point at authors such as Anne Robert Jacques Turgot, Johann Friedrich Wilhelm Jerusalem and Isaak Iselin – who initiated the move - or forgotten German intellectuals interpreted in an essay by Giuseppe D’Alessandro.31 According to Kant, the emphasis on the whole species is required since individuals cannot reach their vocation, only the species can do that.32 A ‘plan for education’ has therefore be designed ‘in a cosmopolitan

 28

Ibid., p.446. Ibid., p.445. 30 Kaldis, Byron (2013)‚ Worldhood. Between Scholasticism and Cosmopolitanism‘, in Baci, S. et al. (eds.), Kant und die Philosophie in weltbürgerlicher Absicht, vol. 1, pp.589-602, p.599. 31 Cf. D‘Alessandro, Giuseppe (1999)‚ ‘Die Wiederkehr eines Leitworts. Die "Bestimmung des Menschen" als theologische, anthropologische und geschichtsphilosophische Frage der deutschen Spätaufklärung‘, in Hinske, N. (ed.), Die Bestimmung des Menschen, Hamburg: Aufklärung, pp.21-47. See also Sommer Andreas Urs (2006), Op.Cit., pp.133-50, 228-68, 418-9. 32 Kant, Immanuel, LP 9, pp.445-6. 29

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manner’,33 which first specifies and outlines this goal (the vocation of the humans) and, secondly, provides the methods and means how to reach it. Why can perfection only be reached by the species, not by individuals? One reason is the brevity of the lives of individuals; the second, more important factor is that reason is in need of cultivation which ‘needs attempts, practice and instruction in order gradually to progress from one stage of insight to another.’ 34 This is the empirical side of the gradual progress towards perfection (the idea of progress is an assumption based on our reflective power of judgment). In educational theory, this requires, for instance, experiments 35 and the conscious attempt to turn education into a science.36 Since the development of all natural predispositions takes place in time, some peoples may do better than others to achieve this, or may have reached different stages in their evolution. I believe this is the most appropriate way to interpret Kant’s often shocking statements on race (an issue that has briefly to be touched upon in an essay on Kant’s cosmopolitanism). Interpretations are diverse, and range from Kleingeld’s lenient assessment that Kant had second, more cosmopolitan thoughts on race to Bernasconi’s claim that Kant’s racism is an integral part of his philosophy and contributed to the 19c century discourse on race.37 Kant endorsed a form of ‘western-Eurocentric gradualism.’ 38 Non-Europeans were backward children, but – according to the later Kant – capable of Bildung or education and possible future members of good standing in the international legal and moral community. This form of paternalism – which is uncosmopolitan by contemporary academic standards - holds that even children are persons and have rights, and they may eventually grow up; but they are still children who are in need of guardians.

 33

Ibid., p.448. Kant Immanuel, Idea, 8, p.19, Beginning, 8, p.115 and LP, 9, p.445. 35 Ibid., LP, 9, p.451. 36 Ibid., 9, p.447. 37 Kleingeld, Pauline (2012), Op.Cit., pp.92-123, Bernasconi, Robert (2010), ‘The Philosophy of Race in the Nineteenth Century’, in Moyar, D. (ed), Routledge Companion to Nineteenth Century Philosophy, London: Routledge, pp.498-521. 24-6; see also Cavallar, Georg (2012), Op.Cit., pp.97-8. 38 Louden, Robert B. (2000), Kant’s Impure Ethics. From Rational beings to Human Beings, Oxford: Oxford University Press. p.178; see also Hedrick, Todd (2008), ‘Race, Difference, and Anthropology in Kant’s Cosmopolitanism’, Journal of the History of Philosophy, 46, pp.245-68, pp.264-7. 34

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Since the 1780ies, several authors developed a philosophy of history that distinguished between the vocation of the individual and that of the species (for the following see D’Alessandro, 1999). The authors can be divided into two groups. The first sided with Mendelssohn and held that only individuals could reach their vocation, not the whole species. The most prominent representative of the second group was Kant: in Idee zu einer allgemeinen Geschichte in weltbürgerlicher Absicht (1784), he sided with Thomas Abbt, rejected Mendelssohn’s claim, and argued that the whole species should and could reach its vocation at the end of history.39 Other representatives of the second group were the theologian Immanuel Berger (1773-1803), Karl Heinrich Ludwig Pölitz (1772-1838), Dietrich Hermann Hegewisch (1740-1812) and Johann Gottfried Gruber (17741851). Since they believed in the vocation of the species, they were practically ‘forced’ to continue to develop some form of philosophy of history. Like Lessing, Pölitz explicitly asserted that humankind went through different stages of development, with the third stage eventually finding a balance between sensibility, understanding and reason.40 The 1790ies continued the shift from the theological discourse concerning man’s vocation to the perspective of the philosophy of history. It is remarkable, tough, that these authors usually kept a role for God in history, for instance, as a ‘moral educator’. Friedrich Schiller went beyond Kant with his theory of aesthetic education, as developed in Letters on the Aesthetic Education of Man (1795): he agreed with Kant that reason was capable of finding its own moral law, but held that it was not powerful enough to motivate humans to act. Art can unify the two aspects of human nature, reason and sensibility. 41 Like many German intellectuals, Schiller cherished the

 39

Kant, Immanuel, TP, 8, pp.307-8. Cf. D’Alessandro, Giuseppe (1999), Op.Cit., p.39. 41 Cf. Schiller, Friedrich (2009), Über die ästhetische Erziehung des Menschen in einer Reihe von Briefen, kommentiert von Stefan Matuschek, Frankfurt am Main: Suhrkamp, pp.15-6,103, 125-281; for introductions see Bollenbeck, Georg (2007), Friedrich Schiller. Der unterschätzte Theoretiker, Köln und Wien: Böhlau, pp.22110; Murray, Patrick T. (1994), The Development of German Aesthetic Theory from Kant to Schiller: A Philosophical Commentary in Schiller’s ‘Aesthetic Education of Man’, Lewiston, Queenston: Lampeter; Zelle, Carsten (2005), ‘Über die ästhetische Erziehung des Menschen in einer Reihe von Briefen (1795)’, in Luserke-Jaqui, M. (ed.), Schiller-Handbuch. Leben – Werk – Wirkung, Stuttgart: Weimar, pp.409-445. 40

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principles of the French Revolution, but rejected the means applied, especially the use of violence and terror. He came to believe that the revolution had failed because people had not been sufficiently educated in their characters.42 Like Kant, Schiller defended a concept of the vocation that encompassed the individual and at the same time the human species. He distinguished between the enlightened, cosmopolitan and liberal Weltbürger with a moral disposition from the selfish Weltmann who had cultivated his understanding and prudence but not his practical reason.43 Like Kant (but perhaps more explicitly), Schiller insisted on the proportionate development of capacities as a precondition of the ‘aesthetic state’ in the future.44 Individuals as well as the species only reach their vocation if their development passes through three distinct phases: the physical condition where the human being is exposed to the power of nature, the aesthetic condition where she emancipates herself from it, and the moral condition where she controls the power of nature – but in complete harmony with nature.45

3. Dynamic legal cosmopolitanism: the whole world as legislator When pondering how to deal with the cannibals he has discovered on his island, Robinson Crusoe, in the novel by Daniel Defoe (1712), referred to the atrocities of the Spanish conquerors towards the native American ‘barbarians’ and cannibals, ‘spoken of with the utmost abhorrence and detestation by even the Spaniards themselves at this time […] as a mere butchery.’ Defoe was obviously familiar with the anti-Spanish and antiCatholic propaganda in some Protestant countries, especially in the Netherlands and England, a propaganda that relied heavily on the writings of Las Casas, especially his Brevíssima relación (1552), with the conquest of the Americas depicted as short of genocide and filled with horrible crimes.46

 42

Cf. Schiller, Friedrich (1795), Op.Cit., pp.32-4. Ibid., pp.13, 21, 139, 157. 44 Ibid., pp.29-30. 45 Ibid., pp.97-103. 46 Cf. Ittersum, Martine Julia van (2006), Profit and Principle. Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies 15951615, Leiden: Brill.pp.53-104; Maltby, William S. (1971), The Black Legend in England, Durham: Duke University Press. 43

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Francisco de Vitoria played some role in these disputes. In this section, I am going to take a brief look at Vitoria: Following Hans Schelkshorn, I interpret Vitoria as one of the key authors contributing to the breaking down of geographical boundaries and the birth of cosmopolitan morality. According to Schelkshorn, the third major idea of the Renaissance was the ‘idea of global moral responsibility’, of a ‘global community of communication’, 47 Vitoria’s ‘homo cosmopoliticus’, triggered by the breaking down of geographical boundaries in the wake of the discovery, conquest and exploitation of new continents by the Europeans. The discoveries challenged traditional geographical and cosmological worldviews, especially the idea of World Empire, usually interpreted as hegemony over the known world, the oikumene.48 Vitoria rejected the idea of World Empire in the first part of the famous Relectio de Indis (1539).49 He asserted that both imperial and papal claims were unfounded. This rejection strengthened the ethical universalism of the Christian tradition that had been distorted by numerous distinctions and qualifications, such as the difference between pagans and Christians or the concept of natural slavery. Geographically, the Stoic idea of the society of mankind was no longer limited to the oikumene or the extension of the empire; it had become truly global. Secondly, this community was not only based on the ius naturale and the traditional norms of ius gentium, but also on the (presumed) consent of the human species, since ‘the whole world, which is in a sense a commonwealth, has the power to enact laws.’50 This added a dynamic element: the global community had to be promoted, and it was the duty of humans to enter into peaceful relations with each other to contribute to the deepening of this society and to further universal

 47

Schelkshorn, Hans (2009), pp.89, 283-4. Cf. Schelkshorn, Hans (2013), ‘The change of geographical worldviews and Francisco de Vitoria’s Foundation of a modern cosmopolitanism‘, in Sigrid, M. & Schweiger, C. (eds.), Between Creativity and Norm-Making. Tensions in the Later Middle Ages and the Early Modern Era, Leiden and Boston: Brill, pp.165-181. 49 For the following see Schelkshorn, Hans (2013), Op.Cit., pp.181-8; in addition, Cavallar, Georg (2002), The Rights of Strangers: Theories of international hospitality, the global community, and political justice since Vitoria, Aldershot: Ashgate, pp.80-119; Cavallar, Georg (2013), ‘From Francisco de Vitoria to Alfred Verdross. The Right to Preach the Gospel, the Right of Hospitality, and the International Community”, in Bunge, K., Schweighöfer, S., Spindler, A. & Wagner, A (eds.), Kontroversen um das Recht. Beiträge zur Rechtsbegründung von Vitoria bis Suárez, Stuttgart, Bad Cannstatt: frommann-holzboog, pp.1-35. 50 Vitoria, Francisco de (1528), ‘On Civil Power’, in: Political Writings, Anthony Padgen, A. and Lawrance, J. (eds.), pp.3-44, p.40. 48

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solidarity. One means was communicatio among humans, including the exchange of ideas, but also commerce or trade and the right to migrate. Vitoria’s revolution can also be deciphered in Daniel Defoe’s novel Robinson Crusoe: after some deliberation Robinson moves his focus - and this is a new element - from punishing the perpetrators to saving the innocent. The natives are in principle human beings (though seen as immature and in need of education), and the victims are a focal point of concern. Crusoe, however, avoids the pitfalls of modern cosmopolitanism as envisioned by Vitoria, who developed the first coherent theory of ‘humanitarian intervention.’ In serious cases of human rights abuses communities had the duty to intervene on behalf of the victims.51 Since the Christian Spaniards had the unilateral right to preach the gospel, the intended humanitarian intervention could easily turn into an imperialist intervention with the aim of destroying the cannibals and establishing Spanish rule. Crusoe, by contrast, kept the humanitarian element: he established the maxim that only if one of the victims of cannibalism should attempt to escape, Crusoe would be entitled to intervene; otherwise, the natives were left to themselves. I have to make a long and complex story very short, and want to briefly mention one consequence of Vitoria’s imperfect cosmopolitan morality: up to the eighteenth century, it became fairly commonplace among many Western European intellectuals to criticize the Spanish conquista – I claim not only for political, religious or ‘ideological’ reasons (Spain had many enemies all over Europe), but also because the moral reasoning underlying the criticism was shared. A string of European authors, among them de Soto, Montaigne, Turgot, Wolff, Raynal, Diderot, Kant or Condorcet expressed their ‘dissatisfaction’ – to put it mildly – with the conduct of fellow-Europeans.52 Vitoria’s idea of a dynamic global commonwealth was taken up by Christian Wolff, who developed a culturally sensitive law of nations. 53 While the natural or necessary law of nations was the application of natural law to nations, the volitional or voluntary law of nations was based on right reason and the presumed or implicit consent of nations or gentes. It had to be compatible with natural law, but was open to evolve towards

 51

Cf. Cavallar, Georg (2002), Op.Cit., pp.98-107. Ibid., pp.255-9; Schelkshorn, Hans (2009), Op.Cit., pp.395-407. 53 For the following see Cavallar, Georg (2002), Op.Cit., pp.208-15 and Cavallar, Georg (2011), Op.Cit., pp.30-33. 52

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the idea (in Wolff’s terminology: ‘fiction’) of the civitas maxima or the global or universal commonwealth. Though Wolff described it as ‘a kind of democratic form of government’, he seriously hampered his own conception by taking recourse to a culturally contingent element, namely the approval of ‘the more civilized nations.’54 When we turn to Kant, interpreters are confronted, as in Vitoria and Wolff, with the task of separating the rational or universal from the cultural. The current debates concerning Kant’s statements on race are a case in point. If we leave this issue aside and focus on Kant’s cosmopolitan legal theory – a method of isolation that might be mistaken , then we can see that the idea of a dynamic evolution of the global commonwealth is spelled out more clearly and I think more coherently. One crucial factor was the new philosophy of history, which underlined the dynamic dimension, assumed a ‘cosmopolitan predisposition in the human species’55 that was destined to unfold, and argued reflectively for a telos, namely a ‘progressive organization of citizens of the earth into and toward the species as a system that is cosmopolitically united.’56 Kant’s second definitive article, for instance, can be interpreted as an attempt to mediate an idea of reason with historical and cultural contingencies, arguing for the gradual evolution of world society from mitigated anarchy to a permanent congress of states, a free federation, and finally towards a world republic. 57 The same interpretation could be applied to the celebrated article on cosmopolitan right, which outlined the basic formal and rational principles (such as prevention of injury), but also envisioned gradual legal progress. This possible progress encompassed, first, an ever more precise delineation of mutual spheres of juridical freedom (of individuals as well as states or communities), and, secondly, a deepening of interaction or communication (which included, among others, global trade).58

 54

Cavallar, Georg (2002), Op.Cit., pp.214-5, with quotations. Kant, Immanuel, 7, pp.412 note. 56 Kant, Immanuel, Anthropology, 7, p.333. 57 See Kleingeld, Pauline (2004), ‘Approaching Perpetual Peace: Kant’s Defence of a League of States and his Ideal of a World Federation, in European Journal of Philosophy, 12, pp.304-25. 58 For an interpretation see Cavallar, Georg (2014). ‘Kant’s law of world citizens: a historical interpretation’, in Lettevall, R. & Petrov, K. (ed.), Cosmopolitanism in a Wider Context, Peter Lang, forthcoming. 55

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4. Dynamic commercial cosmopolitanism: transcending borders and economic boundaries The previous section has shown that legal cosmopolitanism often intersected with commercial cosmopolitanism: an international juridical framework was seen as the condition of a fair global trade system. Commerce usually had a narrow meaning, coinciding with trade, or a wider meaning, encompassing all forms of interaction, such as the exchange of ideas or commodities. This section focuses on commerce as trade, and the first reflections upon historical change and the dynamics of modern economic globalization in early modern European philosophy. Natural lawyers since the late seventeenth century divided history into economic stages, and developed the outlines of a historical theory of property and law.59 Pufendorf made one of the first contributions to these early historical reflections. Assuming that human interdependence was an indisputable fact, and that human needs were neither uniform nor finite, but malleable and dynamic, Pufendorf developed what has been called his theory of commercial sociability. Human sociability became a ‘social construct’ like language, and a historical phenomenon, subject to change and development. Referring to the acquisition of languages, Pufendorf pointed out that ‘natural’ sometimes signified a ‘fitness’ or ‘aptitude.’ Reason and fitness for society could be trained and cultivated by discipline, so that ‘full development which nature intends’ was achieved. Humans came to realize that sociability lay in their self-interest; this was Pufendorf’s central synthesis. The natural law which specified that we should cultivate a sociable attitude was thus ‘natural’ in a very specific sense. The efficient use of the world’s resources and population growth required the introduction of private ownership. As a possible source of conflict, it had to be regulated by civil laws. ‘[W]hatever may be said upon the eternity of natural law, it is certainly not necessary for all the objects of that law to have existed from all time, for many of them make their appearance gradually out of the conventions and institutions of men’. 60 Other thinkers developed early forms of the four-stage theory, the claim that human history gradually progressed from nomadic forms of life to contemporary money economy and commercial societies. The stages scheme introduced the new paradigm of historical change and development into the framework of natural law thinking. By the middle of

 59 60

For the following see Cavallar, Georg (2002), Op.Cit., pp.237-40. Quoted in Cavallar, Georg (2002), Op.Cit., p.238.

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the eighteenth century, the new philosophy of history had replaced previous forms of theologies of history and was in full bloom.61 .

An early moral justification of modern money economy that transcends borders and is destined to become truly global can be found in John Locke. 62 His starting point is the famous labor theory of property, the thesis that property rights are established if someone mixes her labor with an object.63 Humans are proprietors of their own bodies, of their ideas, their actions, their labor and the products of their labor. 64 This is their creative power, which also includes their capacity to change or alter nature. Locke did not reinterpret pleonexia (greed, avarice, the desire to own what belongs to others) and amor sceleratus habendi (immoral greed) as virtues, since he wanted these desires to be limited by natural law. However, he commented on and advocated unlimited economic growth, which presupposed imports and exports on a global scale, both in turn based on the possibility of trade and a developed money economy. 65 Unlimited trade relations motivated people to produce commodities not limited to supporting one’s own family. ‘Find out something that hath the Use and Value of Money amongst his Neighbours, you shall see the same Man will begin presently to enlarge his Possessions’.66 In recent years, interpreters have pointed at the close connection between Locke’s labor theory of property and his justification of colonial expansion at the expense of native nomadic populations.67 Indeed, Locke legitimized a market-oriented agriculture which produced for a world market, which presupposed the acquisition of huge tracts of land and the introduction of larger Possessions.’68 Kant’s criticism of European, especially British, colonialism is well known. He seems to have interpreted even this morally despicable historical phenomenon, triggered by modern money economy and

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For an introduction see Sommer, Andreas Urs (2006), pp.65-268. For the following see Schelkshorn, Hans (2009), Op.Cit., pp.529-93. 63 Locke, John (1994), Two Treatises of Government, Laslett, P. (ed.), Cambridge: Cambridge University Press, II, § 27. 64 Ibid., II, § 44. 65 Ibid., II, §§ 36-37, 47-51. 66 Ibid., II, § 49. 67 See among others Cavallar, Georg (2002), Op.Cit., pp.260-2. 68 Locke, John (1994), Op.Cit., II, § 36. 62

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commercial societies, as an opportunity to reform the law of nations towards more just international relations. Kant understood Nature reflectively and tentatively as a ‘moral facilitator’ of the education of the human species.69 There is a tension between the human species propelled or instigated by Nature towards legal and moral ends on the one hand and an understanding of human history as a collective learning process, whereby humans are seen as more or less free agents not manipulated by Nature. According to this reflective philosophy of history, the ‘spirit of commerce’ or doux commerce might promote more peaceable relations among communities, since eventually all nations develop towards commercial societies according to the four-stage theory, with global integration and mutual self-interest prevailing over the traditional warrior spirit.70

5. Dynamic religious cosmopolitanism: the Kingdom of God on earth Religious cosmopolitanism is the view that believers of different faiths, beliefs or religious communities are members, or should be members, of one single community. The story of religious cosmopolitanism is a complex one, and overlaps with the history of ecumenical thought, millennialism or chiliasm, the tradition of eschatological Christianity, religious reform movements, and the philosophy of history. In many accounts, a passage from the Book of Revelation is used as a starting point, which refers to an angel proclaiming ‘the eternal gospel […] to those who live on the earth - to every nation, tribe, language and people.’71 Joachim of Fiore (1135-1202) developed his millenarian theory of the three ages in Liber Concordiae Novi ac Veteris Testamenti (Harmony of the Old and New Testaments) around 1200, with the Age of the Father characterized by morality as obedience to the will of God; the Age of the Son, corresponding with the new Testament and ending in 1260; and the Age of the Holy Spirit, with freedom, universal love and the waning of

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Kant, Immanuel, KdU, 5, pp.425-36; for an analysis see Cavallar, Georg (2014), Op.Cit. 70 Kant, Immanuel, KdU, 5, pp- 262-3, Peace, 8, p.368. For an introduction to the philosophy of history see Große, Jürgen (2008)‚ ‘Geschichtsphilosophie heute’, Philosophische Rundschau, 55, pp.123-55. 71 Revelation, 14, 6.

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traditional ecclesiastical organization.72 Nicholas of Kues (1401-1464), in De pace fidei (1453), wrote of a conference in Heaven with representatives of all nations and religions participating. The assembly agreed that there can be ‘una religio in varietate rituum’, a single faith manifested in different rites.73 Millennialism or chiliasm often overlapped with messianic and utopian thought, and thrived in early modern European history, among Jews and Catholics, but especially among Protestant sects.74 Representatives of this tradition were, among many others, Sebastian Franck (1499-1542) and Johann Christian Edelmann (1698-1767). They shared the following ideas: the importance of religious freedom, the separation of church and state, and the emphasis on the individual soul as the source of faith rather than the Bible. Most importantly, the true church was ‘invisible’ since it was a voluntary association. Gottfried Arnold (1666-1714), in his Unparteyische Kirchen- und Ketzer-Historie (1700), refused to identify the invisible church with any existing religious community, not even with the ecclesiola of the Pietists. The true vocation of Christianity was constant perfection, not recovering the pure dogmatics of the early or Lutheran church.75 Neologian Johann Friedrich Wilhelm Jerusalem (1709-1789), in Betrachtungen über die vornehmsten Wahrheiten der Religion (17681779), replaced the search for the true, authentic and original Christian faith with the idea of perfection: true Christianity was to be found at the end of history, not at the beginning.76 Kant compared the ‘people of God’ 77 with the ‘constitution of a household’, a ‘union of hearts’ based on pure morality and reverence for God and Jesus as its vicar on earth (Religion, 6: 102). This is an ideal of

 72

For an introduction see Patschovsky, Alexander (2013), Die ‘Concordia Novi ac Veteris Testamenti’ Joachim von Fiores: Klassifikation der Handschriften, Hannover: Hahn. 73 Cf. Hopkins, Jasper (1993), ‘The Role of Pia Interpretatio in Nicholas of Cusa’s Hermeneutical Approach to the Koran,’ in Piaia, G. (ed.), Concordia discors, Padua: Antenore, pp.251-273, pp.272-3; Helander, Birgit H. (1993), ‘Cusanus als Wegweiser zur Eintracht’, in: Piaia, G. (ed.), Op.Cit., pp.199-216. 74 For an introduction see Goldish, Matt, et al. (eds.) (2001), Millenarianism and Messianism in Early Modern European Culture, vols. 1-4. Dordrecht: Kluwer Academic Publishers. 75 Sommer, Andreas Urs (2006), Op.Cit., pp.:108-9 and 109. 76 Ibid., pp.140-1. 77 Kant, Immanuel, Religion, 6, pp.99-100.

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reason and nothing in real life can match it; yet Kant might have had the community of religious reformer Nikolaus Ludwig von Zinzendorf und Pottendorf (1700-1760) in mind. Zinzendorf aimed at a revival of spiritual religion which he called ‘religion of the heart’, developed an ecumenical theology, and offered asylum to persecuted refugees from Moravia and Bohemia at the village of Herrnhut, which grew into a place known for its religious freedom. 78 When conflict arose (due to the number of denominational faiths concentrated there), Zinzendorf asked villagers to pray and study the Scriptures, and together they signed a document known as the Brotherly Agreement in 1727. This way they tried to follow the ‘principle of freedom’, typical of the true church according to Kant.79 In newly-found communities in North America, such as Bethlehem and Salem, Whites shared quarters and church life with converted Native Americans and slaves. Missionaries in the West Indies, believing that they could only convert the African slaves if they shared their fate and submitted to slavery themselves, did not hesitate to do so.80 Kant criticized Zinzendorf’s doctrine of moral rebirth or ‘moral metamorphosis’ in The Conflict of the Faculties because he offered a mystical theory with grace and divine intervention taking precedence over virtue.81 Yet there is the possibility that Kant appreciated the Moravian Brethren as approaching the type of moral commonwealth he himself favoured, leaving orthodoxy ‘the view that belief in dogma is sufficient for religion’-82 behind. The tradition of eschatological Christianity, of chiliasm or millenarianism was continued by Enlightenment theologians and philosophers such as Johann Albrecht Bengel (1687-1752) or Christian August Crusius (17151775). There are similarities between the ‘prophetic theology’ of Bengel and Crusius and Kant: the Kingdom of God is an ‘embryo’ or ‘germ that

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For an introduction see Beyreuther, Erich (1962), Studien zur Theologie Zinzendorfs. Gesammelte Aufsätze, Neukirchen: Neukirchner Verlag.; Brecht, M. & Peucker, P.(eds.) (2006), Neue Aspekte der Zinzendorf-Forschung, Vandenhoeck & Ruprecht; Meyer, Matthias (1992), Feuerbach und Zinzendorf. Lutherus redivivus und die Selbstauflösung der Religionskritik, Hildesheim: Olms; see also Schwarz, Hans (2004), ‘Ende und Erfüllung. Teleologie und Eschatologie bei Kant’, in Thiede, W. (ed.) (2004), Glauben aus eigener Vernunft? Kants Religionsphilosophie und die Theologie, Göttingen: Vandenhoeck und Ruprecht, pp.191-205, p.199. 79 Cf. Kant, Immanuel, Religion, 6, p.102. 80 Cf. Beyreuther, Erich (1962), Op.Cit., p.163. 81 See Kant, Immanuel, Conflict, 7, pp.55-9. 82 Ibid., 7, p.60.

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will eventually develop in the course of history; this end is marked by the triumph of the good principle; the progress is ‘guaranteed’ by providence and a theistic concept of ‘moral’ nature. There are two major differences: Kant’s critical approach denied that we can have theoretical knowledge in the sphere of metaphysics; secondly, he criticized the Jewish faith and excluded it from church history proper.83 Gotthold Ephraim Lessing’s essay ‘Education of the Human Race’ (1780) focused on the analogy between revelation and education, and claimed that Mosaic and Christian revelations were the first two stages in the religious education of the human species. The third and final stage would be the era of the ‘Eternal Gospel’ when people understood and acted upon what Kant later described as pure moral motivation – they would do what is morally good because it was good and not because of worldly or heavenly rewards. In addition, people apparently would believe in metempsychosis or reincarnation and a Spinoza-like conception of God.84 Though Lessing and Kant agreed in certain respects, the most surprising difference between them is ‘Kant’s commitment to […] core Christian teachings’,85 such as the human propensity to radical evil, the concept of grace, and the role of the Christian churches. Kant’s ecclesiastical history had no place for ancient Judaism, because he saw the Jewish faith as political and denied that its core was compatible with rational religion.86 Unlike Lessing, Kant held that Christianity was not a mere stage in the development of moral and religious consciousness, but ‘from its inception in principle a pure moral religion, which entails that there is no room for any development beyond it.’87



83 See Bohatec, Josef (1938), Die Religionsphilosophie Kants in der "Religion innerhalb der Grenzen der blossen Vernunft". Mit besonderer Berücksichtigung ihrer theologisch-dogmatischen Quellen, reprint Hildesheim: Olms 1966. pp.48991; McGaughey, Douglas (2011). ‘Kants theologischer Kontext: Eine Stichprobe’, in Höffe, O. (ed.) Op.Cit., pp.271-82. 84 Allison, Henry E. (2009), ‘Reason, Revelation, and History in Lessing and Kant’, International Yearbook of German Idealism, 7, pp.35-57, pp.40-3. 85 I summarize Allison (2009) here. 86 Cf. Kant, Immanuel, Religion, 6, pp.125-8 ; Brachtendorf, Johannes (2011), ‘Die Kritik des Judentums und die Geheimnisse der Vernunft‘, in Höffe, O. (ed.), Op.Cit. pp.151-72, pp.156-63. 87 Allison, Henry E. (2009), Op.Cit., pp.49, 54-5.

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Kant’s philosophy of religion is the conscious attempt to isolate the rational kernel of religion, a critically disciplined moral faith, from the historical and contingent. 88 Philosophical chiliasm – the idea of a legal community encompassing the whole world at the end of history - is complemented by theological chiliasm – the idea of a global moral commonwealth beyond history. Philosophical chiliasm is political and includes the highest political good, namely perpetual peace and perhaps a world-republic; theological chiliasm ‘awaits for the completed moral improvement of the human race.’ 89 Agents who cultivate their moral disposition and aim at virtue consider themselves ‘the chosen citizens of a divine (ethical) state.’90 For Kant, this concept is cosmopolitan in the sense that it is based on morality understood as a universal, a priori capacity of rational agents, and that any human being is capable of understanding and following the moral law. Consequently, any human who strives for moral perfection is a prospective member of this divine state, provided that they develop a moral faith that is the rational consequence of an impartial analysis of the human condition of finite beings with a moral disposition. Kant summarizes his theological chiliasm in 1793: ‘Such is […] the work of the good principle – unnoticed to human eye yet constantly advancing – in erecting a power and a kingdom for itself within the human race, in the form of a community according to the laws of virtue that proclaims the victory over evil and, under its dominion, assures the world of an eternal peace.’91 This is not theoretical knowledge, but practical faith and hope, namely that eventually the germ of the good principle will spread across the globe. The millennium at the end of history, the kingdom of God on earth, is not simply a symbolic period of time, but perpetual peace, based not on coercive laws (as in the philosophy of history) but on non-coercive moral laws. The human race would have reached its vocation. ‘Once human nature has attained to its full destiny and highest possible perfection, that will be the kingdom of God on earth, and inner conscience, justice and equity will then hold sway, rather than the power of authority.’92

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For an introduction to Kant’s philosophy of religion, see Höffe, O. (ed.), (2011), Op.Cit.; Rossi, Philip J. (2005), The Social Authority of Reason: Kant’s Critique, Radical Evil, and the Destiny of Humankind, Albany: State University of New York Press. 89 Kant, Immanuel, Religion, 6, p.34. 90 Ibid., p.136. 91 Ibid., p.124. 92 Kant, Immanuel, Collins, 27, p.471.

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Kantian religious cosmopolitanism is the view that all human beings who have developed a moral disposition, implicitly or explicitly understand their envisioned good life-conduct as authentic religious service, and have ordained their moral disposition to the ethical commonwealth, are members of a single community of believers. As Kant puts it in The Conflict of Faculties, ‘the human being must be destined for two entirely different worlds: for the realm of sense and understanding and so for this terrestrial world, but also for another world, which we do not know – a moral realm.’93 This moral realm should not simply be identified with the traditional concept of heaven or the afterlife; Kant held that the kingdom of God is already prepared in this world by the members of the invisible church and called it ‘the Kingdom of God on earth.’94 This is the dynamic element: humans have the duty to promote through their moral endeavours the ethical commonwealth. As in moral cosmopolitanism, the ideas of vocation and of moral perfection, of the individual as well as of the human species as a whole, are central. Religious cosmopolitanism goes beyond moral cosmopolitanism in the following respects: human reason is finite – both theoretically and practically (because of the limits of our theoretical reason and because of radical evil). Human imperfection and limitation in realizing the ethical commonwealth and the highest good are completed by the help or assistance of a morally good, all-powerful and all-knowing supreme being. 95 According to Kant, humans on their part should develop a ‘critically disciplined religion’96 and a morally cultivated religious disposition which leaves behind the deformations of earlier forms of religious faith, such as intolerance, fanaticism or misunderstood ‘enthusiasm’, hatred of different denominations or historical faiths, mysticism, superstition, counterfeit service (Afterdienst), the rule of priestcraft (Pfaffenthum) or a moral education based on fear and rewards.97 The early German romantics went beyond Schiller’s claim that art could unify the two aspects of human nature, reason and sensibility. They transformed their aestheticism by asserting that religion as a form of art

 93

Kant, Immanuel, Conflict, 7, p.70 & 28, p.301. Kant, Immanuel, Religion, 6, p.134 & 28, pp.1011-2. 95 Kant, Immanuel, KpV, 5, pp.124-5, Religion, 6, pp.44, 98. 96 Rossi, Philip J. (2013), ‘Cosmopolitan Religion and the Moral Imperative for Perpetual Peace’ (manuscript), p.1. 97 Cf. Kant, Immanuel, Religion, 6, pp.101-2, 151-185; Herder, 27, pp.76-7, 78; Collins, 27,pp.287, 303; 28, p.1109. 94

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would be the cornerstone of the new formation or Bildung. 98 Novalis (Georg Philipp Friedrich von Hardenberg, 1772-1801) was a case in point. He asserted in ‘Christianity or Europe’, a fragment written at the end of 1799: ‘Only religion can reawaken Europe, make the people secure, and install Christianity with new magnificence in its old peace making office, visible to the whole world.’ 99 He presented his vision of romantic Christian cosmopolitanism only six years after Kant had published his Religion, and only one year after the Conflict of the Faculties, but Kant and Novalis are worlds apart: Novalis’ romantic understanding of religion contrasts with Kant’s rational and moral religion; Novalis criticized Kant’s cosmopolitanism as ‘based on an abstract and legalistic notion of human rights’;100 Novalis’ glorification of the European Middle Ages is directly opposed to Kant’s sceptical look at Church history; Novalis’ new metaphysics, his rejection of ‘common distinctions’, his enigmatic language, his new spirituality could be seen as uncritical philosophy by Kant’s standards.101 German Romantics are often assigned to the camp of nationalists since they openly criticized the Enlightenment; however, as Pauline Kleingeld has convincingly shown, Novalis was a cosmopolitan, even if of a particular sort.102 Although Kant and Novalis are worlds apart in terms of epistemology, metaphysics, and the proper relationship between morality and religion, both share a form of religious cosmopolitanism, insofar as they both believed in a new, ecumenical, genuine cosmopolitan Christianity. Novalis phrased the idea of an invisible church of the future in ‘Christianity or Europe’ the following way: ‘The other parts of the world wait for Europe’s reconciliation and resurrection to join with it and become fellow citizens of the kingdom of heaven. […] Should not all



98 Cf. Beiser, Frederick C. (1999), ‘Introduction’, in Beiser, F. C. (ed.), The Early Political Writings of the German Romantics, Cambridge: Cambridge University Press, XI-XXIX, XVIII. 99 Novalis, Friedrich von Hardenberg (1799), ‘Christianity or Europe. A Fragment‘, in Beiser, F.C. (ed.), Op.Cit., pp.59-79, pp.77-8. 100 Kleingeld, Pauline (2008), ‘Romantic Cosmopolitanism: Novalis's 'Christianity or Europe'’, Journal of the History of Philosophy, 46, 2, pp.269-84, p.270. 101 For a comparison see Waibel, Violetta (2007), System der Systemlosigkeit. Erster Teil: Die ›Fichte-Studien‹ Friedrich von Hardenbergs. Denkwerkstatt im philosophischen Kontext von Kant und Fichte. Zweiter Teil: Ein philosophischsystematischer Kommentar der ›Fichte-Studien‹ Friedrich von Hardenbergs, Habilitationsschrift im Fach Philosophie an der Universität Wien; Kleingeld, Pauline (2008), Op.Cit. 102 Kleingeld, Pauline (2008), Op.Cit.

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kindred religious minds be full of yearning to see heaven on earth?’103 Christianity should form one visible church ‘without regard to national boundaries’ (Ibid.: 79), apparently an ecumenical union of Protestantism and the Catholic faith and based on ‘genuine freedom.’104 Novalis stressed the idea of the human race united by spirituality, by ‘faith and love’, not by ‘having and knowing’, or by pragmatic considerations based on utility, something the romantic associated with allegedly cold Enlightenment rationality.105 Critics were soon upset by Novalis’ explicit enthusiasm for Roman Catholicism as well as the Middle Ages. Novalis shared with Kant a teleological and dynamic conception of history. His starting point was the dispositions and predispositions of the human species: ‘the capacity of the race as a whole is immeasurable’,106 whereas the powers of the individual are limited. Here, Novalis sided with Kant, Pölitz and Hegewisch and endorsed their distinction between the vocation of the individual and that of the species, and their claim that the vocation of the species could be reached at the end of history. According to Novalis, the last step of human development was the cultivation of the ‘spiritual sense’, 107 which went beyond mere culture, civilization and (presumably) morality. The first attempt at a lasting Christian Europe in the Middle Ages had to fail, in particular because faith was ‘childlike’108 then and ‘mankind was not mature or educated enough’. 109 Cultural progress, the cultivation of prudence and skilfulness and the rise of commercial society were ‘harmful […] for the spiritual sense’ (ibid.), but had helped humans to move towards maturity. For Novalis, the human race had reached a crucial stage during his own time: now that European civilization had passed necessary stages of development, the time was ripe for spiritual progress. This progress could be slowed down, it could even be reverted, but not blocked in perpetuity. ‘What does not now reach perfection will do in a future attempt, or in another later one’110 – this is the underlying teleological doctrine, in full agreement with Kant, but without his critical caveat.

 103

Novalis, Friedrich von Hardenberg (1799), Op.Cit., pp.78-9. Ibid. 105 Cf. Kleingeld, Pauline (2008), Op.Cit., p.270. 106 Novalis, Friedrich von Hardenberg (1799), Op.Cit., p.68. 107 Ibid., p.63. 108 Ibid., p.61. 109 Ibid., p.63. 110 Ibid., p.64. 104

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In this chapter, I have claimed that early modern European cosmopolitanism up to around 1800 can be construed as a unique phenomenon distinct from the past. Its key element was dynamic in nature, and I suggested that this was typical of early modernity. In my brief outline, I have also tried to show that Kant’s philosophy is the most succinct formulation of dynamic cosmopolitanism. This interpretation is perhaps problematic: critics might argue that it implies an evolutionary, linear, dynamic and teleological interpretation of early European history on my part – so I hasten to add in good Kantian fashion that my ‘story’ was merely a reflective and tentative exercise of my faculty of judgement. Finally, I freely admit that my approach has been hopelessly Eurocentric; an intercultural perspective was missing in my approach, 111 but was beyond the scope of this inquiry.



111 See for instance Schelkshorn, Hans (2009), Op.Cit., and Schelkshorn, Hans (2014), Op.Cit.



THE RIGHT OF THE SUBJECT TO BECOME A CITIZEN OF THE WORLD: KANTIAN ANTI-COLONIAL COSMOPOLITANISM LORENA CEBOLLA UNIVERSITY OF TRENTO

Despite the stoic defence of a community of mankind based on the equal possession of a rational nature by all men, active citizenship and ownership constitute a classical couple in western thought. Traditionally, property owners have the right to participate in the public decisions of the community, and the right to justice. Therefore, foreigners and their status and rights depend to a large degree on their economic relations with the community of interaction. Seeing and defining others as equals, virtual citizens of a cosmopolis, with the same rights as local members, depends on many factors cultural, linguistic, economic, age and gender - but largely reflects the ability of the other to be a property-owner and subject of selfdetermination; and so, in ancient times, colonization and subjection defined the limits of the universal community of men. The kosmos polites, the citizen or the right of the subject that extends beyond the boundaries of the city or state, is in most cases determined or defined in relation to a previous state of war. So classical thought defined the subject in relation to the world as full citizen, citizen, serf, slave, visitor, foreigner, and barbarian. On the other hand, this relation between the right to have a say in the affairs of the community and property is accompanied, “philosophically or in political thought”, by the idea of an original community of mankind where everything was shared, a negative community of possession or a community of use, when things where res nullius (i.e. no one’s), and everybody had the right to use everything. After the “establishment” of



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private property, however, this community and the idea of a universal virtual cosmopolitan citizenship based on shared use, became fractured and humanity was divided into two groups, active and passive citizens, masters and slaves, the civilized and “the absolute Other”, the barbarians or hostes. In fact, the classical idea of a community of mankind where things were res nullius has a partly negative meaning for political and juridical thought and practice, becoming the definition of the state of nature between nations, or the state of war. The hostes or barbarians are those who have no property. Between enemies everything is res nullius, the property of the enemy is an object of appropriation, and the enemy an absolute other, a subject of subjection. The rites that define the process of war contemplate the plundering of the enemy’s property as God’s will, justifying a legal conception of things and their original acquisition through a religious supremacy demonstrated by victory in war. The history of the granting of citizenship is one of treaties and leagues, but when considered beyond the boundaries of culture and similarities it becomes one of conquest and colonization, the ius gentium being based on imperialist expansion and the new citizens being the new serfs, even slaves.1 Although, to some extent, the concept of world citizen will remain associated with the label “common” or “public things” and the universal right to use them, in addition to rights under necessity, the rights of the subject remain attached to use and not to ownership, and perhaps for this reason the acknowledgment of the subject based on these rights is more associated with moral virtue or economic interest than with a genuine “right”. While the idea of a universal community of mankind remains as an ethical ideal and regulatory concept for moral practice, the differentiation between us and others, first and second-class citizens based on the ability to own property, persists as an operative concept in the creation and

 1 Cf. Scuccimarra, Luca (2006), I Confini del Mondo: Storia del cosmopolitismo dall’Antiquità al Settecento, Bologna: Il Mulino; Coulmas, Peter (1995), Les Citoyens du Monde: Histoire du cosmopolitisme, Paris: Albin Michel. Heater, Derek (1996), World Citizenship and Government: Cosmopolitan Ideas in the History of Western Political Thought, New York: St. Martin's Press; Baldry, H.C. (1965), The Unity of Mankind in Greek Thought, Cambridge-NY: Cambridge University Press.



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development of law, becoming one of the key concepts in the history of International Law and colonization.2 Discourse on the legitimacy of private property, the idea of a just war and the definition of a law with universal reach should be taken together to understand the historical evolution of the notion of global citizenship or world citizen. The debates on the legitimacy of private property in the early and late Middle Ages foreshadowed the construction of a real conception of cosmopolitanism, understood as anti-colonialism. The acknowledgment of the right of the subject to personality and goods is closely related to the debate on the right of a people to sovereignty. This debate has its origins in the treatment of private property by the Church fathers, followed by canonists and scholastics, and is reflected in the construction of a notion of just war that determines the extension of the cosmopolitan perspective. Simultaneously, a gradual transformation took place in the reflection on a universal community, from a community of mankind to a community of commerce, which might be thought of as the path from humanity to capitalism in the construction of International Law. Kant comes onto the scene with a new idea, cutting off the historical path that had given up on cosmopolitanism, and shifting the terms towards ethics. Kant offers a conception of universal law that is anticolonial and at the same time able to firmly ground the demand for a legal and political community of mankind.



2 For these questions see, amongst others: Moggi, Mauro (1992), ‘Straniero due volte: il barbaro e il mondo Greco’, in Bettini, M. (ed.), Lo Straniero. Ovvero l’Identità Culturale a Confronto, Roma: Laterza; Gauthier, Philippe (1972), Symbola: Les étrangers et la justice dans les cites grecques, Nancy: Annales de l'Est, Mémoire 42 Nancy; Kaser, Max (1993), Ius Gentium, Köln -Weimar-Wien: Böhlau Verlag; Frezza, Paolo (1949), Ius Gentium, Pisa: Nistri-Lischi; Burdese, Alberto (1987), Manuale di diritto pubblico romano, Torino: Unione TipograficoEditrice Torinese; Catalano, Pierangelo (1965), Linee del sistema sovranazionale romano, Torino: G. Giappicheli editore; Solidoro Maurotti, Laura (2006), ‘Sulla condizione giuridica dello straniero nel mondo romano’, in Rivista della Scuola Superiore dell'Economia e delle Finanze, vol. 1, pp.21-36; Maffi, Alberto (1990), ‘Straniero (diritto romano)’, in Enciclopedia del diritto, Milano: Giuffrè, vol. XLIII, pp.1139 ff, Maschi, Carlo A. (1962), ‘Istituti accesibili agli stranieri e «ius gentium»’, in Jus, March, pp.368-88.



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1. The medieval perspective Parallel to the compilation of the Digest and the Roman Corpus Iuris, so important in the constitution of a ius communis in the late Middle Ages, the debate initiated by the Church Fathers expressed ethical concerns about questions regarding the equality of all men and the attempt to avoid destitution and poverty. Property became a natural attribute or right of human beings according to an original state of common property or common possession, justified by natural law. Although, within the discourse of the Fathers, the state of communality could not be presented clearly as a state of common property but rather as a state of common use or possession, the fact remained that wealth - a wealth that was (for almost all the Fathers) the result of sin and injustice – was thought to be accompanied by a debt or duty of action to compensate for its existence. Private property was therefore presented as a corruption of this original state and hence a violation of natural law. Human law and corrupt human nature justified the convention of private property, but, for the first time, property was not considered simply as an institution of civil law, but as the basis for condemning differences in wealth and status among men.3 St. Augustine, St. Ambrose, Clement, St. Basil, St. John Chrysostom, and St. Isidore, among others, defined property as the result of sin and the Fall of man. For some of them, the state of sin was an unjust state, for others a positive state whose justice depended on civil regulations and the decision of the sovereign; for all of them wealth carried with it the obligation on the wealthy to use their possessions righteously, the rich working for the good of the community as a whole.4

 3

Cf. Garnsey, Peter (2007), Thinking about Property. From Antiquity to the Age of Revolution, New York: Cambridge University Press; Vines, Jacob (1978), Religious thought and economic society. Four chapters of an unfinished work, Melitz, J. & Winch, D. (ed.) Durham: Duke University. 4 Theodoret and St Jerome are exceptions. They defended differences in wealth as the will of God or Divine Providence, justifying in this way the state of facts, of sin, not just as an effect of human sinfulness but as the plan of God for men to exercise virtue through the rightful use of property. Theodoret and Lactantius even condemned the prospect or desirability of common property, considering



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The Fathers’ reference to common property and the a priori injustice of poverty was later used to define a natural right to private property. Their defence of the proper use of wealth to compensate for differences in a “humanity” that was otherwise considered equal did not prevent them, however, from accepting poverty as well as slavery as useful institutions of neutral moral character. Nonetheless they established the basis for the debate on the legitimacy of private property and its defence as a natural right, as well as for the idea of commerce as a means for human socialization that was later to inform the discipline of the law of nations and the construction of the idea of cosmopolitanism. After the Fathers, the source for the scholastic discussion of property is the text of the Drecretum Gratiano, the 12th- Century canon law compilation by Gratian. According to the Decretum, everything belonged to everybody, in accordance with natural law; private property is introduced by convention or juridical disposition, and human laws that are contrary to natural law are considered “incorrect”. The two most discussed texts contained in the Decretum regarding the matter of original and private property are the Quo Iure (by Augustin) and the Dilectissimis (by the pseudo-Isidore, Pope Clement I). Reflecting on this source, canonists and scholastics justified the right to private property as deriving from a permissive law or as a convenient and adequate response to human nature after the Fall; they once again defended the existence of a negative primitive community of use between men. This original cosmopolitan or universal community came to terms with the reality of a stratified world, and property was seen as the legitimized product of initial occupation over a res nullius to be regulated by temporal powers or states.5 This discourse moved away from considering outer things as part of an ontology of nature and towards seeing them as a moral capacity,

 communist societies vicious and lazy (De Providentia, V, VIII; VI, XIV) and Lactantius (Divinarum Institutionum Libri VII, Book III, XXI-II). 5 For a discussion of the scholastic notion of property see: Tierney, Brian (1997), The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law, 1150-1625, Cambridge: Emory University Press, chap.VI; Roover, Raymond (1971), La pensée économique des scolastiques. Doctrines et Méthodes, Paris: Ints. D’études Médiévales, J.Vrin; Pizzoni, Reginaldo M. (2000), Il diritto naturale dalle origini a S. Tommaso d'Aquino, Bologna: Studio Domenicano, 3rd Edition., spec. pp.303-6.



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property finally being considered as part of the subject, the product of the capacity of dominium understood as a subjective right. The free and complete subject was the sum of the possessor of a free arbitrium and the things could possess according to this inner capacity. The path from the canonist justification of private property by Ruffin of Bologna and Hugguccio passed through the position of Pope Innocent IV who defended private property as grounded on the natural law of reason (meaning that all men according to their rational natures can acquire private property through their works),6 reaching Thomas Aquinas and his defence of free arbitrium as a property or characteristic of all men justifying ownership. According to Aquinas, the original state of things is one of common use; utility and necessity introduce private property and his concept of theft appears to suggest that things are acquired through an intentional act of original acquisition, taking possession of what belongs to nobody.7 Thus, even if in absolute terms all men are considered equal and have the right to own according to their free arbitrium, the state of inequality is not considered unjust but the consequence of necessity or utility justifying the right to own. However, as with the Church Fathers, the justice of a particular state was to be evaluated according to its contribution to the common good, 8 so utility or positive law were not enough to justify the ownership of property. These considerations led to the Franciscan discussion of private property which positively associated freedom with property. In this discussion, in the Opus Nonaginta Dierum Ockham established an idea of private property and acquisition that was to become the basis for the doctrine of the law of nations until Kant, whose opposition to the idea is the key to his theory of cosmopolitanism. According to Ockham, after original sin there existed no property, but a right of acquisition. Things were res nullius. But if the world was considered as res nullius it was not in the form of common property. The power of acquisition is a consequence of the Fall and the human condition, and is established by human reason, a state that is not



6 Thus, he stated, civil governments regulate only different forms of possession, but cannot arbitrarily private their citizens of property that is, as said, grounded on a natural character of men. According to this perspective, in his comment on Innocent III’s decretal “Quod super his”, Innocent IV defended the right of every people to have property and establish self-government, including infidels. 7 Summa Theologiae, II-II, 66, 5. 8 Ibid., I-II, 96, a.3



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reversible. Thus, among sinners it was rationally appropriate and useful to acquire things; acquisition or the introduction of property accorded with human equality. After the Fall, the power of the individual to appropriate property became a right as absolute as a moral precept, a right of which no-one could lawfully be deprived without his consent; when a positive law or right to private property was introduced later, the right still rested on natural law. In this way, Ockham identified three epochs in the history of humanity, one when there was no property but only use, the second, after the Fall, when acquisition was permitted, and the third when the distribution of property was carried out by law or treaty and private property was created and institutionalized. Although his main aim was to distinguish between a power of appropriation which could be voluntarily waived (similar to a permissive law) and a natural law for the use of things which could not be waived, and despite being considered the true father of individual rights (since it can be deduced from his position that he established a natural or individual absolute right to private property), Ockham’s conception of the world as a res nullius instead of a common property actually continues the scholastic tradition that justified differences in wealth according to originally unequal acquisition fixed by positive law. What can be concluded from the scholastic debate on property is the relationship established between reason and the right of ownership, the first attempt to make of ownership a natural individual right. The result was a doctrine that did not condemn differences in wealth or a lack of property, and did not even recommend specific social measures aimed at rectifying the unjust state of things.9

 9

In the words of Jacob Vines, the position of the scholastics regarding economic matters was as follows: “In the formal exposition of medieval moral theology, the primacy of “spiritual” over “temporal” goods was always emphasized, and attachment to individual riches was treated as a danger to morals and even as sin. Voluntary poverty, however, was not recommended or even approved, except for the few who sought and had an aptitude for perfection… The economic welfare of the community was ordinarily included as an important part of the “common good” which it was a duty—especially for rulers—to serve.” But scholastics did not in general concern themselves with matters regarding recommendations for the prosperity of the community, with the exception of some authors such as Roger Bacon or G. Botero. In fact, it was from Protestant-Catholic polemics that a



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2. The theory of just war Along with the discussion of private property, discourse in the Middle Ages also concerned just war, reflecting to some degree the change from an objective right to property to a subjective right of possession associated with the notion of freedom or free arbitrium. In this debate the idea of just war defines the status of strangers and their rights where, again, the conception of a res nullius and the right of the subject to property and self-determination are the key notions to understand the definition of a universal community of mankind in medieval thought.10 To the Roman conception of war the Middle Ages added Christian thinking about war, broadening the idea of the barbarian, defined primarily on a religious basis. The differentiation between types of enemies and wars entails a different treatment of the consequences of a just war, thus continuing with the ancient dual notion or conception of humankind. As in former epochs, humanity was broadly divided into two by war, equals or the similar versus the “others”; but where formerly the non-individual was basically someone of another culture, now the “other” is the heretic, the pagan, the infidel. The pivotal definition of the aim and just causes of war basically remained unchanged through the history of thought on the subject until Vitoria’s reflections on the just titles of war. For Augustine, the aim of war was peace, and its cause or reason was the punishment of sin and crime. Public authorities, rulers and officials alone had the right to declare war, and only to avenge injury. The just causes of war were defence and/or redress and compensation for wrongs

 literature first emerged emphasizing the benefits of religion to the material interest of mankind. Vines, Jacob (1971), Op.Cit., p.61. 10 For a comprehensive view of the notion of just war in the Middle Ages see, amongst others, Russell, Frederick H. (1975), The Just war in the Middle Ages, Cambridge-NY: Cambridge University Press; Murphy, T.P.(ed.) (1974), The Holy War, Ohio: Ohio State University Press; Grewe, Wilhelm G. (2000); The Epochs of International Law, Byers, M. (trans.), Berlin-NY: Walter de Gruyter, Ch.2; Syse, H. &, Reichberg, G.M.(eds.) (2007), Ethics, Nationalism, and Just War: Medieval and Contemporary Perspective, Washington DC: Catholic University of America Press; Muldoon, James (1979), Popes, Lawyers, and Infidels: The Church and the Non-Christian World, 1250-1550, Philadelphia: University of Pennsylvania Press.



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inflicted on a city and its citizens, or the unjust seizure of goods. The aim was to return to the conditions existing before the injustice undergone at the hands of the enemy, so any war designed for conquest or the increase of power, land or property was condemned as unjust.11 This restriction on the justice of war did not stifle a parallel or complementary notion of just war - one that can be thought of as absolute:12 God’s war and the persecution of the heretics. Any belief that was not orthodox was considered a threat to faith and was persecuted. Persecution of the heretics was just per se, because of the threat it represented to Christian faith and because the aim of war was to return heretics to orthodoxy. Their punishment was considered an act of charity. So, when dealing with the unfaithful, in concrete terms with heretics, these individuals were outlaws, unworthy of lawful treatment and subject to forms of mistreatment that did not include violence. A similar position was taken by St. Ambrose and Gregory the Great. The unfaithful are like the barbarians of classical thought, and their oppression was a just cause of war, since they were the incarnation of injustice. Like Augustine, Gratian defined war as an instrument of peace that was legitimate only when necessary to restore peace. The key passage of the Decretum regarding the notion of just war is the Causa 23, where Gratian describes war as a means of defending the self, the church, the homeland or the commonwealth. The spoils of victory belonged to the prince, who was to distribute them amongst his soldiers. But since war was considered a pseudo-legal process, its outcome should not involve the oppression or subjection of the enemy, but lead to a truce or treaty that would restore the original pre-war situation. Unlike the treatment of the enemy in a secular war, heretics were to be persecuted and coerced into Christian faith, and the use of violence or physical force was legitimate. As opposed to other enemies, heretics had absolutely no rights. They could not claim justice and could not own property. So the figure of the



11 Quaestones in Heptateucum, VI, 10. «Iusta autem bella ea definiri solent, quae ulciscuntur iniurias, si qua gens vel civitas, quae bello petenda est, vel vindicare neglexerit quod a suis improbe factum est, vel reddere quod per iniurias ablatum est. Sed etiam hoc genus belli sine dubitatione iustum est, quod Deus imperat, apud quem non est iniquitas et novit quid cuique fieri debeat. In quo bello ductor exercitus vel ipse populus, non tam auctor belli, quam minister iudicandus est.» 12 Epist., 96.



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heretic became the absolute other, without rights and with no claim to postliminium. Since heretics were outsiders in relation to the law, it is understandable that the legal measures applicable to a secular war did not apply to them. Among the canonists, Huguccio defended the justice of war when declared by a legitimate authority against a person who could be legitimately attacked, i.e. the enemies of the Empire and the Church persecuted by human or divine law. Of fundamental importance was the fact that both parties possessed legitimate authority to declare and wage a war.13 The case of the Holy wars is, of course, very particular. The persecution of heretics for the sake of peace was a just cause of war. Enemies of the Church not only offended God but also usurped territories that rightfully, according to divine law and ius gentium, belonged to Christians, who had the right to acquire the possessions “usurped” by the unfaithful. Peaceful coexistence with the infidels was possible if they refrained from claiming rights over Christian property. This was the case of the Saracen dominion of the Holy Land providing the reason for a just war. To classical thought on war, Huguccio added the innovative acknowledgment of pagans’ rights. When considering wars against Saracens not for the purpose of recovering the Holy Land, in practice he conceded to them the rights deriving from the ius gentium, such as the respect of truces, the right of postliminium, or the right to declare war, making them a normal enemy or the subject of a secular war. Crusades were limited to the recovery of the Holy Land, and outside that territory pagans had the legal right to property, and a certain jurisdiction over persons and goods that could not be taken by Christians, prohibiting wars of conquest, purely religious wars or wars based only on faith and endowing the Saracen and infidel peoples with characteristics pertaining to the rightful enemy.14 On the other hand, for Rufinus, heretics were denied the protection of human law, and so had no claim whatsoever to property, and in general, as Frederick Russel states: “The Decretists developed in effect a

 13 14



Summa to Decretum. I. c.9; Summa: ‘Elegantius in Iure Divino’ to C.23 q.2. Summa to D.I c.12; Ibid.; to C.23 q.Ic.3; Ibid.; to D.I c.9.

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religiously motivated just cause for war out of the Old Testament, Roman legal principles, and patristic writings. Since heretics by their false belief transgressed the divine law, equated by some Decretists with canon law, and were thus persecuted by the Church, they were denied thereby the protection of human law. Hence they had no legal claim even to hold property, which was liable to suffer imperial confiscation in a just war.”15 Hence, while the doctrine of just war increasingly insisted on the identification of an adequate authority and on the legal nature of war, heretics and in general the unfaithful remained outlaw subjects of the “just world”. Regarding the question of the spoils of war it can be said in general, according to Brundage, that “by the thirteenth century, canonists had adjusted their conception of the law to take account of this fact of life. The ordinary gloss to the Liber Extra invoked once more the just war distinction in this matter: if the war were unjust, no spoils could be legitimately taken; if the war were just, however, then spoils were legitimate. This rule applied not only to the property of the vanquished but also to the defeated soldiers themselves. They, too, became the property of the conquerors, to be divided among the members of the victorious army and, in the usual course of things, to be held for ransom.”16 The Decretalists, commentators of decretal collections, did not add significantly to the canonist view of a just war. What is interesting in their conception of just war is the different positions regarding the infidels in their treatment of the “war of the Church” or crusade. According to Alanus Anglicus, Saracens deserved spoliation and punishment. Conversion was legitimate by any means. Saracens and heretics were denied the right to own property or exercise jurisdiction. However, in his view, Christians were to fight Saracens only when attacked, and he granted Saracens the right to govern their territories, restating a difference between infidels and heretics that reflects a conception of the religious enemy as divided between those who fall under some kind of “other” law and utter outlaws.17

 15

Russel, Frederick H. (1975), Op.Cit., p.114. Brundage, James.A. (1974); ‘Holy war and the medieval lawyers’, in The Holy War, Op.Cit., pp.99-140, p.116. 17 Apparatus Ius naturale, to C.23 q.4 d.p.c.36, V. & to C.23 q.8 c. II, V. 16



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William of Rennes and Raymond de Peñafort conceded Saracens the right of government over their territories but denied it when exercised over territories formerly under Christian control. Regarding heretics, Peñafort saw bishops and ecclesiastical judges as duty-bound to purge them of their land; Peter of Salins combined tolerance regarding peaceful Saracens with the denial of property and territorial rights for heretics and considered the confiscation of their property justified.18 Pope Innocent IV denied any right to war based on faith or the purpose of conversion. War was only justified when Saracens invaded Christian land or attacked Christians. Outside the Holy Land infidels could hold property and govern, and no-one, including the Pope or a prince, could legitimately expel them from those rights. However, the Pope could punish infidels for committing sins against the natural law, and violations of the right to the Gospel.19 In De tregua et pace of his Summa Aurea, Cardinal Hostiensis considered war against infidels as just on the basis of faith alone. Infidels had no right to self-government nor rights to property. However, he recommended not fighting peaceful Saracens. In the case of the heretics, it was a prerogative of ecclesiastical judges to expropriate them. Hostiensis introduced the distinction between crusades to the Holy Land and “internal” crusades, or crusades within Europe against heretics and rebels, making the persecution of heretics a matter of papal prerogative, no longer in the hands of individuals.20 To the medieval conception of just war, Thomas Aquinas brought the Aristotelian idea of the common good. The conditions of a just war were authority, just cause (a sin or offense committed by the enemy that needed to be punished in order to restore the previous state of peace) and just intention. The aim of war was to punish sin and defend the common good of the community. New in Aquinas was the view that the Church had no spiritual jurisdiction over those who had not received the Christian faith, hence, with regard to spiritual wars, Aquinas prohibited the forceful conviction of infidels and justified wars against them only as a consequence of harm; however, heretics could be physically forced to

 18

Peñafort, Raymond of, Summa de Casibus, 2.1.10; Salins, Peter of, Lectura super decretum, to C.23 q.8 c.II. 19 Apparatus in quinque libros Decretalium, to X 3.34.8, no. 3 20 In tertium Decretalium librum Commentaria [Lectura] on X 3.3.4.8.



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fulfil their original promises of faith. Infidelity inside a territory should be tolerated in order to avoid discord – tolerance that once again was denied to heretics.21 So, in the Middle Ages, the theory of just war Ages and the assimilation of Holy war to the theory of just war involved a gradual granting of rights to subjects primarily labelled under the classical conception of barbarians - outlaws. Although the notion of Holy war was broadened during the Middle Ages to include as enemies of the faith all non-European non-Christians, and although it served as a model for imperialist campaigns, its regulation through the concept and limitations of just war contributed to the questioning and granting of rights to subjects otherwise classed a priori as barbarians. This gradual acknowledgment of the stranger and the enemy as a subject with rights, and of limitations on war, reflects an evolution in the concept of the “stranger”, from absolute enemy to occasional enemy, to be respected as an independent subject within the borders of his territory. As William G. Grewe said, “medieval legal thought was rooted in the basic conviction that behind the closer community of Christians there was a wider society of all mankind founded on the law of nature. This communitas omnium gentium included the infidels and established certain ultimate and unshakable legal limitations on hostilities between Christians and infidels.”22 The heretic remains as a leftover of a final anti-cosmopolitanism, and evidence that it was the social and real situation of reigns and empires, as well as the political and economic interests of the Church, that definitively influenced a theory in which the concept of natural rights was still recent. To summarize, the main features of the debate are the establishment of a link between freedom and ownership, recovering to some extent the idea of equality among men, questioning the consideration of the enemy’s property as a res nullius. The discussion introduced a more rational view of the spoils of war as compensation for damages following an injustice perpetrated by the vanquished, rather than treating the property of the enemy as an unlimited field of acquisition. This idea of justice in war reflected a broadening of the rights of the enemy, as well as imposing

 21 22



Summa II-II, 40, 1- 10, 8- 11,3 & 10,11. Grewe, William.G. (2000), Op.Cit., p.53.

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conditions and limitations on conquest and colonization. At the end of medieval debates on the legitimacy of private property and the just causes of war, a more humanized notion of the “other” - be it the secular enemy, pagan or similarly treated infidel – had emerged, acknowledging his rights to property and self-determination, with the sole exception of the heretic. However, an idea of the cultural and spiritual supremacy of the Christian world, and a theological justification for the colonization and conquest of uncivilized Indians and pagans, remained in the background of the economical enterprise of “European” colonization.

3. Towards a law of nations The history of the establishment of contemporary International Law can be traced back to the second scholastics. Its origin is not associated solely with the problem of relations among states or peoples, the regulation of their behaviour in war or the acknowledgment of sovereignty, but also, fundamentally, with colonization. The discovery of America fundamentally changed the development of a discipline that until then had mainly been concerned with war and international commerce. It focused many of the debates about ideas of the state, sovereignty, rights and the law and became the point of departure on a path leading from natural rights strongly grounded in theology to a legal positivism that replaced the role of God with the global market. In this context, Kant can be considered a unique figure inasmuch as he overcomes this transition through the establishment of a global right beyond a mere conformism regarding the role of the state and the individual. The phenomenon of the secularization of the law of nations begins within the realm of theology. From the second scholastics until the end of the eighteenth century there was an attempt to reformulate the grounding of the principles or laws regulating relations between states and the role of the individual. At the root of this process was the idea of res nullius as the original state or condition of the world and its resources, as well as the discourse on rights over the management and distribution of the resources. The appropriation of a res nullius served to defend the right of the original possessors and current occupants to keep their property, to preserve spaces of common property, and as an excuse to argue for the just causes of war and seizing the property of others. Also involved, of course, was the role of commerce and a new ideology of exploitation and



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development ultimately justifying the seizure of land and space, shifting from the idea of a global community to the global market. The second scholastics were the first to question the underpinning of colonization based on different rights for different kinds of men under the command of a presumptive universal authority. Key issues such as the just causes of war and classical assumptions about the right to property were reviewed in an attempt to condemn forceful dominion or colonization. The concept of property as a subjective right was inherited and perpetuated by the second scholastics, and together with this subjective right the foundations of the ius gentium or the new International Law were also reviewed. Although it maintains the ultimate foundation of law in nature as God’s creation and an idea of the community of mankind as the ultimate subject of legal grounding, the ius gentium is broadly classified as a positive right that, albeit in accordance with natural law, is the product mainly of convention and custom. Following Isidore, Gratian and Ockham, Vitoria, Soto, Suarez and Vazquez de Menchaca 23 determined the positive and conventional nature of the ius gentium, giving it, except in the case of Soto, the nature of a ius inter gentes, that is, a right between peoples, independent sovereignties subject to no superior authority. This “secularizing” process was accompanied by a reflection on the just causes of war or just titles that reflected the fact that neither theological nor civil authority bound men together, and so voluntarism and acceptance become the key terms in new international relations. Since neither the pope nor the emperor is the master of the world, there is no comprehensive authority beyond the state or nation. In this new conception, and for most of the Salamanca Scholars, there could be no punishment in the absence of civil authority, and so no aggression could be punished that was not originally directed against a people or civil authority. In the same way, infidelity and paganism were not just

 23

Vitoria, Francisco de (1991), Vitoria. Political Writings, Padgen A. & Lawrence J. (ed.), Cambridge-NY: Cambridge University Press; Soto, Domingo de (1582), De iustitia et iure libri decem, Honoratus; & (1964), ‘Relección de dominio’, in Brufau Prats, J. (ed.), Domingo de Soto, Relecciones y Opúsculos, vol. I, Salamanca: San Esteban; Suárez, Francisco (1614), De Legibus ac Deo legislatore, Antuerpiae: Apud Ioannem Keerbergium; Vázquez de Menchaca, Fernando (1564), Controversiarum illustrium aliarumque usu frequentium libri tres, Venezia: Francesco Rampazetto.



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causes of war, nor was civilizing an excuse to conquer. Infidels and the “uncivilized” peoples of the earth were given a dignity unacknowledged before, briefly making humanity an all-comprehensive community of equal subjects. What survived of the review process as a remnant of an ancient right derived from religion, and as a new excuse for protecting the economic interests of nascent states, were the classical rights to communication (ius societatis et communicationis), trade, and the use of the things considered to be common, understood as legitimate causes of war and hence a justification for colonization. The right of communication, a reformulation of the ancient right of hospitality, included the right to teach the Gospel and establish commerce grounded on God’s plan to reunite humanity through the interchange and exploitation of the world’s resources. In direct relation to the works of the Salamanca Scholars, at the end of the 16th century, Alberico Gentili24 definitively grounded the process of secularization for the law of nations, establishing its juridical and not theological nature and the figure of the state as the leading, indeed sole, actor in international relations. He presented international conflicts as a trial where both sides seek justice. Contrary to the theologically grounding of the scholastics, Gentili gives the grounding of law an anthropological meaning, considering war and conflict as the consequence of human affairs and defects. The balance of power and pursuit of peace were the golden principles of International Law. His work still bears the traces of the idea of a universal community, between rights and morality, limiting and regulating the political action of the state. Ultimately, relations between states were grounded on the survival and interests of the states themselves. Gentili refused religion diversity as a cause for war, and refuted many of the classical theological arguments that justified Spanish colonization. However, Gentili shared several of the views of the Salamanca theologians. Some violations of the ius communicationis and the right to trade, as well as crimes against natural law, were similarly considered just causes of war, with the additional right to occupy the waste land between states. Interesting is his doctrine of the ius post bellum, inviting the victors, who could not be sure of the injustice of the warring enemy, to maintain a criterion of equity when



24 Gentili, Alberico (1933), De Iure Belli Libri Tres, 2 Vol., Rolfe J. (trans.), Oxford: Clarendon Press.



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punishing the vanquished enemy – a criterion allowing for the negotiation of lasting peace, respecting peoples’ right of self-determination. This process of secularization of the law of nations gradually eliminated the idea of a universal right and universal citizenship, and resulted in the classical figures of the law of nations or international rights condemned for this very reason by Kant as sorry comforters. The acceptance of an original distribution of land based on the occupation and the establishment of boundaries over an original res nullius gave rise to a new perspective on the world, a process culminating in a capitalist configuration of the human universe. The new natural founders of the law of nations lost the cosmopolitan vision that corresponded to the subjective, universal right to selfdetermination. Hugo Grotius25 defends a definition of international law as both a natural right and a positive/ human right. Although referring to the society of nation states as the subject and beneficiary of the law of nations, no cosmopolitan perspective beyond the ethical and foundational dimension, no notion of a community of mankind as the subject of natural rights was in place and able to justify the interests of particular states and economic enterprises. The ultimate foundation of the law of nations claimed the rights to travel and trade as natural, perfect and enforceable, and became the new grounds for international law through the transformation of the former right to colonize into the new market laws. Denying the right to the Gospel and “civilizing” intentions as causes of war, Grotius nevertheless introduced a naturalistic justification of colonization, including the occupation of waste land as a perfectly enforceable natural right. So, under the guise of natural law, the economic and imperialist interests of the western world were reinstated, and colonization based on communications and the market gradually replaced the classical expansionist policies of conquest through war. Pufendorf and Vattel26 can be considered the authors par excellence of the transition to the ideology of the cosmopolitan market, represented, among others, by Montesquieu, Hume, and Adam Smith. Modifying the former perfect status of natural right of hospitality, along with the right to

 25

Grotius, Hugo (2005), The Rights of War and Peace, 3 vol., Tuck R. (ed.), Indianapolis: Liberty Fund. 26 Von Pufendorf, Samuel (2005), Of the Law of Nature and Nations: Eight Books, 4th Edition, New Jersey: The Lawbook Exchange. Vattel, Emer de (2008), The Law of Nations, Indianapolis: Liberty Fund.



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communicate and trade, these thinkers about natural law laid the basis for the absolute positivization of International Law. When International Law definitively loses its theological basis and the natural causes of war, cosmopolitanism, or the global community, definitively loses its role as a grounding concept and becomes an absolute ethical concept; hospitality is considered an imperfect duty and market and commerce become the means to reach an end that is no longer concerned with the establishment of a universal right or citizenship. This philosophy conceals the new form of colonization through the market characterizing the international arena until the second half of the 20th century. Obviously this process involves surrendering the idea of a universal monarchy based on the res publica Christiana - the notion of a global monarchy or coercive force able to enforce the natural rights of peoples and individuals, an idea shared by Dante,27 a reflection or an ideal based on the normative force of the idea of mankind whose last manifestation was the work of Christian Wolff,28 the last natural thinker of the law of nations to base the concept of an international community on a worldstate as the ultimate legitimizer of state policies and rights. This idea of a universal state or ultimate form of law was abandoned in favour of the pacifying role of trade and the strengthening of the sovereignty of the state. The gradual move from natural rights to state law and positivism through the “moralization” of cosmopolitanism is interrupted by Kant, the only author whose idea of a global community is based, as he says repeatedly, not on philanthropy but on legal rights.29

 27

Dante Alighieri (1904), The De Monarchia of Dante Alighieri, Henry, A. (ed.), Boston- NY: Houghton, Miflin and Company. 28 Wolff, Christian (1934), Jus Gentium Methodo Scientifica Pertractatum, Drake, J.H. (trans.), Oxford: Clarendon Press, London: Humphrey Milford. 29 Kant, Immanuel: 8:313, 8:357, 6:352. References to Kant’s works refer to the volume and page of the German Academy of Sciences edition. Translations are drawn from the Cambridge Edition of the Works of Immanuel Kant.



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4. On the grounding of law: external freedom and the common property of land The originality of Kantian thought consists in the defence of cosmopolitanism as a right and its grounding on the very same basis as civil rights. His transformation of the understanding of the original state of possessions and the consequences of that state for the justification of private property and rights to self-determination make Kant a unique figure in the history of International Law. Let us examine the grounding of public law in Kantian legal thought. Unlike the authors cited above, Kant based the civil state on a permissive law grounding the realm of rights. This permissive law, in opposition to its classical use in jurisprudential literature, served not to justify the right to do something not forbidden, or possess what belonged to no-one, but to establish the right of possession on the basis of a common ownership of the world, thus limiting the extension and meaning of the right. Under this permissive law, the external freedom of the subject eliminates the possibility of considering things res nullius. The capacity of the subject to act as a free subject is associated with the capacity of ownership, both capacities making the subject an active citizen able to pursue happiness; it is this that defines the status of things. The ownership or capacity to make use of an object of my choice is therefore an action that, insofar as it consists in “drawing” from a previous positive community of possession, requires the consent of all others; therefore a system of law is required in accordance with the moral nature of the subject. If, for example, Kant agreed with the Roman tradition of Civil law or with the authors cited above, and everything were originally res nullius, as these authors believed, then the law that would arise from it would be based on pathological or contingent reasons, such as a system in which ownership is based on the physical capacity to work or dominate. In this way, property is a notion based on humanity, and so the system of right that follows is one based on the equal capacity to own or to be free, on the concept of external freedom. The classical negative community of possession is transformed into an original positive community of ownership. External freedom or the capacity of ownership is what is justified by this law, which grounds the need to create a space of right in which moral action and the pursuit of happiness are secured under conditions of universal validity and distributive justice.



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According to the Kantian theory of property set out at the beginning of the “Doctrine of Right”, subjects do not abandon liberty to enter a lawful state that treats everybody as equal and free only in a formal sense; nor is it an attempt to secure private property or life through coactive means. In the Kantian theory of law, subjects enter the civil state on the condition that the liberty it can secure respects the common property of the land (ursprüngliche Gemeinschaft des Bodens/ communio fundi originaria). This property lies at the basis of private property and is the key, or ground, to the possibility that the innate liberty of the subject becomes a matter of public regulation. 30 The difference between an active and a passive citizenship within a civil state, the fact that some citizens are actors in the decisions of the community while others are passive spectators due to their economical/property status, can be seen as the effect of injustice; hence, for Kant, striving to be an active citizen is a duty towards oneself and to others. The important elements here are the rational origin of law, grounded on the freedom of the subject as part of the human constitution, and the consequences of establishing a right that is grounded on the ability to own property, understood as a means to pursuing the ends of humanity. The constitution of the public law and the civil state are the basis on which outer or international right are defined, the subjects of which are nation states understood as moral persons. But it is also important in order to define a cosmopolitan right that has no further grounding or justification beyond the one used to ground the public civic right. For Kant, because the world is thought of as a multiplicity of states or peoples who must give their consent to enter a public law where what is theirs can be secured, International Law is based on a set of principles aimed not only at balancing power and maintaining peace, but also at reproducing the needs of the natural state, that is the necessity to construct a legal international structure to secure what belongs to every state, illuminating in the process what is not a prerogative of rulers, i.e. the possibility of disposing of their citizens and resources as private goods. As a contribution to the definitive secularization of the law of nations, Kant rules out the notion of justice between states and the possible justification of a just winner, since outside the realm of law there can be neither suit nor sentence.31 And republics must not only seek to balance

 30 31



Ibid., 6:245-76. Ibid., 6:§§57 & 58.

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their strength and grant their autonomy, they must try to function as a centre of attraction for the whole world, as an example and incentive for other to become republican states.32 However, what is of capital importance is that a cosmopolitan right is invoked separately from an international right. This strategy has a dual sense: first, the attempt to give strength to the primary role of the individual in the constitution of public right, a right that cannot be superseded or replaced by the moral personification that is the state; second, the attempt to avoid making the “cosmopolitan” a moral justification in the sense later criticized by Schmitt,33 but to define it as a legal reality, one constructed by individuals who are strangers and do not belong to a community of legal neighbours. The relationships that are established between individuals in this category reproduce natural society within the reality of positive states and legislations, and serve as a reminder of the basis on which the state was constructed and as a prohibition against considering the “other” as less than a virtual and active citizen. Cosmopolitan right makes of every individual inhabiting the world the virtual citizen of a cosmopolis, in a legal sense. Cosmopolitanism is, as Kant insisted, a legal rather than philanthropic or ethical concept. Hence the former principles common to all humanity, the idea of a common humanity of ethical nature, is relegated in Kantian philosophy to the concept of ethical community,34 in the realm of regulatory ideas, while cosmopolitan citizenship is a legal a priori to be respected when establishing relations with other peoples. Cosmopolitanism not only defines the limits of the relationship, but also the legal responsibilities deriving from it.

5. On hospitality or the anti-colonialism principle Kantian anti-colonialism is reflected in his notion of cosmopolitan right. Following Montesquieu, Hume and Smith,35 Kant establishes a very

 32 Ibid., 8:356. 33

Schmitt, Carl (1996), The Concept of the Political, Schwab G. (transl.), Chicago: University of Chicago Press, p.54. 34 Kant, Immanuel, 6:94-5. 35 Hume, David (1985), Essays, Moral, Political and Literary, Miller, E. F.(ed,), Indianapolis: Liberty Fund; Smith, Adam (1904), An Inquiry into the Nature and Causes of the Wealth of Nations, 2 vols., Cannan, E.(ed), London: Methuen & Co.;



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close relationship between commercial activity and the possibility of creating a peaceful world order. However, unlike them, Kant did not consider trade as the spontaneous regulation of exchange or a means of obtaining virtue as a result of interests, but the affirmation of a reality that reflects the basis on a new form of right could be grounded. The possibility of a cosmopolitan law is, Kant says, is conditional on hospitality. This is a controversial idea, relatively neglected in Kantian thought: its interpreters have considered it literally as a hospitable or sheltering action, despite the fact that Kant specifically insisted on the difference between Wirtbarkeit and Gastrecht.36 The duty or right of hospitality is defined by Kant in the work Toward Perpetual Peace as follows: Hospitality (Wirtbarkeit) means the right of a foreigner not to be treated with hostility because he is on the land of another. The other can turn him away, if this is possible without destroying him, but as long as he behaves peaceably, he cannot be treated with hostility. What he can claim is not the right to be a guest (Gastrecht) (for this a special benign pact would be required, making him the temporary member of a household) but the right to visit (Besuchsrecht); the right to be present in society belongs to all human beings by virtue of the common possession of the earth’s surface, a spherical and limited space finally leading to proximity one to another; originally no-one had more rights than anybody else to be in a particular place on earth […] In this way, distant parts of the world can enter peaceably into relations with one another, and these

 Smith, Adam (1896), Lectures on Justice, Police, Revenue and Arms, Cannan. E (ed.), Oxford: Clarendon Press; Montesquieu, Charles-Louis (1777), ‘The Spirit of Laws’, in The Complete Works of M.de Montesquieu, four volumes, Vol. I&II, London: T. Evans. 36 See Derrida, Jaques (2000), Of Hospitality, Stanford: Stanford University Press; La Caze, Marguerite (2004), ‘Not Just Visitors: Cosmopolitanism, Hospitality, and Refugees’, Philosophy Today, Vol.48, 3, pp.313-24; Zlomislic, Marko (2004), ‘Conflict, Tolerance and Hospitality’, The Philosopher, Vol. LXXXXII, 2. At http://www.the-philosopher.co.uk/conflict.htm. A different interpretation, closer to the one offered here, is given by Waligore, Timothy (2009), ‘Cosmopolitan Right, Indigenous Peoples, and the Risks of Cultural Interaction’, Public Reason, Vol.1, 1, pp.27-56; Cf. Kant, Immanuel, 8:357.



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relations can be enshrined in law, finally bring the human race ever closer to a cosmopolitan constitution.37 Hospitality is a right Kant defines as aimed at avoiding turning foreigners into slaves in order to exploit the inhabitants of states with which there exists no legal relationship. In the Metaphysics of Morals, hospitality is defined as the right subjects have to establish commerce, that is the way peoples or persons not legally bound together establish relations - a way to prevent exploitative/submissive relations. The basic cosmopolitan right or duty is not a right to be welcomed or to welcome, but mainly a duty of, or right to, non-exploitation. It makes trade and the exchange of commodities possible and requires “hospitable” action. This action is established between persons who interact through commerce by virtue of the common ownership of the land, this ownership not being enshrined in law. Physical interaction is possible on the basis of a community of land “existing” prior to the positive legislations which regulate the distribution of this land.38 Thus, economic global activity can be considered a state of precitizenship based on the acknowledgement of every subject as a common proprietor, as someone with whom I maintain fair relations. If I do not recognize the other as proprietor and citizen (the only legitimate proprietor that exists) it cannot be understood, within Kantian legal theory, how trade can exist rather than mere exploitation, expropriation, plundering or theft. The person with whom I exchange goods according to a universal measure is someone I acknowledge as an original owner of the land. There is trade only between proprietors and property only if there is common ownership of the land. In turn, there is fair exchange - according to a universal measure - only if there is citizenship. This acknowledgment also entails the need or duty to establish a positive citizenship among the parties to the exchange in order to make the spontaneous undeniable, peremptory. Hospitality and commerce are the means for establishing a universal system of law that considers every subject of the world as an active citizen. In this way, the right of hospitality leads to cosmopolitanism and safeguards against colonialism, becoming the guarantee that cosmopolitanism is not an ethical project depending on the good will of individuals (or at least not only that), but a

 37 38



Ibid., 8:357-8. Ibid., 6:352.

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legal state of justice where all individuals can pursue their own ends and projects.

6. No God or good but only right to justify the law of nations What characterizes the Kantian idea of cosmopolitanism is its juridical or legal nature and the centrality of the individual; the right and duty of acknowledging the “Other” as a legitimate land owner eliminates every residue of colonial right. The new International Law is based on the classical principle of the balance of powers and the pursuit of peace through the steady growth of a central nucleus of republics; the lack of a coercive universal power is balanced by the principles of International Law and the role of the citizen in deciding state matters, together with cosmopolitan rights functioning as the ultimate and comprehensive level of law. The ancient justification of the causes of war that accompanied colonization is excluded from the context of International Law, and with it the pursuit of empire and colonization: the universal community, the right to teach the Gospel or communicate, the right to commerce and trade, are replaced by the right to be acknowledged as a proprietor and to attempt to establish trade relations leading to legal regulation. The new right of hospitality leaves no wiggle room for a possible justification of colonization; it is precluded by the right of people to limit the entrance of others and by the adjectives that accompany in Kant’s work the traditional right of commerce.39 Going beyond Enlightenment thought on International Law, Kant was neither a conformist nor a utopian; he established for the first time the linkage of cosmopolitanism with positive right, transforming the former into a concept that could not – in response to theological promptings - be pressed into service as a justification for colonization, be understood as an ethical ideal justifying the state of affairs resulting from sceptical realism or positivism, or, indeed, as the basis for capitalist idealism.

 39



Ibid., 6:353.



THE PRINCIPLE OF EQUALITY AND THE RELIGIOUS FOUNDATION OF HUMAN RIGHTS: A CRITICAL REVIEW OF GEORG JELLINEK’S WORK FRANCESCO GHIA UNIVERSITY OF TRENTO

«To politikon dikaion» - political justice – is the core of the investigation in Aristotle’s Nicomachean Ethics of juridical forms of (distributive and commutative) justice. The neutral form of the phrase suggests that it is the indication of the core of what is right. And since this ‘right’ is identified with equality (to ison) and friendship (he d’isotes kai omoiotes philotes), because justice and friendship naturally grow together, are found in the same individuals and have equal extension, it means we are talking about the law that must govern men deemed equal and free both in analogic, qualitative terms and in arithmetical, quantitative terms («eleutheron kai ison he kat’analoghian he kat’arithmon»). In other words, what is being discussed is the criterion for directing political association «epi koinon biou pros to eivai autarkeian» in view of the higher good of a selfsufficient community life capable of finding within itself the reasons for its existence.1 This paper argues that the «principle of equality»2 inferred in its dual quantitative and qualitative aspects by the Aristotelian treatment of «political justice», with the inevitable impasses it brings when applied in practice, is the same «principle of equality» inferred from the regulatory ideal of cosmopolitanism and by its objective political correlate represented by postulating the universal human rights the public institutions of the state merely acknowledge and are unable and unentitled to establish ontologically. This is argued through a critical review of

 1

Cf. Aristotelis Ethica Nicomachea, E, 1134 a, pp. 25-30. In relation to the philosophical legitimacy of elevating equality to a «principle», rather like similar attempts for hope or responsibility, see Moretto, Giovanni (1999), Il principio di eguaglianza nella filosofia, Naples: Esi .

2



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Georg Jellinek’s famous theses regarding the religious foundation of the juridical declaration of human rights.

1. A philosophical overview of the «principle of equality» In Naturrecht und menschliche Würde of 1961 the neo-Marxist philosopher Ernst Bloch had no qualms in invoking an evangelical image to support the postulate of the «principle of equality», specifically St John’s image of the vine and its branches (John 15, 1-11). In this psalm, one of St John’s characteristic arguments regarding Christ’s ‘autoepiphany’, invariably introduced (evoking Ex 3, 14) by the appellative phrase Ego eimi («I am»), Jesus represents himself as the vine on which the branches of God’s people are grafted: «I am the vine; you are the branches. If you remain in me and I in you, you will bear much fruit; apart from me you can do nothing. If you do not remain in me, you are like a branch that is thrown away and withers; such branches are picked up, thrown into the fire and burned. If you remain in me and my words remain in you, ask whatever you wish, and it will be done for you. This is to my Father’s glory, that you bear much fruit, showing yourselves to be my disciples.» (John 15, 5-8).

Evidently, the meaning of this passage is to be set at the horizon of the «theology of the mystical body» that is so important in the major opus of the philosopher from Tübingen. In the light of this theology, the outlines of which are sketched in the majestic doxology regarding the ‘Spiritual Gifts’ of 1 Cor 12, 1-31, Bloch describes the path of humanity in terms of a «Wir-Begegnung», the meeting of single individualities that arrange themselves to become a united and indissoluble «us»: «The encounter of men on the path of history and society would have no face if it did not have an abundance of faces and if it were not ordered concentrically.»3

For Bloch, the concentricity of men’s path through history, the delineation of which is not free of the labours of ‘educating mankind’ described by Herder and Lessing, has the oxymoronic features of the «unrestricted polyphony of a unison»,4 an organized totality in which the

 3

Bloch, Ernst (1961), Naturrecht und menschliche Würde, Frankfurt a.M.: Suhrkamp, p.192. 4 Ibid.



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single parts, each in their own way, merge to become a transcendental superior unity. Thus, as we have learned from a well-known page by Benedetto Croce and elsewhere, the history of mankind is inserted in the flow of the hermeneutic circularity of a universality that becomes detailed and of a particularity that becomes universal: Croce posits that historical knowledge arises from «action, namely from the need to clarify and once again define the obscured and confused ideals of action, and that, by thinking of what has occurred, makes possible their new definition and prepares for new action. From the width of historical vision, in which each time the mind, by reacquiring conscience of the whole, rises towards the living God, from the rush of the soul in aspiration and in intimate prayer, one passes on to practical action, that in its making is necessarily particularity and closeness.»5 This circularity of the universal and the particular was very familiar to the thinker who, perhaps more than anyone else, sought in his moral and political philosophy to give life to the symphonic and sym-philosophical ideal peculiar to the Goethezeit (Goethe’s time), i.e. Johann Gottlieb Fichte. In the second and third lectures of his “Bestimmung des Gelehrten” (Vocation of the Scholar), Fichte saw the ultimate aim of society precisely as the «principle of equality», postulated in terms of a «perfect equality of all of its members»: «if the attitudes of everyone, considered per se, are the same – and they are, effectively, within the limits in which they depend only on pure reason – and if therefore they must be cultivated in everyone in the same way […], obviously the result of this equal education of identical attitudes must always and everywhere be the same, no matter how different the subjects are.»6

So for Fichte, social assembly has the fundamental purpose of educating the will of every single man to become universal law, so everyone has the same will and the same vocation. This is the ultimate vocation, in fact, as described in the Sittenlehre (System of Ethics), to which «all of our thoughts and actions must tend, including our individual

 5

Croce, Benedetto (1939)3, La storia come pensiero e come azione, Bari: Laterza, pp.174-175. 6 Fichte, Johann Gottlieb (1977), La destinazione del dotto, Alfieri, V.E. (trans.), Firenze: La Nuova Italia, p.64.



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education: we are not ourselves our ultimate vocation, but all of us are the ultimate vocation.»7 What is the meaning of this statement that all of us must be the «ultimate vocation»? Evidently, it cannot mean anything else but an intimate correlation between the Bestimmung (vocation) of the individual and the Bestimmung of mankind as a whole.8 This correlation, however, cannot be produced by an artificial institution, albeit the supreme institution of law, but rather should already be inscribed in the very same entelechy of the freedom of our will, articulated in the double facets – active and passive – of the instinct to communicate and the instinct to receive.9 This double facet, secretly inspired by the apocatastatic law of colligere fragmenta, ne pereant (indeed because «no work that is based on reason, and is performed in order to expand the power of reason, can be purely lost in the course of time »10), ultimately finds its apotheosis in union within «a single body, completely known to itself in all of its parts and everywhere progressed in the same way.»11 This accomplishment, approaching the horizon of the constitutive Perfektibilität (perfectibility) of the essence of man, is clearly destined to transcend the limits of time and space and to take on the political and eschatological appearance of the «Realm of the Spirits». Looking closely, this Realm is the actual embodiment of the theology of the mystical body, since it is «a community of beings in which no one can labour for himself without at the same time labouring for his fellow men, nor can he labour for others without also labouring for himself, where the success of one member is the success of all, and the loss of one is the loss of all.»12 Thus, the philosopher from Rammenau writes that a disadvantage for the individual, since it can no longer be an advantage for any other,

 7

Fichte, Johann Gottlieb (1994), Il sistema di Etica secondo i principi della Dottrina della Scienza, De Pascale, C. (ed.) Rome – Bari: Laterza, p.234. 8 In this regard, cf. Ghia, Guido (2002), Destinazione dell’Io alla libertà. Un confronto tra l’Etica teologica di Richard Rothe e la Sittenlehre di J.G. Fichte, in Venturelli, D. (ed.), Religioni, etica mondiale, destinazione dell’uomo, Il Genoa: Melangolo, pp.95-123. 9 Cf. Fichte, Johann Gottlieb (1977), Op.Cit., p.64. 10 Fichte, Johann Gottlieb (2001), La destinazione dell’uomo, Cantoni, R. (trans.), Cesa, C. (ed.), Rome-Bari: Laterza, p.91. 11 Ibid., p.95. 12 Fichte, Johann Gottlieb (1977), Op.Cit., p.78.



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according to an organicistic-systemic model, becomes «a disadvantage for the community and for each of its single members, and is felt with the same pain by each member, and is repaired with the same activity; every progress made by one man is made by the whole of humanity.»13 Individual existence is therefore part of a Verkettung der Wesen (chain of being). In this concatenation, the sense and destiny of individual existence can be understood only starting from the sense, and the total sense, of the existence of the entire human race in a sort of massive social and political theodicy that, precisely because it evokes intimate solidarity among the philosophies of history, acquires the features of a genuine cosmodicy. «My existence,” Fichte concludes in his Bestimmung des Gelehrten, “is not in vain and aimless; I am a necessary link in the great chain of being which reaches from the awakening of the first man to the perfect consciousness of his existence, onward through eternity.»14

Clearly, such a cosmodicy, placed at the horizon of a philosophy of history, was able to find its constant Pole Star only in the political constellation typical of the deutsche Romantik (German Romanticism) that finds its fundamental law of reference in Novalis’s imperative: «wir müssen zum Volk werden» («we must become a people»). 15 In this context, the people are not naturally enclosed within precise and specific geographical borders, i.e. they do not represent the spirit of the particular but rather an ideal-typical construction summarizing the universal spirit Novalis himself described, using expressions that are symptomatically abundant in allusions to idealist terminology. In other words, it is a Staat der Staaten («State composed by States»), the Tathandlung – i.e. actus purus – of a politische Wissenschaftslehre («a political ‘doctrine of science’») based on the «principle of the union of States as intellectual vision of the political Ego» (das Prinzip des Staatenvereins als intellektuale Anschauung des politischen Ichs).16

 13

Fichte, Johann Gottlieb (2001), Op.Cit., p.100. Fichte, Johann Gottlieb (1977), Op.Cit., p.78. 15 In this connection see Cesa, Claudio (2008), ‘Popolo, nazione e Stato nel Romanticismo tedesco’, in Le astuzie della ragione. Ideologie e filosofia della storia nel XIX secolo, Turin: Aragno, pp.47-74. 16 Novalis (1995), Cristianità o Europa, Reale, A. (ed.), Milan: Rusconi, p.120. 14



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The concepts of Staatenverein (union of States) and Volk (people) were destined to meet and merge in the climate of the Goethezeit. From this meeting, it could be said that cosmopolitism, in its Kantian function as the regulatory (and not constitutive) principle of humanity’s appearance in the forms of the ethical community, ends up having the idealised traits of an ewiges Volk, an «eternal people» that dares to transcend the finiteness of time and space in an attempt to mend and redeem from within the lacerating contradictions of this world. As we all know, the expression «eternal people» alludes to a famous passage of the Staatskunst (politics) by Adam Müller, which says that a people, far from being a mere bundle of ephemeral beings «with a head, two hands and two feet, who only in this current, miserable moment stand, with all the exterior symptoms of life, on a spot of the earth’s surface», is in fact «the sublime community of a long series of generations past, present and future, all united through life and death by great, intimate ties; each one of these generations and, within them, each single human individual is the guarantee of the common link, and in turn is guaranteed by such link with his entire existence.»17 In this way, the solidarity between, and community of, generations defined by the «eternal people» metaphor, becomes the most plastic example of a theodicy that gives voice to the «sleepless attempts to dominate the unsettling problem of the difference in human fates» 18 : namely, those attempts (envisaged in a metacosmic horizon) that in the Goethezeit condense into the postulation of the moral Perfektibilität of individuals. Thus, writes Giovanni Moretto: «the nature of the space in which the Jobian tensionality of Kant’s thought is destined to find solace is no different from that of the space in which take place Lessing’s resumption of the ancient myth of metempsychosis and of the Catholic theologumenon of purgatory, or the resumption by Schleiermacher and Fichte of the Old Testament prophecy of a time in which ‘no one will any longer need to be instructed because everyone will be instructed by God’. It remains a u-topic space that, although never empirically locatable, intends to reveal and define authentic spatiality – which Kant names ‘highest good’ and has synonyms such as ‘golden age’, ‘perpetual peace’, ‘kingdom of heaven’ – in which

 17

Müller, Adam (1922), Elemente der Staatskunst, Jena: hrsg. v. J. Baxa, Bd. 1, p.147. 18 Moretto, Giovanni (1999), Op.Cit., p.16.



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the only thing imaginable is the full implementation of the principle of equality inhabiting, as a utopia or daydream, the thought of mortals.»19

2. Cosmopolitism and national states. An analogy with the relationship between invisible church and visible churches (Ernst und Falk by G.E. Lessing) The cosmopolitism ideal seems to reveal its enormous explicative potential of theodicy of history precisely in the u-topic space and in the uchronic time of the «principle of equality». This is what emerges clearly, for example, in a somewhat peculiar essay of the deutsche Aufklärung (German Enlightenment), Ernst und Falk. Gespräche für Freimaurer by Gotthold Ephraim Lessing. 20 This singular work was described by Reinhart Koselleck in his Kritik und Krise as the best expression of the tensive dialectic between State and individual from which the bourgeois conscience allegedly stemmed as a claim for an intimate and secret private space erected as a barrier against the absolute pervasiveness of the public space. 21 In this essay we perceive the stratification of separate levels of interpretation: the evident ‘heretic’ treaty on the ontology of Freemasonry is accompanied by the latent meaning of an ethical, political and religious reflection on the inequality of human destinies. In this reflection (part of the Liberalität (liberality) horizon to which, ultimately, the evocation of the «principle of equality» always implicitly refers), the Freemasonry theme is a pretext or screen for showing how the semantic universe of the words ‘State’ and ‘Church’, in both their visible (nation States and confessional Churches) and invisible (cosmopolitism and the mystical body of the communio sanctorum) manifestations overlap with practically perfect symmetry – and it no accident that the term unsichtbare Kirche (invisible Church) pops up at a certain point in the dialogue.22 It is especially in the Second Dialogue, centred on Falk’s question to Ernst: «Do you believe that men were created for the state, or that the state was created for men?» - recalling in its chiasmic structure (the hermeneutic model of which is clearly traceable to Plato’s famous

 19

Ibid. Lessing, Gotthold Ephraim (2006), Ernst e Falk. Dialoghi per massoni, in Ghia, G. (ed.), Opere filosofiche di Gotthold Ephraim Lessing, Turin: Utet, pp.665-699. 21 Cf. Koselleck, Reinhart (1972), Critica illuminista e crisi della società borghese, Panzieri, G. (trans.), Il Bologna: Il Mulino, pp.100-114. 22 Lessing, Gotthold Ephraim (2006), Op.Cit., p.677. 20



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dilemma in Euthyphro) a typical reasoning method used by Lessing in his theological works of the Fragmentenstreit (the expression found in the Anti-Goeze, «religion is not true because the evangelists and apostles taught it, but they taught it because it is true» comes to mind here, for example) - that the dialectic between the visible dimension and the invisible one, between the empiric dimension and the intelligible one, between the phenomenal dimension and the transcendental one emerges with its full dramatic pathos. After establishing, according to a classical analogic model of political philosophy, that social order based on the capability of self-government of its members can exist (for example in ant societies), and that such an order, although difficult to achieve, would be desirable in human society too, Falk answers his own question by saying that: «The state unites men, so that through this union, and in this union, each single man may enjoy all the better and more surely his share of happiness. The sum total of the joy of each member is the happiness of the state. Aside from this there is no happiness. Any other good fortune of the state for which even a few members suffer and must suffer is merely the cloak of tyranny.»23

In short, if «the civil life of man and all state constitutions are nothing but a means for human happiness», in other words if the state and civil society are not natural but are human artifices, they share the structural fallibility of all human constructions, a condition that implies that even in the very best constitution things occur that are «highly hurtful to human happiness and of which man in his natural state unfortunately knew nothing.»24 Falk goes on to wonder what the creation of the best possible constitution would mean. If all mankind lived under this excellent constitution, would all men in the world live in a single state? Hardly. In fact, a state of such proportions would be ungovernable and would have to be split up into many smaller states all governed by the same laws, so that «men would even then continue to be called Germans and Frenchmen, Hollanders and Spaniards, Russians and Swedes, or whatever they may call themselves.»25 The dismemberment of the world of men into a considerable number of special states, each guided by the law of interest, and therefore the

 23

Ibid., p.671. Ibid, p.672. 25 Ibid., p.673. 24



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ensuing conflict of interests, would end up as a sort of large heterogenesis of goals, evidently upending the reason for which men create societies: the means that joins men to guarantee their happiness would also inexorably divide them. As if this were not enough, differing habits generated by different climates and latitudes, differing lifestyles and hence different customs notoriously give rise to differences in religion. Lessing was particularly sensitive to this topic, and indeed the Gespräche was written more or less at the same time as his great work on ecumenism, Nathan der Weise. Falk continues, arguing that even in the presence of the best constitution possible men would always «conduct themselves toward one another in a way no different from that in which our Jews and Christians and Turks have always treated one another. Not as mere men toward mere men, but as one class of men toward another class, who are contending for certain spiritual preferences, and founding principles upon these that would never have occurred to the natural man.»26 So, civil society is unable to unite men without dividing them and cannot divide them without creating an abyss between them or raising barriers. Indeed, the division continues inside the barriers, allegedly ad infinitum. Can one, in fact, imagine: «a state without differences in rank or station? Be it good or bad, nearer or farther from perfection, it would still be impossible that each member of it should bear the same relation to the others. Even if they all had a share in the making of the laws, still each could not have the same share, at least not the same direct share. There would therefore be superior and inferior members. If at the outset all of the possessions of the state could be equally divided between them, such an equal division would not survive two generations; one will know better than another how to use his own property. Yet, even he who will have managed it more poorly will be required, just like the other, to divide it among a large number of descendants. There would therefore be richer and poorer members.»27 Must one therefore accept the social, political and religious inequality represented by differences in social status, boundaries, differences

 26 27



Ibid., p.674. Ibid., p.675.

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between states and finally by different religions, each asserting its absoluteness? In Lessing’s view, these differences are «moral evils». However, Koselleck remarks, «he does not see them as a manifestation of immoral tyranny, unlike the naïve-Utopian Masons, but as a part of human nature. With this representation of ‘inescapable evil’, Lessing has also defined the sphere of politics.»28 Thus, Lessing’s definition of the sphere of politics, assigning to it the task of contrasting mala in mundo, whilst insisting that it acknowledge its own limitations (like Kant with the notion of a radikal Böse – radical evil) in the face of the structural nature - irredeemable by humankind - of the malum mundi, must finally open up to an opus supererogatum,29 to the regulatory principle of an imperative «of mutual love, of the agape, and therefore to the principle of equality (a veritable ‘postulate’ for Lessing), that justifies itself – following a clear guiding thread between Leibniz and Lessing – starting from the concept of perfectibility and from the presence in each human being of a common tension towards a chance for hope and redemption, within the sphere of the eternal.»30

3. The «natural system of human sciences»: the notion of ‘human rights’ as an effect of secularisation After this discussion of the «principle of equality», we can try to investigate how, where and when the notion of «human rights» was born. A «natural and ethically founded right», namely the idea according to which in nature there are «solid concepts, relationships regulated by laws, an evenness that everywhere must result in the same fundamental lines of economic life, of juridical order, of moral law, of aesthetic regulations, of faith and religious cult» is for Wilhelm Dilthey the fundamental basis of the «natural system of human sciences», i.e. of that great cultural and political process triggered by the historical climate of Renaissance humanism. 31 This system assumes and postulates that the foundations, regulations and concepts of human thinking, poetry, belief and social

 28

Koselleck, Reinhart (1972), Op.Cit., p.102. Cf. Lessing, Gotthold Ephraim (2006), Op.Cit., p.676. 30 Ghia, Guido (2006), ‘Introduzione’, in Lessing, Gotthold Ephraim (2006), Op.Cit., p.46. 31 Dilthey, Wilhelm (1974), L’analisi dell’uomo e l’intuizione della natura dal Rinascimento al secolo XVIII, Sanna, G. (trans.), Florence: La Nuova Italia, vol. 1, p.118. 29



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behaviour are invariable and independent of changes in the forms of civilisation; they dominate all of earth’s peoples and act everywhere without distinction: «On this the autonomy of man is founded. When humanity acquires conscience of these principles and places them as the rules for its operation, when it brings all existing faiths and institutions before the tribunal of the system deriving from it, it enters the stage of superiority and of light. Before this tribunal now must come all of the society’s institutions and all of the Church’s dogmas.»32

For Dilthey, the revival and re-thinking of ancient natural law in the early modern age, at a time characterised by the ravages of almost an entire century of bloody and fratricidal wars arising for confessional reasons (from the Schmalkaldic war to the Thirty Years war), is tantamount to the theoretical and practical need to find a foundation for civil cohabitation other than the rule of confessional religion. Since mankind had begun to experience how religious passion, degenerating into fanaticism, destroys instead of building social peace, a claim can be made that by reformulating the fundamental concepts of law, religion, ethics and politics on the grounds of the universally human, the issue of human rights becomes, in the modern world, an effect of secularisation.33 In other words, in modern Western societies, individual human rights occupy the place of, and have the unifying function once assigned to, historical religions.34 In order to invoke a common foundation, appeal is no longer made to the «principle of confession», since joining this or that profession of religious faith may lead to division, but rather to the «principle of freedom», the sense of common humanity, the universal elements and values of which man, without adjectives, is made - at whatever latitude. In short, one finds in this ratio, as Giovanni Moretto writes, «the element that unifies all men, making them keepers of the biblical imago Dei or of Spinoza’s mens Dei, that dictates to the conscience of every man truths that are not dissimilar to those enunciated

 32

Ibid., p.119. As regards the discussion on the secularisation - modern age link, see Scholtz, Gunter (1991), Kritik und Affermation des Säkularisierungsbegriffs. Anmerkungen zu Blumenberg und Lübbe, in Id., Zwischen Wissenschaftsanspruch und Orientierungsbedürfnis. Zu Grundlage und Wandel der Geisteswissenschaften, Frankfurt a. M.: Suhrkamp, pp.293 – 308. 34 In this regard, cf. Pannenberg, Wolfhart (1991), Cristianesimo in un mondo secolarizzato, Pontoglio, G. (trans.), Brescia: Morcelliana, spec. pp.11-34 («La controversia sulla secolarizzazione e la questione delle sue cause storiche»). 33



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by the Sacred Books in their more genuinely religious and ethical parts.»35 Naturally, the «principle of freedom» involves the simultaneous assertion of the «principle of equality» in its juridical aspect, as ErnstWolfgang Böckenförde points out by picking up a theme dear to Carl Schmitt’s Verfassungsrechtsgeschichte (history of constitutional law): «all individuals, in their mutual relationships, are juridically equal and independent from each other. It is not admissible that certain men exercise their (political) dominion over other men, nor that a class of men (nobility) dominates another (farmers): all of them are all together submitted to the ruling and decisional political power of the State, which after all has an inclusive character; for everything else, namely apart from this shared subordination, all individuals are juridically free. The regulation criterion for social and political coexistence now is the law of the State; law progressively transforms into state legality.»36

In his study of the historical development of Althusius’s thinking on natural law, Otto von Gierke saw the failure of all attempts to restore the theocratic idea in the political doctrine of the 17th century as a premonitory sign of the search for a unifying juridical element founded on the humanum and the consequent transformation of Recht (law) into Staatslegalität (State legality): «The undisputed authority reached by Hugo Grotius’s system, Gierke writes, cut short any kind of opposition. Not even the most fervent absolutists ever had any more interest in reconducting the State and state power to a supernatural source, since Hobbes had constructed its inexorable despotism on a contractarian basis and had turned the State into an – albeit quite earthly – ‘mortal god’. In Germany, where the dominating axiom ruled that the State was merely based on natural law, Samuel Pufendorf conducted the decisive battle. He founded his system of philosophical doctrine of the State entirely on the grounds of natural law, inspired by the then wide-spreading concept of moderate and illuminated

 35

Moretto, Giovanni (2011), Ermeneutica, Ghia, G. (ed.), Brescia: Morcelliana, p.147. As regards the definition of the relationship between «principle of confession» and «principle of freedom», see Ibid., pp.47-78 («Principio della confessione e principio della libertà nella interpretazione filosofica della Bibbia»). 36 Böckenförde, Ernst-Wolfgang (2007), Cristianesimo, libertà, democrazia, Nicoletti, M. (ed.), Brescia: Morcelliana, p.125. As regards the reference to Schmitt, cf. Schmitt, Carl (19682), Verfassungsrechtliche Aufsätze, Berlin: Duncker § Humblot, pp.397 and ff.



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absolutism, and expressly repudiated theocratic thought. After him begins the era of rational law dogmas, with its numerous natural systems of general public law.»37

The – theoretically - most important result of Grotius and Pufendorf’s revival of the theory of ius naturae, in both Gierke and Dilthey, is its autonomisation or secularisation: such ius is entirely a ius humanum, no longer identified – unlike in Tertullian, Cyprian, Lactantius, Augustine and Thomas – in the lex Dei and therefore no longer seen as the expression of an unchangeable ius divinum.38 In his Prolegomena, Grotius identified the driving force of human action in mankind’s «appetitus societatis», namely in the quest for a peaceful and ordered life («according to the rules of human reason ») together with other human beings. 39 Grotius’s critiques variously questioned the meaning to be attributed to the pro sui intellectus modo on which, according to the Dutch jurist, man’s social appetite should be based, i.e. they prefigure, from a metaphysical and rationalist viewpoint, a society to be constructed on the basis of the intellect, or rather if that «modus» should be intended as a «limit», thus immanentistically hypothesising a society to be designed within the psychological limits of the human capacity for understanding.40 Dilthey does not take sides in this debate. He restricts himself to repeating, for his own reconstructive purposes, that Grotius’s social impulse is the cause of the articulation of «universal jurisprudence»,41 i.e. an «unshakeable substrate of juridical elements» 42 able, from the anthropological viewpoint, to go beyond the biological principle of selfpreservation and, from the epistemological viewpoint, to give birth to the

 37

Gierke, Otto von (1974), Giovanni Althusius e lo sviluppo storico delle teorie politiche giusnaturalistiche, Giolitti, A. (trans.), Turin: Einaudi, [reprints of 1943 ed.], p.74. 38 In this connection, see Graf, Friedrich Wilhelm (2006), Moses Vermächtnis. Über göttliche und menschliche Gesetze, Munich: Beck, pp.22-32. 39 Cf. Grozio, Ugo (19793), Prolegomeni al diritto della guerra e della pace, edited by G. Fassò, G. (ed.), Naples: Bibliopolis, p.35. 40 Regarding the debate over Grotius’s critique, see Todescan, Franco (2003), Uomo, natura, società. Amore, socialità e legge nella filosofia e teologia del diritto del sec. XVII’, in Etiamsi daremus. Studi sinfonici sul diritto naturale, Padova: Cedam, pp.43-65. 41 Dilthey, Wilhelm (1974), Op.Cit., vol. 2, p.41. 42 Ibid., p.45.



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Selbständigkeit (independence) of the general science of law. 43 As the Biebrich-born historicist explains: «from the moment of its birth, every living creature takes care of itself, strives to preserve its life, to avoid its destruction and seeks that which favours its preservation. However, man also develops a social impulse. Animals too do not solely take care of their own lives, but also of that of their offspring and of other individuals of their own species. In children there soon arises compassion and the tendency to do good deeds for others. The social impulse is accompanied by languages and by the faculty to create general rules and to abide by them. Law is founded on all this with its order to abstain from seizing the wealth of others, to comply with obligations, to compensate for damage done, including the weregild principle. Human nature also includes the faculty to calculate good and bad, to sacrifice present pleasure for future gains. The rules of life that ensue retain their value despite the existence or will of divinities, because they derive from nature.»44

In describing the ideas of natural law, humanity and progress as closely related, and related to common European thought, Ernst Troeltsch located their original basis in the Humanistic-Christian idea of dignitas hominis and its dual meaning of universal lex naturae and the divine and rational order of the world. Based on this idea, man’s true nature «is divine reason acting on him to dominate sensuality and passion.»45 In this connection, Adolf Arndt points out that it was when Pufendorf brought the concept of dignitas humana to the centre of the secularised modern State that modern juridical and political thought found itself forced also to review the problem of the juridical foundation of the legitimate use of violence by the police and the State itself (a topic that became the focal point of Weber’s political philosophy). 46 Indeed, in



43 See Dilthey, Wilhelm (2004), L’essenza della filosofia, in Scritti filosofici (19051911) di Wilhelm Dilthey, Rossi, P. (ed.), Turin: Utet, p.419. For the Diltheyan interpretation of the history of law, see Marini, Giuliano (1965), Dilthey e la comprensione del mondo umano, Milan: Giuffrè. 44 Dilthey, Wilhelm (1974), Op.Cit., vol. 2, p.253. 45 Troeltsch, Ernst (1993), ‘Diritto naturale e umanità nella politica mondiale’ in Id., Lo storicismo e i suoi problemi, vol. III: Sulla costruzione della storia della cultura europea, with the addition of ‘Lo storicismo e il suo oltrepassamento‘, Cantillo, G. & Tessitore, F. (ed.), Naples: Guida, p.104. 46 In this regard cf. Ferber, Christian von (1970), Die Gewalt in der Politik. Auseinandersetzung mit Max Weber, Stuttgart – Berlin – Köln – Mainz: Kohlhammer.



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theocratic conceptions Gewalt (power) was originally motivated and authorised through the need to safeguard the unity of faith and the role of the State in saving souls: «Pufendorf’s formula Necesse est ut sit sociabile in a certain way is, Arndt remarks, a return to Aristotle’s zoon politikon, which in actual fact does not simply imply that man is a political animal, but something much more complex and deeper than it appears to be in Aristotle: namely, man is capable of surviving only when he artfully survives through the development of a state-based and juridical civilisation. From this derives Pufendorf’s notion of human dignity, certainly based on secularised ethics grown on Christian grounds, albeit as an entirely profane concept. This notion is the one that now sets up several limits to the state’s exercise of force and violence. In fact, a state that, in the wake of its dissolution into different religions and into believers and non-believers, is incapable of finding other grounds for agreement outside that notion, that therefore becomes vital to it, arrives at a new arrangement when it comes to the use of violence. The idea of human dignity, that brings with it the idea of the equal personal legitimacy of all men independently from the correctness or incorrectness of their thought and of their faith, necessarily produces doubts as regards the use of violence and, consequently, of slavery and vassalage, which in the Middle Ages didn’t jeopardize as such the principle of the saving of souls, doubts about the use of corporal punishment and of the death penalty – indeed, the battle against the death penalty, initiated by Beccaria, takes on full meaning only from this moment onwards- and finally doubts regarding military service.»47

So, the ratio divina present in man should not be considered within the framework of the irenistic ideal of a golden age of undisputed dominion of the ideals of freedom, equality and brotherhood, but rather as a dynamic and dialectic principle acting within the contradictions of empiric reality and of the almost insurmountable power of the affections and passions that always lead to conflict and the emergence of egotistical drives. Thus, anticipating Arndt’s thesis, Troeltsch writes: «Reason, from which individual human dignity derives, then asserted itself through the creation of means of repression in law, power, force and property.»48

 47

Arndt, Adolf (1962), ‘Staatliche Gewaltanwendung, rechtlich und politisch betrachtet‘, in Arndt, Adolf (1976), Politische Reden und Schriften, Ehmke, H. & Schmid, C. (ed.) Berlin: Bonn-Bad Godesberg Dietz, pp.225-248, here pp.239-240. 48 Ibid.



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A fundamental political and theological consequence derives from this: «A rational configuration of these means, taking into account the natural law of human dignity, is since then the ideal of natural law, intended for a cosmopolis and a form of cosmopolitanism of the unitary human genre, that is best organised as a monarchy which in turn is the reproduction and copy of the divine dominion of the world. All of this ideal world has been acknowledged by Christianity as the integration of its ethic, unprepared vis-à-vis practical and social problems and focused on the beyond and on the end of the world.»49

It is the doctrine of original sin that acts as a watershed in the history of humanity and marks the hiatus between an absolute natural law that refers to man’s original state, and a relative natural law that refers to the now fallen man:50 «Through the Christian doctrine of the original sin, Troeltsch explains, Christianity became even more conservative and the means of repression of the positive law appeared, significantly, even more sanctified and deified. On the other hand, the spheres of natural law have been edified and verified by means of the Kingdom of God or by means of the Church, which means that strong limitations have been set on a more widespread autonomy and rational self-realization of a natural law that was continuously and unfairly obscured. This link gave rise to Christian natural law that for over a thousand years dominated the spheres of theology, jurisprudence, political science, politics and historiography of the Middle Ages. Under the influence of the corporative society of medieval classes (Stände), all of this was joined by the doctrine of the organic inequality of the parts and of the subdivision of labour according to social classes. The latter was explained in depth, with Aristotle’s help, as the essence of natural morals and of natural law as the emanation of the natural order, next to and under which the merely individualistic natural law always remained operational. It also appeared strongly in every kind of manifestation of the radical sects all the way to Ockham’s political science and to the Jesuitical resistance theory. The natural social doctrines of the Middle Ages have two souls that however are so intimately related in

 49

Ibid. As regards this hiatus and its consequences, seen within the framework of the original sin, see Troeltsch, Ernst (19692), Le dottrine sociali delle Chiese e dei gruppi cristiani, vol. I, pp.208-231 and vol. II: Il Protestantesimo, pp.428 ff., Sanna, G. (trans.), La Nuova Italia: Firenze, where it is shown how the “neoCalvinism” of 17th century England contributed to the sociological and political assertion of absolute natural law over relative natural law. 50



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theory that it is sometimes difficult to determine which of the two is up front.»51

The idea of natural law therefore includes a rational and irrational element, and the ambiguity (or ambivalence) of the concept translates into antithetical social orders in political and practical terms: on the one side the idea of a cosmopolitan and united society (the Christian societas perfecta), and on the other the rigid division of social labour and a manifest inequality among men. According to Troeltsch, however, this contrast (and the contrast between the individual and society) should not be seen as an irresolvable contradiction but rather as a sort of complexio oppositorum propitiated by the fact that it is at one and the same time concept and action, including from the theological viewpoint, i.e. the already mentioned doctrine of original sin. The factum of original sin recreates a condition of equality on the one side, the longing and imperative of a cosmopolitan community of men, and on the other the empiric evidence of their social, economic and cultural differentiation. This equality, as stressed in Troeltsch’s Soziallehren (social teachings), consists in the «religious relationship with God as the focal point of everything» and lives in the knowledge that «in the presence of a common sinfulness and need, all human differences disappear in the presence of God.»52 The original «equality in dignity» propitiated by the dignitas hominis ideal of absolute natural law gave rise, in relative natural law, to a sort of «equal unworthiness» that «is only expressed in the common participation of all in common worship» and, through the worship of Christ, finds its highest expression in «love, that knows no superiority in the feeling of one’s own unworthiness and that shares everything with the feeling that one has first received everything.»53 The hiatus between an absolute natural law and a relative natural law corresponds, from the theological viewpoint, to the distance between the Kingdom of God and the world, between civitas Dei and civitas hominis. Considering, however, that an excessively extreme Augustinian approach would (in Troeltsch‘s view) end up paralyzing earthly life and make the

 51

Troeltsch, Ernst (1993), Op.Cit., pp.104-105. Troeltsch, Ernst (19692), Op.Cit., vol. I, p.80. 53 Ibid., p.81. 52



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implementation of the message of redemption impossible, in its place the idea took hold of finding suitable mediations that would explain and justify in rational and sociological terms the existence of positive political orders, bringing together the philosophical notion of the contrast between nature and convention and the religious idea of the corruption that followed in the wake of original sin. Thus, in Troeltsch’s theologicalpolitical project, parallel to the doctrine of original sin, ultimately runs the idea of the existence of a social and political theodicy aimed at guaranteeing the justification of the will of God and the historicalpolitical legitimacy of the organization of life among men: «The inequality of individuals assumed in all this does not signify their interdiction and the lessening of their autonomy, but rather the need for articulation, integration, graduation and for the transfer of the direction to the great men from whom the spirit of totality is irradiated and organised.»54

Now, recourse to this idea of theodicy on the one hand allows for the theological foundation of the social contract, ultimately seen as a sort of remedium peccati, and, on the other, for reconciling the Kingdom and the world, the revelation of grace and nature, thanks especially to Thomist influence. The Thomist assertion that grace does not abolish nature but, on the contrary, perfects and subsumes it,55 made it possible to consider the order of the relative natural law as a basis for the entire clerical culture and for the historical process in which the juridical system was formed (according to the principle of potestas indirecta) as an «indirect divine institution that is realised through the natural course of things.»56

4. The religious origin of the notion of “individual’s innate rights” In his paper presented on 22 November 1907 at the University of Heidelberg with the title Der Kampf des alten mit dem neuen Recht, Georg Jellinek said: «The overall situation of a people generates its laws, its languages, its customs and its constitution. It is not human will that determines the

 54

Troeltsch, Ernst (1993), Op.Cit., p.111. Cf. Summa Theologiae, I-I, 8 ad 2 e I-II, 99, 2 ad 1. 56 Troeltsch, Ernst (1977), L’essenza del mondo moderno, Cantillo, G. (ed.), Naples: Bibliopolis, p.111. 55



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cultural conditions that propose these outcomes in the people’s overall life. They develop based on laws that are innate in human will, laws that are at the same time necessary and free – free in the sense that they do not derive from the outside but come forth from the noblest nature of the people itself.»57

With his customary care, Dilthey - loyal to the Droysenian distinction between «verstehen» (to understand) and «erklären» (to explain) – warned about deducing historical facts from alleged laws of invariance, and recommended seeking their original identity in the «erleben» (experience). He could quite easily have shared Jellinek’s position. All the more since the core of the theses expressed by Jellinek in his Allgemeine Staatslehre of 1900, according to which the fundamental principle of every juridical relationship is the recognition of the individual as a person, as a creator or «poietic» individual, is entirely coherent with the conviction of the Biebrich-born philosopher, according to which «the orientation towards the protection of the interests of individual will» 58 developed through the «natural system of human sciences.» Convinced, according to his 1878 essay on the ethical and social meaning of law, injustice and punishment, that «social ethics too must, to some extent, start from the individual» and that therefore, «if it wishes to avoid losing itself in the empty speculations of the first half of our century, that, albeit apparently founded on the solid grounds of scientific and natural theories, slightly give way to the denigrated excesses of idealistic philosophy, it must start from the human person as it already appears, in se, in its bodily and spiritual dispositions, namely always as a product of a long succession of natural forces», 59 Jellinek develops a «juridical personalism» the origins of which can be traced back to the «never entirely extinct Early-Germanic vision of the priority of individual rights that the State does not create but limits itself to recognising.»60



57 Jellinek, Georg (1911), Ausgewählte Schriften und Reden, Jellinek, W (ed.), Bd. 1, Berlin: Häring, p.392. 58 Dilthey, Wilhelm (1989), ‘Leibniz e il suo tempo’, in Dilthey, Wilhelm / Troeltsch, Ernst (1989), Leibniz e la sua epoca, Bonito Oliva, R. (ed.), Naples: Guida, p.88. 59 Jellinek, Georg (1878), Die sozialethische Bedeutung von Recht, Unrecht und Strafe, Reprographischer Nachdruck der Ausgabe Wien, Hildesheim : Georg Olms, p.16. 60 Jellinek, Georg (1960), Allgemeine Staatslehre, Dritte Auflage, Siebenter Neudruck, Darmstadt: Wissenchaftliche Buchgesellschaft, p.411.



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In a letter sent to the jurist Victor Ehrenberg on 19 May 1873, Jellinek identifies the guiding lights of this «juridical personalism» not in legal scholars but in Kant, Lessing, Schiller and Goethe. 61 Although these authors wrote independently of each other and developed their own personal philosophies, they have in common a strong emphasis on the link between freedom and ethical-religious conscience. In his 1878 work «Die Beziehungen Goethe’s zu Spinoza» (Goethe’s relationship to Spinoza), Jellinek uses this link as the foundation of what one may call his «religious liberalism.» In particular, Jellinek gives Lessing the most credit for freeing religious conscience from the treacherous bonds of heteronomous precepts by stating that religion is autonomous62 and by thus conceiving, «contrary to the ideas of orthodoxy and of a flattened illuminism (platte Aufkärerei), the history of religion as a progressive revelation, namely as an increasingly nobilitating education of mankind towards reason and freedom.»63 In an important passage in Staatslehre, Jellinek returned to his favourite theme, the history of juridical and political concepts, and described the process of the empowerment of religious conscience: «In modern history, like in the flowering age of the ancient State, the individual very often is submitted to progressive limitations. In ancient times, however, there is a total lack of the clear conscience of a positive juridical pretence to a sphere of freedom toward the State. In the State of the modern age, instead, as well as in ages of unlimited absolutism, the conviction has always dominated that the individual is a self-justified ethical and juridical entity even before the State and therefore recognisable by the latter. This conviction resulted from that double

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As regards reference to this letter, see Keller, Christian (2000), Biographische Ansichten. Georg Jellinek in seinen Briefen an Victor Ehrenberg, in Paulson, S.L.& Schulte, M. (eds.), Georg Jellinek – Beiträge zu Leben und Werk, Tübingen: Mohr Siebeck, pp.87-99. 62 Selbständigkeit der Religion (the independence of religion) was a phrase that notoriously, a few years later, was to become the motto for the writings in the philosophy of religion of his friend and colleague Ernst Troeltsch. For the relationship between Jellinek and Troeltsch see Graf, Friedrich Wilhelm (2004), ‘Le radici religiose della razionalità moderna. La teoria dei diritti umani di Georg Jellinek nel suo influsso su Max Weber e Ernst Troeltsch’, in Ghia, F. & Ghia, G. (ed.), Sociologia della religione in Germania, «Humanitas» 59 (6/2004), pp.1155 – 1186. 63 Jellinek, Georg (1911), Op.Cit., p.203.



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contrast between the sovereign and the people that the modern State was called to overcome and that never wholly disappeared from human thought. A similar contrast still lives on today in the idea that the power of the State has limitations with regard to the people and that, despite its juridical sovereignty, the State is faced with a number of barriers. The freedom and the medieval privileges of individuals, of corporations and of social classes are connected, as can be historically demonstrated, with modern constitutional freedoms. Thus, the contrast between State and Church has produced, after lengthy battles, the conviction - today mostly prevailing in civil states - that the power of the State has its insurmountable limit in the religious conscience of its members.»64 In opposition to what his contemporaries in constitutional law (especially Émile Boutmy)65 believed, Jellinek did consider Rousseau’s Contrat Social, the philosophers of the Siècle des Lumières and the Déclaration des droits de l’homme et du citoyen of the revolutionary Constituent of 1789 as the source of the modern principle of individuality, but, on the contrary, as the justification of a popular will placed in absolute terms, unable to recognise the autonomy “in principle” of the individual.66 According to Jellinek, the establishment of the right to freedom of conscience should quite rightly revolve around the substrate of «substantial equality» that Rousseau wanted guaranteed by the doctrine of natural law, but should also count on a principle of differentiation allowing the individual to become a single person, at the same time safeguarding freedom of choice and responsibility for action: «The equality doctrine of natural law – Jellinek explains – arose (…) on the religious ground, starting from the assumption, already expressed as far back as the first Stoa, that all men are equal in that they are the sons of God. The idea of equality started acquiring political significance only after the Reform. In the 17th century, natural law grew to become a scientific power. In its composite and diversified system, it derived the State from the acts of will of individuals who, in the pre-state condition, stood as free beings and who, upon its foundation, proclaimed themselves as equal

 64

Jellinek, Georg (1960), Op.Cit., p.328. Cf. Jellinek, Georg (1964a),‘Die Erklärung der Menschen- und Bürgerrechte. Antwort an Émile Boutmy (1902)‘, in Schnur, R. (ed.), Zur Geschichte der Erklärung der Menschenrechte, , Darmastadt: Wissenschaftliche Buchgesellschaft. 66 In this regard, see the considerations of Fioravanti, Maurizio (2001), La scienza del diritto pubblico, Milan: Giuffrè. 65



104 The Principle of Equality and the Religious Foundation of Human Rights beyond any and all inequalities of nature. In this way, freedom and equality were seen as innate and native qualities of men. As soon as these qualities were also conceived as rights, there arose the doctrine of the innate rights of freedom and of equality. According to the different political opinions of each author, these rights disappear in the State or remain as limits to its power. This limit is considered imperfect, by Pufendorf for example, or is set against the power of the state as an unsurpassable obstacle. In more recent natural law systems, innate rights are considered limitable only when the aim of the State requires it - this aim, after all, consisting in the safeguarding of the other residual part of innate rights.»67

For Jellinek, the Petition of Rights and the Bill of Rights, with which the English of the 17th-century North American colonies attempted to resolve the conflicts between Parliament and the Crown, putting in writing the mandatory religious principle of freedom as an indisputable right, are remarkable not only as the first sign of the idea of codifying the individual’s public rights but also because - by moving towards a precise definition of the relationship between the people and the sovereign, between parliamentary royal power - they brought to the fore in a new manner the relationship between the individual and institutions and this, in turn, required a juridical basis for the foundation of freedom and the principle of equality.68 The safeguarding of innate human rights therefore became the driving force in the founding of the State, from which citizens mainly sought personal and public safety. Human rights preserved both a status negativus – i.e. they belonged to the system of juridical guarantees represented by so-called «rights of defence» (the right to protect life, freedom and private property, according to John Locke’s classification) – and a status activus, and, as such, they were part of the «rights of participation in public life». Neither of these two dimensions, however, the negative («freedom from») nor the positive («freedom to»), could prevail one over the other without the onset of a «nihilism that makes any common-life science of man impossible.» 69 According to Jellinek, the threat to safety, on the one hand, and the risk of a nihilism capable of undermining the foundations of social coexistence, on the other, were the

 67

Jellinek, Georg (2002), La Dichiarazione dei diritti dell’uomo e del cittadino, Bongiovanni, G. (ed.), Roma-Bari: Laterza, p.48. 68 Regarding this point, see my paper, ‘La fondazione religiosa della libertà tra uguaglianza e diritti umani. La presenza di Georg Jellinek nell’etica sociale di Max Weber’, in Rivista Internazionale di Filosofia del Diritto, 2/1999, pp.253-284. 69 Jellinek, Georg (1964b), Gesetz und Verordnung. Staatsrechtliche Untersuchungen auf rechtsgeschichtlicher und rechtsvergleicher Grundlage, Neudruck der Ausagbe Freiburg i. Br. 1887, Aalen: Scientia, p.199, n. 11.



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causes that, between the 17th and 18th centuries, led to the specialization of rights from the theoretical viewpoint: «The background consists in the religious interests and in the resistance to the hard repression of conscience exerted by political powers. The result of this was the appearance, even in the doctrines of philosophers and jurists, of the right of freedom of thought, of faith and of conscience as the first individualised right. This was followed shortly afterwards by the emanation of the Rhode Island Charter that proclaimed the right to religious freedom. Spinoza declares freedom of thought and of faith as inalienable human rights. Even more significant is the fact that Locke, in his own way a pupil of the Independentist school, indicates religious freedom as being the first of natural and inalienable rights. That which before was only the product of religious opinions and doctrines receives through him philosophical relevance.»70

According to Jellinek, the emphasis on the principle of autonomy and individuality of religious man could therefore proceed on an equal footing only with the acknowledgement of the unchallengeable nature of the spiritual life of the individual. This principle, on the one hand, signaled the absolute limit of juridical positivism and, on the other, was also the theoretically substantial consequence of the prevalence of the religious and ethical over the political, underlying the idea of the religious (and hence founding, not merely conventional or pactional) origin of the innate rights of the individual.71 Since it presents itself as locus revelationis of the divine, religious conscience provides the individual with all of the tools necessary to perceive himself not only as a man intrinsically free before any heteronomously established law, but also as ontologically equal to other men in the name of common divine filiality and common unworthiness and sinfulness. Or, in Ernst Troeltsch’s words, in the name of that ethicalanthropological watershed, it is the key to any history of juridical-political thought, provided by the distinction between «absolute natural law» (i.e.

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Jellinek, Georg (2002), Op.Cit., p.49. For an overview of this crucial passage of Jellinek’s political philosophy, see Kersten, Jens (2000), Georg Jellinek und die klassische Staatslehre, Tübingen: Mohr Siebeck, and Kelly, Duncan (2004), ‘Revisiting the Rights of Man: Georg Jellinek on Rights and the State’, in Law and History Review, (http://www.historycooperative.org/journals/lhr/22.3/kelly.html). 71



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status naturae integrae) and «relative natural law» (i.e. status naturae lapsae).72 In the commemorative address for Georg Jellinek held by Max Weber on 21 March 1911 on the occasion of the wedding of Jellinek’s daughter Dora, the Erfurt-born sociologist emphasized that one of the indisputable albeit not fully acknowledged merits of Jellinek’s historical-juridical studies was their «demonstration of the relevance of religion to the genesis of ‘human rights’ insofar as it contributed to the investigation of the scope of religious influences in general, even in areas where one would not expect to find them.»73 I believe that this, on its own, justifies the rereading of those studies today, over one hundred years after their publication.

 

 72

Cf. Troeltsch, Ernst (1977),‘Il diritto naturale stoico-cristiano e il moderno diritto naturale profano, in Troeltsch, Ernst, L’essenza del mondo moderno, Cantillo, G.(ed.), Naples: Bibliopolis, pp.95-124. 73 Weber, Max (1963), ‘Gedenkrede Max Webers auf Georg Jellinek‘, in König, R. & Winckelmann, J. (eds.), Max Weber zum Gedächtnis. Materialien und Dokumente zur Bewertung von Werk und Persönlichkeit, Köln-Opladen: Westdeutscher Verlag, p.15. For the relationship between Jellinek and Weber see Breuer, Stefan (1999), Georg Jellinek und Max Weber. Von der sozialen zur soziologischen Staatslehre, Baden-Baden: Nomos.



COSMOPOLITANISM: REALITY

DEFENSE OR DOMINATION? MORAL COSMOPOLITANISM AND INTERNATIONAL ORDER LUCA SCUCCIMARRA SAPIENZA UNIVERSITY OF ROME

1. International morality and cosmopolitan order The major issues raised by the end of the «bipolar age» include the problem of re-founding the general principles of legitimacy sustaining international order and its relation to internal orders of States and societies, in a graduated approach spanning from «indifference» to «penetration and interference». 1 On closer inspection, this problematic context involves «all the fundamental dimensions of the existing political and judicial order, beginning with the ‘structural principles’ that constitute the foundation of any historical model of international coexistence: the principles that determine the legitimate subjects of international order, their status, the distribution of space between them and the conditions on which they may legitimately resort to military conflict.»2 The debate has featured primarily a renewed discussion of the normative foundations of international relations, considered by many one of the clearest demonstrations of the increased critical awareness caused by innovative experiences in the global era.3 Among the historic «events»

 1

Colombo, Alessandro (2010), La disunità del mondo. Dopo il secolo globale, Milano,:Feltrinelli, pp.13 ff. 2 Ibid., p.43 (translation by author). 3 Cfr. Global Justice and Transnational Politics. Essays on the Moral and Political Challenges of Globalization, De Greiff, P.& Cronin, C. (ed.), Boston: MIT Press, 2002; Linklater, Andrew (2007), Critical Theory and World Politics. Citizenship, sovereignty and humanity, London-New York: Routledge; Reconstituting Social Criticism: Political Morality in an Age of Scepticism, MacKenzie, I. & O’Neill, S. (ed.), Basingstoke, Macmillan, 1999.

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underlying what has been defined as the «1989 divide», is the rise – or, as some affirm, simply the re-emergence – of a form of international political morality based not on the «particularism» of a «modern society of States», but on the «cosmopolitanism of so-called global society»:4 a transition based on a stark redefinition of the problematic relations between «the old international legal order of sovereign nation-states»5 and the sphere of fundamental and intangible legal and moral attributes that modern philosophical thought has stably associated with the human condition. Following Thomas Pogge – one of the leading figures in the most recent debate on the issue 6 – there appear to be three founding elements at the basis of this form of cosmopolitical morality: First, individualism: the ultimate units of concern are human beings, or persons – rather than, say, family lines, tribes, ethnic, cultural, or religious communities, nations, or states. The latter may be units of concern only indirectly, in virtue of their individual members or citizens. Second, universality: the status of ultimate unit of concern attaches to every living human being equally – not merely to some sub-set, such as men, aristocrats, Aryans, whites, or Muslims. Third, generality: this special status has global force. Persons are ultimate units of concern for everyone – not only for their compatriots, fellow religionists, or such like.7

What is taking place here is a profound transformation concerning the way we understand the space of moral experience as the founding sphere of the complex of legal and political relations between subjects. This approach is based on the belief that «all persons stand in certain moral relations to one another»8 – in other words, that the whole of «humankind belongs to a single moral realm in which each person is regarded as equally worthy of respect and consideration.»9 This is an assumption that

 4

Ibid, p.15. On «international morality» see Nardin, Terry (1983), Law, Morality and the Relations of States, Princeton: Princeton University Press, p.233. 5 Beck, Ulrich (2006), The Cosmopolitan Vision, Cambridge-Malden, Polity Press, p.132. 6 Cfr. Thomas Pogge and His Critics, Jaggar, A.M. (ed.), Cambridge-Malden: Polity Press, 2010. 7 Pogge, Thomas (1994), Cosmopolitanism and Sovereignty, in Political Restructuring in Europe: Ethical Perspectives, Brown, Ch. (ed.), London: Routledge, p.86. 8 Ibid., p.87. 9 Held, David (2005), Principles of cosmopolitan order, in The political philosophy of cosmopolitanism, Brock, G & Brighouse, H. (ed.), Cambridge: UP, p.12. On this issue see Benhabib, Seyla (2008),’The Legitimacy of Human Rights’, Daedalus, 137/3, p.97: «Moral cosmopolitanism espouses a universalistic morality that views

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- once purged of its most binding prescriptive results - can be translated efficiently into a concrete legal doctrine and practice «protecting the lives of individuals in the world community.»10 Hence, it is no accident that, dealing with this specific point, James Bohman has recently emphasized the key role played in this context by humanness as the «basic normative status» of the new legal and political order in the global era.11 According to this interpretation, the assumption of a «cosmopolitan political morality» means in fact «to adopt the perspective of humanity» as a privileged point of view in the critical approach to regulations and practices currently in force within and beyond State borders. As Bohman points out, it is in fact at this level that we endorse «the perspective of the generalized other» – «a perspective not only critical, but also obligationproducing to the extent that it validates previously unrecognized claims to justice.»12 Worth highlighting is the central role of the «ubiquitous language of human rights» 13 in this process of normative re-foundation. For many supporters of the «cosmopolitical» approach to the dilemmas of global society, the privileged reference to «something quite fundamental about what it is to be human»14 acquired a complete normative framework with the acknowledgment of a sphere of intangible subjective rights, valid beyond any kind of particularistic belonging. Moreover, it is through the two-faced nature of Janus» of human rights 15 – turned simultaneously

 each individual as being worthy of equal moral concern and respect. Our obligations to kin, family, and country, it is argued, do not supersede our obligations to distant strangers. From a moral point view, particularistic attachments, deriving from our rootedness in certain linguistic, cultural, religious, and other communities, have no privileged claims upon us.. 10 According to Benhabib, «legal cosmopolitanism», «while sharing with moral cosmopolitism the view that each and every person deserves equal moral respect and concern», «is agnostic ad to whether, as a matter of morality as opposed to law, the needs of distant strangers must always take precedence over our more particularistic attachments.» Cfr. Benhabib, Seyla (2008), Op.Cit., p.97. 11 Bohman, James (2007), Democracy across Borders. From Dêmos to Dêmoi, Cambridge-London: MIT Press, 2007. 12 Ibid., p.116. 13 Benhabib, Seyla (2008), Op.Cit., p.94. 14 Vincent, Andrew (2007), ‘Particularism, human rights and the transnational challenge’, in Globalisation and Citizenship.The transnational challenge, Hudson, W. & Slaughter, S. (ed.), London-New York: Routledge, pp.113 ff. 15 Habermas, Jürgen (1998), Zur Legitimation durch Menschenrechte, in Idem, Die Postnationale Kostellation, Frankfurt am Main: Suhrkamp.

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towards the acknowledgment of the universal value of human beings and towards the determination of the procedural conditions for its achievement – that the principals of «cosmopolitan morality» have gone beyond being mere theoretic statements, and have become a program for practical action, gaining space within the complex international legal framework of global society. In the current dynamics of international politics, the classical Westphalian assumption that nation states are the sole or main subjects of international order, clearly appears to be «counterbalanced and, at least in part, threatened by the recognition of inalienable rights belonging to single individuals.» 16 This has given rise to new institutional developments within the «international human rights regime» that emerged over sixty years ago with the UN Universal Declaration and then developed into a fuzzy «set of interrelated and overlapping global and regional regimes that encompass human rights treaties as well as customary international law or international soft law.» 17 With this transition, the traditional system of international relations centered around the concept of «Westphalian sovereignty», appears to be about to leave the ground to the revolutionary cosmopolitan legal order envisaged by Kant in some of the best-known pages of his essay Zum ewigen Frieden18: a global sphere of inter-subjective relations based on the recognition of universal individual rights, binding on the States and enforceable against them, including, where necessary, by the use of force. From this point of view, it can be said, with Seyla Benhabib, that the «utopia of cosmopolitanism has become much more concrete in our times than when it was articulated by thinkers like Kant in the eighteenth century.»19

2. Defending Humanity According to Benhabib, during the past two decades this line of development has been most evident in three areas: in the sphere of Humanitarian Interventions, concerning «the treatment by nation states of their citizens or residents»; in the sphere of Crimes against Humanity,

 16

Colombo, Alessandro (2010), Op.Cit.,p.43 (translation by the author). Benhabib, Seyla (2006a), ‘The Philosophical Foundations of Cosmopolitans Norms’, in Benhabib, Seyla (ed.) (2006b), Another Cosmopolitanism, Oxford: Oxford University Press, p.27. 18 Benhabib, Seyla (2006a), Op.Cit., pp.20 ff. 19 Benhabib, Seyla (2011), Dignity in Adversity. Human Rights in Turbulent Times, Cambridge/Malden: Polity Press, p.193. 17

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that involves relations «among enemies or opponents in nationally bounded as well as extraterritorial settings»; and ultimately in the sphere of Transnational Migrations, that, on the contrary, «pertain to the rights of individuals, not insofar as they are considered members of concrete bounded communities but insofar as they are human beings simpliciter, when they come into contact with, seek entry into, or want to become members of territorially bounded communities.» 20 Despite sometimes relevant differences, it is possible to grasp evident signs, in all three areas, of an ongoing massive transformation in the contemporary world: the emergence of a new form of «global civil society» characterized by the direct assumption of responsibility for the safeguarding of elementary human rights and hence able to promote the gradual cosmopolitanization of international politics. Actually, as Benhabib reminds us: cosmopolitan norms of justice, whatever the conditions of their legal origination, accrue to individuals as moral and legal persons in a worldwide civil society. Even if cosmopolitan norms arise through treaty like obligations, such as the UN Charter can be considered to be for the signatory states, their peculiarity is that they endow individuals rather than states and their agents with certain rights and claims. This is the uniqueness of the many human rights agreements signed since World War II. They signal an eventual transition from a model of international law based on treaties among states to cosmopolitan law understood as international public law that binds and bends the will of sovereign nations.21

All things considered, especially the area of humanitarian intervention – in the peculiar military form it has taken since the early 1990s22 – can account for the explosive impact produced by this kind of approach on the traditional foundation of the international order. In such a context of actions, the accepted acknowledgment of a sphere of inviolable human prerogatives has become – thanks partly to the enhanced performativity of the language of human rights – the starting point for articulating a new and ambivalent model legitimizing the use of physical force through the systematic questioning of the traditional category framework of inter-state relations. Rejecting the rigid classification of the realm of military actions set out in the UN Charter – acts of aggression, acts of self-defense,

 20

Benhabib, Seyla (2006a), Op.Cit., pp.29 ff. Ibid., p.16. 22 Defarges, Philippe Moreau (2006), Droits d’ingérence dans le monde post-2001, Paris: Presses de la fondation Nationale des Sciences Politiques. 21

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enforcement acts authorized by the UN Security Council 23 – the supporters of this kind of intervention claim that in cases of crisis endangering the lives of many innocent people or threatening their welfare, each state has the right – and according to some, the duty – to resort to force, including unilateral military initiatives on foreign soil, in order to restore the conditions for peaceful and orderly coexistence, if necessary against the will of those in power – a condition which is not codified by international law, but based on the most profound principles of a true global ethics,24 equally binding on all men by virtue of their common humanity. As explained by Terry Nardin, one of the most convinced supporters of the legitimacy of such actions: humanitarian intervention is a response to grave human rights violations, and the most basic human rights are universal moral rights – rights, in other words, that rest on the principles of common morality. (…) Common morality forbids us to use other human beings coercively to achieve our ends. Using force, without good reason, violates the principle of respect. This explains not only why murder and slavery are wrong but also why self-defense is morally justifiable. But common morality does not limit the use of force to self-defense. It also permits us to defend the rights of others when those rights are threatened. We are therefore justified in using force to thwart violence against other persons, provided those persons are morally “innocent "– that is, not themselves engaged in unjust violence. Using force to resist those who attack the innocent does not violate the attackers' rights as free persons because they have, by their own actions, lost the moral right to act as they choose. It is even permitted to kill attackers, if necessary, to protect their victims. We are justified in using as much force as is needed to thwart the attack, but not more – bearing in mind that precise calculations about such matters are impossible.25

This long quotation demonstrates the level of normative elaboration reached by the supporters of “humanitarian intervention” in the current debate on the issue. Within this concept of common human morality as “rights-based”, the commitment towards intervention in defense of the victims of extreme forms of violence and oppression takes on a particular

 23

Farer, Tom J. (2003), ‘Humanitarian Intervention before and after 9/11: legality and legitimacy’, in Holzgrefe, J.L. & Keohane, R. O. (ed.), Humanitarian Intervention. Ethical, Legal and Political Dilemmas, Cambridge: Cambridge University Press, p.58. 24 Heater, Derek (2002), World Citizenship.Cosmopolitan Thinking and its Opponents, London-New York: Continuum, pp.71 ff. 25 Nardin, Terry (2002), ‘The Moral Basis of Humanitarian Intervention’, in Ethics & International Affairs, n. 2, pp.57 ss., in part. pp.64 ff.

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Kantian trait, in some way accounting for the goals at stake at this level of moral discourse: forcing Kant's original theoretical system considerably, Nardin deduces the legitimacy of humanitarian intervention directly from the «principle of respect» stated in the Grundlegung der Metaphysik der Sitten, even suggesting that this principle may be considered a crucial, albeit not exclusive, point of reference for establishing new universal ethics in international relations.26 However, the Kantian ethical code is only one of the normative models considered in the recent debate on the «moral foundations» of humanitarian intervention: within this sphere of discourse, constructive issues pertinent to very different founding traditions of moral Western thought can be found, such as the Stoic concept of oikeiosis27 or Christian natural law theory,28 and lines of thought deriving from more heterodox

 26

Nardin, Terry (2002), Op.Cit., p.64: «The foundation of common morality, then, is the principle that each person must respect the agency of every other. This is Kant's "principle of respect”. The more specific precepts of common morality are interpretations of this basic principle. We must distinguish common morality from the mores of particular communities. Its principles constitute a common moral world in which human beings have rights not as members of this or that community but as member of the human community. Common morality rests neither on positive law nor on custom. It is, rather, the product of critical reflection on laws and customs, and in this sense may be said to be known by "reason”. Its principles provide a standard "by which everybody ought to live, no matter what the mores of his neighbors might be”…» 27 Nussbaum, Martha (2010), ‘Duties of Justice, Duties of Material Aid: Cicero’s Problematic Legacy’, in Stoicism. Traditions and Transformations, Strange, S.K. & and Zupko, J. (ed.), Cambridge: Cambridge University Press, pp.214 ff., in part. pp.234 and ff. 28 See Joseph Boyle, Joseph (1992), ‘Natural Law and International Ethics’, in Nardin, T. & Mapel, D.R. (ed.), Traditions of International Ethics, Cambridge: Cambridge University Press, pp.112 ff., in part. p.123: «… Both the principles and the most basic norms of common morality provide directions for the treatment of all human beings. This idea runs very deep within common morality. All humans are made in God’s image; all share a common human nature; the Golden Rule guides relations with any human being who may be affected by our actions; and anyone can, in the relevant circumstances, be one’s neighbor. (…) The principles of common morality plainly imply a more positive concern for the welfare of people outside one's own community. For the general positive obligations to others included within common morality are not limited to people with whom we are bound in community by contract, political ties, or common locale. We are obliged to help whoever we can (when this is compatible with fulfilling other duties) and to be ready to form and promote decent relations with them. (…) This general duty to

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directions of development within the current debate, such as the feminist ethic of care.29 Whichever the founding framework adopted, the common starting point of this approach is the drastic questioning of the «particularistic principle of State sovereignty and of the inviolability of its borders», at the basis of the formation of the system of modern international relations, from the Peace of Westphalia to the establishment of the United Nations:30 «the sovereign state’s once indisputable claim to be the principal locus of power and loyalty» and the parallel claim to «an unfettered discretion with respect to producing and distributing public Goods and determining the rights and obligations of persons living within the state’s recognized frontiers.»31 As surprising as it may seem, this innovative re-interpretation of the foundations of the system of international relations represents, moreover, an acknowledged and shared point of reference even within the limited sphere of global political players. In fact, it is sufficient to glance at the main strategic and diplomatic documents produced during the last two decades to understand the level of radicalism reached – at least on paper – by the «cosmopolitan turn» in contemporary politics: as Alex J. Bellamy points out, it is indeed a widely shared assumption of “international society” that it is no longer possible to conceive of the principle of sovereignty as a shield behind which governments «can claim to be free to engage in activities that pose enormous threats to their citizens, neighbors, or the rest of the international community.»32 The traditional

 help others is the most basic ground within common morality for interference in the internal affairs of one nation by outsiders, including other nations and international bodies. The specific implications of the general duty to provide help depend on a number of highly contingent factors, including respect for a nation's sovereignty and awareness of the limits of outside aid. But the normative ground is there, and it is not merely permissive; in extreme circumstances it can justify the use of force.» 29 Robinson, Fiona (2009), ‘Feminist Ethics in World Politics’, in The Ashgate Research Companion to Ethics and International Relations, Hayden, P.(ed.), Farnham/Burlington: Ashgate, pp.79 ff., in part. p.88; Idem (2009), ‘Feminist Ethics and Global Security Governance’, in Ethics and Global Governance, Franceschet, A. (ed.), Boulder: Lynne Rienner. 30 Zolo,Danilo (2007), La giustizia dei vincitori, Roma-Bari: Laterza, pp.60 ff. 31 Farer, Tom J. (2003), Op.Cit., p.55. 32 United States Department of Defense (2009), The National defense strategy of the United States of America, March 2005, in Bellamy, A.J. (ed.), Responsibility to protect, Cambridge: Polity Press, p.24. See also Tony Blair, Doctrine of the International Community (1999): «The most pressing foreign policy problem we

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closed model of sovereignty, protected in its sphere of «internal jurisdiction» 33 from interference by other subjects, seems to have been replaced by an open model of sovereignty, exposed to surveillance and judgment by the international community even in the exercise of its fundamental legal and institutional prerogatives. A shift explicitly articulated in the well-known report of the International Commission on Intervention and State Sovereignty, established by the Government of Canada in response to promptings by the UN General Secretary Kofi Annan, in the form of a transition «from sovereignty as control to sovereignty as responsibility in both internal functions and external duties»: Thinking of sovereignty as responsibility, in a way that is being increasingly recognized in state practice, has a threefold significance. First, it implies that the state authorities are responsible for the functions of protecting the safety and lives of citizens and promotion of their welfare. Secondly, it suggests that the national political authorities are responsible to the citizens internally and to the international community through the UN. And thirdly, it means that the agents of state are responsible for their actions; that is to say, they are accountable for their acts of commission and omission. The case for thinking of sovereignty in these terms is strengthened by the ever-increasing impact of international human rights norms, and the increasing impact in international discourse of the concept of human security.34

3. Paradoxes of humanitarian intervention It is no surprise, therefore, than in the recent international-law debate on this issue, the most radical supporters of a cosmopolitical approach to the safeguarding of human rights – Anne Orford’s «new human rights

 face is to identify the circumstances in which we should get actively involved in other people’s conflicts. Non-interference has long been considered an important principle of international order. And it is one we would want to jettison too readily. (…) But the principle of non-interference must be qualified in important respects. Acts of genocide can never be a purely internal matter» (Ibid., p.25). 33 Charter of United Nations, art. 2 (7): «Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.» 34 International Commission on Intervention and State Sovereignty (2001), The Responsibility to Protect, Ottawa: International development Research Centre, p.13.

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warriors»35 – have celebrated the emergence of a new and more «muscular» form of humanitarian intervention as the beginning of a «third age of human rights», «the age of human rights enforcement.»36 According to these authors, it is here that the most significant change in the movement for human rights can be seen after the turn of the century – specifically, its ability to be challenging: The past has been a matter of pleading with tyrants, writing letters and sending missions to beg them not to act cruelly. That will not be necessary if there is a possibility that they can be deterred, by threats of humanitarian or UN intervention or with the nemesis in the form of the international Criminal Court. Human rights discourse will in the future be less pious and less ‘politically correct’. We will call a savage a savage, whether or not he or she is black.37

In this debate, the theoretical and practical sphere of the new «humanitarian interventionism» has stepped forward as the practical context of a new form of cosmopolitical responsibility, which dissolves «the boundary between the internal and the external and questions the legitimacy of state action both internally and in external relations between states.» 38 As Benhabib writes, despite their controversial interpretation, the different humanitarian actions carried out in the past twenty years with or without the endorsement of the UN, have in fact demonstrated growing consent to the idea that «the sovereignty of the state to dispose of the life, liberty, and property of its citizens or residents is not unconditional or unlimited.» 39 This process appears to have found «a turning point for norm crystallization» 40 in the United Nations 2005 World Summit Outcome Document, which sets some principles that should represent a point of no return along the path toward a new and more advanced form of international order: specifically, the acknowledgment that:

 35

Orford, Anne (2003), Reading Humanitarian Intervention. Human Rights and the Use of Force in International Law, Cambridge: Cambridge University Press, p.6. 36 Robertson, Geoffrey (1999), Crimes against Humanity. The Struggle for Global Justice, New York: New Press. 37 Ibid, p.453. 38 Beck, Ulrich (2006), Op.Cit., p.146 39 Benhabib, Seyla (2006a), Op.Cit., p.29. 40 Serrano, Monica (2011), ‘The Responsibility to protect and its Critics: Explaining the Consensus’, in Global Responsibility to Protect, n. 3, pp.1-13, in part. p.3.

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Defense or Domination? all states have a responsibility to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity; that the UN’s members have a duty to assist states to fulfill their responsibility and that when a state manifestly fails in its responsibility, external actors should take ‘timely and decisive’ action to protect populations from these four crimes in a manner consistent with the UN Charter.41

However not everyone today appears to be willing to endorse the reassuring representation of the new political order of global society, depicted, more or less emphatically, by the most radical supporters of the «humanitarian turn» in international politics. According to the strictest critics of such an approach, if taken seriously at all, the humanitarian perspective would require the current international system, focused on the particularism of inter-governmental relations, to give way to a true «global humanitarian regime», «a politically unified civitas maxima»

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Bellamy, Alex, J. & Williams, Paul (2012), ‘On the limits of moral hazard: The ‘responsibility to protect’, armed conflict and mass atrocities’, in European Journal of International Relations, 18, pp.531 ff. Cf. UN GAOR, Sixtieth Session, 8th Plen. Mtg., UN Doc. A/RES/60/1, paras. 138 and 139 (October 24, 2005), http://daccessdds.un.org/doc/UNDOC/GEN/N05/487/60/PDF/N0548760. OpenElement: «138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help states to exercise this responsibility and support the United Nations in establishing an early warning capability. 139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping states build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.»

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able to grant effective international legal status to all human beings, and not only to States.42 In a context of international relations still focused on state particularism, it remains subject to the dynamics of decision-making by single governments, and ends up coexisting with more or less crude forms of «interest-based politics.»43 Moreover, because of procedurally unmediated relations between the exercise of force and the principles of the justice envisaged, this «humanitarian realpolitik» 44 appears to be especially susceptible to the «spectacular» dynamics of power redistribution in political decisionmaking, sparked internationally after the collapse of the bipolar world order. As Alessandro Colombo points out, we shouldn’t forget the very particular role played on the global scene by the United States «superpower», the only actor who truly possesses «high potential in every significant dimension of international relations», starting with military might.45 Neither should we forget the gradual «subtraction of shares of sovereignty from potential enemies» carried out partly as a consequence of the shock of 9/11, by the American superpower and its allies, with the construction of an asymmetrical international relations framework of principles: Freedom of action of the strongest on the one hand, and the ban imposed on its enemies to gain effective means of dissuasion (weapons of mass destruction): the territorial closure of the first, against the territorial exposure of the latter to the right of intervention, up to the explicit prediction of a regime change; the promotion of a new international democratic order, and, at the same time, the restriction of the sphere of rights of an increasing number of state (Iran, Syria, etc.) and non-state actors (Hezbollah, Hamas, etc.) including the elementary rights of force and diplomacy: the right to self-defense and to participate to the negotiations.46

On this basis, it is unsurprising that some identify in the unconditioned «ethics of humanness», evoked by supporters of humanitarian

 42

Zolo, Danilo (2007), La giustizia dei vincitori, Rome-Bari: Laterza, 2007. Köchler, Hans (2001), The Concept of Humanitarian Intervention in the Context of Modern Power Politics. Is the Revival of the Doctrine of “Just War” Compatible with the International Rule of Law?, Vienna: IPO, pp.53 ff. 44 Ibid., p.40. 45 Colombo, Alessandro (2010), Op.Cit., p.25. 46 Ibid. 43

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interventionism the most characteristic ideological and discursive superstructure of a «new imperial order», emerging from the ruins of the traditional international society of States: in other words, the privileged basis for legitimacy of «a normative imperial power», «not compatible with the general character of law, nor with the judicial equality of subjects of the international system.»47 In this interpretation, it is by evoking the defense of human values that a consolidated system of equal legal and diplomatic relations has been slowly replaced «in a quasi-religious manner», 48 by a new unilateral hierarchy of command based on «a cosmopolitan monopoly (…) on morality, law and violence.» 49 A transition that, as pointed out above, involves an openly unequal and even «racist»50 approach towards most States, opening up again to the dualistic and asymmetrical approach typical of «colonial humanitarianism»:51 In the old literature of empire, humanitarianism was invoked to justify the supposed responsibility of an imperial power operating at the margins of the civilized world to uphold the standards of civilized morality by suppressing cannibalism, human sacrifice, and other barbaric practices. In today's rhetoric of empire, it is the barbarity of tyranny and terrorism that threaten these standards and that must be countered, in the name of humanity, by the exercise of imperial power. In the old literature of empire, colonial rule was rationalized as providing backward peoples the benefits of civilization: public order, public health, modern communications, economic development, and eventually constitutional rule. The new literature of empire rationalizes intervention in similar terms. Most of the old justifications for empire are close to the surface in current understandings of America's mission.52

Considered from this viewpoint, the «humanitarian turn» of international post-1989 politics loses any virtue, becoming the concrete theoretical and practical scenario for the articulation of a new and at the same time old form of «military interventionism», in the service of

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Zolo, Danilo (2007), Op.Cit., pp.125 ff. Köchler, Hans (2001), Op.Cit., p.32. 49 Beck, Ulrich (2006), Op.Cit., p.143. On this issue see also Köchler, Hans (2001), Op.Cit., p.32. 50 Diana Johnstone, Diana (2001), ‘Humanitarian War: Making the Crime Fit the Punishment’, in Köchler, Hans (2001), Op.Cit., p.32.H. 51 Koselleck, Reinhart (1979), Zur historisch-politischen semantik asymmetrischer Gegenbegriffe, in Vergangene Zukunft. Zur Semantik geschichtlicher Zeiten, Frankfurt a. Main: Suhrkamp. 52 Nardin, Terry (2005), ‘Humanitarian Imperialism’, in Ethics & International Relations, 19/2, p.25. 48

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specific political and economic Western goals.53 According to the most radical critics of such a dynamic, behind «the purely humanitarian antipolitical politics of merely preventing suffering» there is in the first place the will to ensure «that the forces of the capitalist market prevail in every corner of the world (even if this means marginalizing and impoverishing parts of it)» and to manipulate «those market forces to the advantage of the most powerful capitalist economies and the United States in particular.» 54 Examined in the light of the post-Gramscian concept of hegemony, this humanitarian ideology can prove to be one of the chief means for consolidating the system of «inequitable distribution» of global resources in favor of the strong and to the detriment of the week, recently defined as the New World Order of Plunder.55 Mattei and Nader consider that the notions of “human rights” and “humanitarian intervention” are among the: key elements of a strong rhetoric of legitimization of international corporate power determining the diffusion of oppressive institutions aimed at plunder: the imperial rule of law. These notions are today “naturalized” in the global discursive practice, and are called the “Washington Consensus.” Their uncritical use produces a state of denial of the way in which the rule of law, often shielding plunder, is produced and developed by professional “consent-building” elites. The consequences of such denial are the creation of a legal landscape in which the law “naturally” gives up its role of constraining opportunistic behavior of market actors. This process results in the development of rules and institutions based on double standards that are functional for the interests of corporate capital and that dramatically enlarge inequality within society.56

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Žižek, Slavoj (2005), The Obscenity of Human Rights: Violence as Symptom, http//www.libcom.org 54 Wood, Ellen, M. (1999), ‘Kosovo and the New Imperialism’, in Monthly Review, 51/2, p.3. On the issue see also Žižek, Slavoj (1999), ‘Against the double black-mail’, in New Left Review, n. 234, p.77: « The second story concerns the flip-side of the much-praised new global ethical politics in which one is allowed to violate state sovereignty on behalf of the violation of human rights. (…) Here, of course, we enter the shady world of international capital and its strategic interests.» 55 Mattei, Ugo & Nader, Laura (2008), Plunder. When the Rule of Law is Illegal, Malden-Oxford-Victoria: Blackwell, pp.120 ff. 56 Ibid., p.143, pp.124 ff.: «In order to rise above political criticism, entering into the domain of the necessary and natural, Western interventionism, which is incapable of being asserted by ordinary legal means, has been forced to seek a number of higher justifications, such as human rights protection, so that plunder could be once more sheltered from open discussion and critique. International

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4. Cosmopolitan morality and democratic self-determination This touches on a key point in the recent debate on the new global order, i.e. the need to give an accurate account of the new relations of power which characterize the nascent «world society of individuals»..57 As has been pointed out, any thought unable to grasp, together with the processes of «cosmopolitanization» in the international political scene, the inconsistencies, the «asymmetrical traits» and the «empty spaces» produced by those processes, appears far from able to understand the concrete political structure of global society, that continues to be characterized by a mostly hierarchical dimension, and is in fact hierarchical to the «highest degree.»58 This is a context for analysis that involves delicate issues of an epistemic and category nature that cannot be dealt with through the conventional concepts of Western political theory. As has been said, «very ambivalent processes» are ongoing, involving the structural failure of the «entire modern political and legal synthesis» and its fundamental conceptual apparatus. 59 From this point of view, it is as if the «old categories of power and politics based on the State» have suddenly become «zombie categories»: they appear incapable of capturing the new actors, strategies, resources and goals, or the conflicts, paradoxes and ambivalent outcomes of the processes taking place, within the nation states as well as between them.60 Even a sketchy knowledge of the recent debate on «new military humanism»61 is enough to understand the stakes in play at this level of

 intervention is one of the most impressive political efforts of an imperialist society. As with any comparable political effort it creates tremendous distress on the law…» 57 Beck, Ulrich (2000), ‘The Cosmopolitan Perspective. Sociology of the Second Age of Modernity’, in British Journal of Sociology, 51/1, p.80. 58 Colombo, Alessandro (2010), Op.Cit., p.19. On this subject, see Beck, Ulrich (2002), Macht und Gegenmacht im globalen Zeitalter. Neue weltpolitische Ökonomie, Frankfurt a. M: Suhrkamp. 59 Colombo, Alessandro (2010), Op.Cit.,p.55. 60 U. Beck, Ulrich (2001), ‘Redefining Power in the Global Age: Eight Theses’, in Dissent, fall. 61 Chomsky, Noam (1999), The New Military Humanism: Lessons from Kosovo, London: Pluto.

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theoretical problematization. In the wake of the centrality acquired in the field of internationalist studies by Carl Schmitt's62 anti-normative concept of the «political», the critique of the «humanitarian turn» in international politics has led – apart from an explicit distancing from the demand for the moral re-foundation of international relations – to the re-introduction of the basic founding assumptions of the traditional Westphalian system, revisited from time to time in a national-democratic or even post-colonial key. 63 According to supporters of «statist anti-cosmopolitanism», 64 the conservation of a “pluralistic” model of international society, based on the general acknowledgment of an intangible sphere of territorial control and the principle of non-interference, seems to constitute, indeed, a necessary prerequisite for the exercise of the democratic rights to self-government of the citizens of all states, including weaker and peripheral nations.65 On the contrary, the imposition of a «cosmopolitan regime » protecting human rights would free the path to a gradual emptying of territorial forms of representative democracy – the only feasible form in a world of nation states – prefiguring the institution of a global “directory”, removed from any form of control from below. As David Chandler puts it: the new rights of cosmopolitan citizens, additional to their territorial citizenship rights, are ones which they cannot act on or exercises themselves, and in this crucial respect the new rights are highly conditional. While there may be a duty to protect the new rights of the cosmopolitan citizen the cosmopolitan framework provides no mechanism of accountability to give content to these rights. There is no link between



62 Chandler, David (2008), ‘The Revival of Carl Schmitt in International Relations: The Last Refuge of Critical Theorists?’, Millennium: Journal of International Studies, n. 1, pp.27-48. On the issue see also McCormick, John (1998), ‘Political Theory and Political Theology: The Second Wave of Carl Schmitt’, Political Theory, n. 6, pp.830-854; Galli, Carlo (2009), ‘Schmitt e l’età gobale’, in Idem, Lo sguardo di Janus. Saggi su Carl Schmitt, Bologna: il Mulino, pp.129-172-. 63 Welsch, Jennifer M. (2004), ‘Taking Consequences Seriously: Objections to Humanitarian Intervention’, in Welsch, J. M. (ed.) Humanitarian Intervention and International Relations, Oxford: Oxford UP, pp.64 ff. See also Ayoob, Mohammed (2002), ‘Inequality and Theorizing in International Relations: The Case for Subaltern Realism’, International Studies Review, Vol. 4 (3), pp.27-48. 64 Devetak, Richard (2007), ‘Between Kant and Pufendorf. Humanitarian intervention, statist anti-cosmopolitanism and critical international theory’, in Review of International Studies, n. 33, pp.151 ff. 65 Bellamy, Alex, J. (2003), ‘Power, rules and argument: new approaches to humanitarian intervention’, Australian Journal of International Affairs, n. 3, pp.499-512.

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In this scenario, the defense of democratic values and political selfdetermination is achieved through the preservation of the «old rights» of territorial sovereignty:67 beyond this sphere, in fact, it seems to outline the unsettling perspective of a world of rights without citizenship, prefigured in some way by the ghostly inconsistency of the «universal human subject of cosmopolitan rights.» 68 According to this approach, embracing the perspective of humanitarian universalism means questioning the segmented spatial structure of the “Westphalian” system in its totality, and with it the set of principles, values and practices of self-government within it. On the other hand, the effort to maintain this heritage necessarily involves giving up any claim to control from the outside of the forms in which state sovereignty is exercised in practice. Supporters of «statist anti-cosmopolitanism» are therefore forced into silence even in the face of the most extreme cases of State violence (or violence tolerated by the State): hence the victims of that violence become «silent reminders of a politics that cannot countenance rights other than those attaching to sovereign states.»69 It is perhaps unnecessary to remark on the questionable logic that governs this kind of approach: what we find here is nothing other than the attempt to think about the complex political dynamics in global society by regurgitating the rigid oppositional setting characteristic of the early modern age, safeguarding its basic theoretical foundation: the reference to the state control of space as the «absolute principle» of politics. 70 A setting which appears to go in the direction of systematically bypassing the new epistemic and conceptual challenges posed by the decline of the traditional international order of the «society of States», keeping a safe distance from the evidently momentous fracture produced by the crisis of the theoretical and political paradigm of the early modern age.

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Chandler, David (2003), ‘New Rights for Old? Cosmopolitan Citizenship and the critique of State Sovereignty’, «Political Studies», Vol. 51, pp.332-349, in part. p.342 s.; Idem (2002), From Kosovo to Kabul, London: Pluto, p.119 ff. 67 C. Mouffe, Chantal (2005), On the Political, London: Routledge. 68 Chandler, David (2003), Op.Cit., p.342. 69 Ibid., p.168. 70 Devetak, Richard (2007), Op.Cit., p.160.

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Therefore, in response to the ruinous – and clearly embarrassing – outcomes of this extremist “anti-cosmopolitical” line of thought, in the recent debate on the dilemmas of humanitarian intervention a more articulate conceptual approach has taken shape, centered on the systematic questioning of the crystallized “disjunctive” logic which is characteristic of modern political discourse. According to supporters of this perspective, the complex judicial and political issues at the center of debate require a new and more flexible categorical framework, to appropriately account for the multiple material and intellectual dynamics, traditionally approximated through the semantics of national sovereignty. The challenge we face involves the re-conceptualization of the State «as a political unit that can maintain internal order while being able to engage in international cooperation, without claiming exclusive rights, or having the “winner-take-all” quality, traditionally associated with sovereignty», a goal that aims and claims to go definitively beyond the «monistic» and «absolute» conception of sovereignty in the «Westphalia model», in favor of a «modular», «gradual» and «relational» characterization of the same concept.71 Attempts have also been made to shape the universalistic issues brought up by the «dominant schools of contemporary cosmopolitanism» in a more or less democratic and participative key, beginning with a critical examination of the overall categorical framework at their base.72 According to some leading figures in the recent debate, the solution to the crucial political dilemmas of the global order must begin by addressing the question of «what sort of cosmopolitanism is required for democracy under the current circumstances of politics.»73 For many, the answer to this question must be sought via a rigorous rethinking of the abstract reference to humanity, a concept in which the supporters of contemporary



71 Keohane, Robert, O. (2003), ‘Political authority after intervention: gradations in sovereignty’, in Holzgrefe, J.L. & Keohane, R. O. (ed.), Op.Cit.,pp.277 ss. See also Stephen D. Krasner, Stephen D. (1999), Sovereignty: Organized Hypocrisy, Princeton: Princeton University Press; Lugo, Luis , E. (ed.) (1996), Sovereignity at the crossroads? Morality and international politics in the post-Cold War era, New York-London: Lenham-Boulder; Jacobsen, T., Sampford, Ch. & Thakur, R. (ed.) (2008), Re-envisioning Sovereignty. The End of Westphalia?, Aldershot: Ashgate. 72 Moses, Jeremy (2007). ‘‘We are the World’: Cosmopolitanism, Neoconservatorism and Global Humanity’, http://ir.canterbury.ac.nz/bitstream/10092/4958/1/12610076_PIC%20Paper%2020 07%20-%20Jeremy%20Moses.pdf 73 Bohman, James (2007), Op.Cit., p.11.

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«moral cosmopolitanism» identify the starting point for the establishment of a just global order. 74 Despite the radical anti-human prejudice – «Humanität, Bestialität»75 – professed still today by many followers of Schmitt's conception of politics, supporters of this form of critical cosmopolitanism still believe it possible to think «the perspective of the generalized other» in ways that safeguard the principles of identity and democratic self-determination enshrined in modern political discourse; this is possible if the notion of “humanity” is assumed not to be an abstract normative projection of a «pre-given biological category», but as the outcome of a process of ideological-discursive construction, variably articulated on the contrasting force of a «constitutive outsider.»76 From this point of view, «to adopt the perspective of humanity» raises the question of the procedural articulation of the universalistic ideal brought forward by the supporters of moral cosmopolitanism: a process in which the concept of humanity ceases to be merely an abstract «moral property of individuals» and becomes a universal sphere of political interaction between individuals and groups, in which the «right to have rights» of all mankind can truly be acknowledged. 77 It is not possible to go into depth here regarding this particular theoretical line of thought. In working towards the conclusion, I wish only to point out its importance for conceiving of a politics finally free from the rigid internal/external dichotomy inherited from the political thought of the early modern age. In a theoretical context of this type, there appears to be no space for the metaphysical vision of popular will developed by eighteenth and nineteenth-century political theory, or for an “absolutist” conception of sovereignty, cleared from the procedural complications of «interaction, recognition and legitimation»” through which «rights, including statuary rights, are socially and historically constituted.»78 On the contrary, everything seems to move towards a pluralistic scenario of

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Moses, Jeremy (2007), Op.Cit., p.8. Cfr. Scuccimarra, Luca (2011), ‘L’eccezione umanitaria. Sovranità territoriale e diritto di intervento nel dibattito sul “new global Order’, in Le regole dell’eccezione. Un dialogo interdisciplinare a partire dalla questione del terrorismo, M. Meccarelli,M, Palchetti, P.& Sotis, C. (ed.), Macerata: EUM, pp.141-168, pp.156 ss. See also Habermas, Jürgen (1999), ‘Bestialität und Humanität. Ein Krieg an der Grenze zwischen Recht und Moral’, Die Zeit, 29.4.1999. 76 Moses, Jeremy (2007), Op.Cit.p.7; Vincent, Andrew (2007), Op.Cit., p.114. 77 Bohman, James (2007), Op.Cit., p.102. 78 Devetak, Richard (2007), Op.Cit., p.167. 75

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identity representation, political negotiation and social practices, in which even the tie between popular sovereignty and human rights is open to new and unpredictable developments.79 As Seyla Benhabib writes, this is the first level where the decisive battle for the constitution of post-national solidarity takes place, among the challenges posed by the global era. With the awareness that the true issue at stake here is to come to a new way of thinking about the sphere of democratic self-determination, beyond the impenetrable boundaries of traditional state citizenship.80

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Reus-Smit, Christian (2001), ‘Human Rights and the Social Construction of Sovereignty’, Review of International Studies, Vol. 27(4), 519-538. 80 Cf. Benhabib, Seyla (2006a), Op.Cit., pp.45 ss.



INTEGRITY IN CONFLICT: A COSMOPOLITAN APPROACH FOR SURVIVAL LAURA WESTRA UNIVERSITY OF WINDSOR

1. Ecological Integrity: Between Ethics and Law Ecological or biological integrity originated as an ethical concept in the wake of Aldo Leopold (1949) and has been present in the law, both domestic and international, and part of public policy since its appearance in the 1972 U.S. Clean Water Act (CWA). Ecological integrity has also filtered into the language of a great number of mission and vision statements internationally, as well as being clearly present in the Great Lakes Water Quality Agreement between the United States and Canada, which was ratified in 1988. The generic concept of integrity connotes a valuable whole, the state of being whole or undiminished, unimpaired, or in perfect condition. Integrity in common usage is thus an umbrella concept that encompasses a variety of other notions. Although integrity may be developed in other contexts, wild nature provides paradigmatic examples for applied reflect and research In my work, I consistently based my argument on the scientific understanding of ecological integrity, because to accept it, as some have done, as a socially definable notion, meant to lose it as a firm point of reference. In that case, it could not be understood as a firm starting point, if it were open to a variety of opinions. I proposed the principle of integrity, as a solid principle of a new ethics,1 reaching beyond a simple environmental ethic, to a moral principle that acknowledges the primacy of a consideration for human rights and the human good, even the right to life, all must start with the protection for the habitat of mankind which

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Westra, Laura (1994), The Principle of Integrity, Lanham: Rowman Littlefield.

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also- at the same time--ensures respect for the biological integrity of all human beings. That understanding, based on science, was eventually fleshed out in its full meaning and connotations, by the members of the Global Ecological Integrity Group (GEIG), initially funded by SSHRC (1992-1999). Since then it has been meeting every year, starting with the 2000 meeting funded by NATO for a 50% Eastern Europe participation, which took place in Budapest. The final collectively agreed upon definition was published combining the work of ethicists, conservation biologists, ecologists and other scholars.2 Essentially, the Global Ecological Integrity Project (as it was known at the start), has been guided by two complementary policy imperatives: conserve integrity and live sustainably.3 I have defined sustainability as a systems capacity to retain its specific functions, that is, its critical lifesupport processes as well as its parts or components.4 The emphasis on the scientific meaning of integrity was never lost by the Group, but, after 2000, when the final definition was reached, basing ourselves primarily on the work of James Karr, and the development of his Index of Biotic Integrity,5 fidelity to the scientific consensus reached remained constant. This starting point was established against the arguments of philosophers of science, 6 but also against the practical resistance of globalised corporate interests, strongest at Great Lakes Meetings and other venues. Their mantra of “development” at all costs contradicts the

 2

Westra, L., Pimentel D. & Noss, R. F. (eds.) (2000), Ecological Integrity: Integrating Environment, Conservation and Health, Washington DC: Island Press; Definition of integrity is in Westra, L. Miller, P., Karr, J.R, Rees, W.E. & Ulanowicz, R. (2000), ‘Ecological Integrity and the Aims of the Global Integrity Project’, pp.19-41 3 Ibid., p.3 4 See Westra, Laura (1998), Living in Integrity, Lanham: Rowman Littlefield, ch.8 5 Ibid.; see Karr, James R. (1981), ‘Assessment of biotic integrity using fish communities’, Fisheries, 6(6), pp.21-27; Karr, James R. (1996), ‘Ecological Integrity and Ecological Health are not the Same’, Schulze, P.(ed.), Engineering within Ecological Constraints, Washington DC: National Academy Press, pp.97109 6 See Shrader-Frechette, Kristin & McCoy, Earl D. (1994), Method in Ecology, New York: Cambridge University Press.



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very basis of strong sustainability my Group and I have supported,7 which renders ecological integrity both hard to implement and unpopular. As well, aside from the hostile responses to the primacy of integrity on the part of others, from various standpoints, there is also the somewhat “despairing” position of one of our founding members, William Rees: Ecological footprint analysis, developed by William Rees and his students, is another important tool for diagnosing unsustainability in relation to offsite impacts. It is not enough that one’s immediate habitat or environment is stabilized... We need to ensure that the distant terrestrial and aquatic ecosystems we “appropriate” through trade and by exploitation of the global commons...also remain in a productively healthy state.8

But Rees also identifies a further grave difficulty, for which we cannot blame only external factors and economic interests: our own propensity to accept “social myths”, while totally ignoring the “ecological reality that surrounds us”, which makes us prey to “a collection of shared illusions”.9 Thus, one of the foremost names in Canadian ecological economics and regional planning, William Rees, is co-author of the introductory chapter of a law textbook currently used to teach environmental law, specific to Canada, something that would not likely be found in the US, for instance. Another unique Canadian trait, as we shall see, is the frequent reference one finds in law to Canadian First Nations, particularly in legal scholarly work regarding the environment. At any rate, in 1998 I proposed eight “secondary order principles” (SOPs) to supplement the principle of integrity and to expand on it, attempting a response to the question: how can we conserve integrity and live sustainably, with concern for environmental justice and the rights of those living in the third world? The necessary step from theory to public policy suggested these principles for practical guidance:

 7

Bosselmann, Klaus (2008), The Principle of Sustainability, Aldershot: Ashgate. Westra, L. Miller, P., Karr, J.R, Rees, W.E. & Ulanowicz, R. (2000), Op.Cit., p.32; See also Wackernagel, Mathis and Rees, William (1996), Our Ecological Footprint, Gabriola BC: New society Publishers. 9 Rees, William and Mickelson, Karin (2003), ‘The Environment: Ecological and Ethical Dimensions’, in Environmental Law and Policy, 3rd ed., E. Hughes, E., Lucas A-R. & Tilleman W.A. (eds.), Toronto: Emond Montgomery Publications Ltd, pp.l-40. 8



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SOP1 In order to protect and defend ecological integrity, we must start by designing policies that embrace complexity. SOP 2 We should not engage in activities that are potentially harmful to natural systems and to life in general. Judgments about potential harms should be based on the approach of “post-normal” science. SOP 3 Human activities ought to be limited by the requirements of the precautionary principle. SOP 4 We must accept an “ecological worldview” and thus reject our present “expansionist worldview” and reduce our ecological footprint. SOP 5 It is imperative to eliminate many of our present practices and choices as well as the current emphasis on “technical maximality” and on environmentally hazardous or wasteful individual rights. SOP 6 It is necessary for humanity to learn to live as in a “buffer.” Zoning restraints are necessary to impose limits both on the quality of our activities, but also on their quantity. Two corollary principles follow: (a) we must respect and protect “core”/wild areas; (b) we must view all our activities as taking place within a “buffer” zone. This is the essential meaning of the ethics of integrity. SOP 7 We must respect the individual integrity of single organisms (or micro-integrity), in order to be consistent in our respect for integrity and also to respect and protect individual functions and their contribution to the systemic whole. SOP 8 Given the uncertainties embedded in SOPs 1, 2, and 3, the “Risk Thesis” must be accepted, for uncertainties referring to the near future. We must also accept the “Potency Thesis” for the protection of individuals and whole in the long term.10

No doubt, philosophers may still be cringing at my use of an “is” to generate an “ought”. But, pace Hume, Kant’s support of the infinite value of life is closer to the approach I have been taking. Onora O’Neill discusses the difference between globalization and cosmopolitanism. While the former is primarily procedural in its structures, and primarily influenced by powerful, market-oriented powers, the latter is based primarily on substantive moral principles of justice that include but also transcend the economic realm, and rely on Kantian principles. States may or may not be fully just within their own borders but, even at best, they may well injure those outside their borders by exclusionary practices, and these are direct injuries.11 The practices we don’t accept provide indirect injuries instead. This is a form of indirect injustice as “destroying parts of

 10

Westra, Laura (1998), Op.Cit.; see also Westra, L. Miller, P., Karr, J.R, Rees, W.E. & Ulanowicz, R. (2000), Op.Cit., pp.33-34. 11 O’Neill, Onora (1996), Towards Justice and Virtue, Cambridge-NY: Cambridge University Press, p.175



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natural and manmade environments injure those whose lives depend on them”. In addition, secondly, the principles of destroying natural and manmade environments, in the sense of destroying their reproductive and regenerative powers, are not universalisable.12 Ecological and biological integrity is precisely what O’Neill terms “regenerative and reproductive powers”, or true sustainability: Environmental justice is therefore a matter of transforming natural and man-made systems only in ways that do not systematically or gratuitously destroy the reproductive and regenerative powers of the natural world, so do not inflict indirect injury.13

This is what ‘has been argued from a scientific and a moral point of view in the work of the “Global Ecological Integrity Project”, 14 and referenced and summarised here.15 In O’Neill’s terms, moral principles represent the “blueprint” and the “specifications”, which define the “product” to be eventually produced. In a similar sense, strategies based upon principles are not as such, the strategic tools to use in order to achieve just aims, but they define what forms such tools might take. O’Neill says: The move from abstract and inconclusive principles of justice toward just institutions, policies and practices is analogous to moves from design specification towards finished product.16

Cosmopolitanism based on Kantianism, can supply the principles and also the guidelines that are largely absent from even the best among the advocates of liberal democracy, as the roots of injustice are seldom sought out by these thinkers: The idea that our economic policies and the global economic institutions we impose make us causally and morally responsible for the perpetuation

 12

Ibid., p.176 Ibid., p.177 14 Westra, L., Pimentel D. & Noss, R. F. (eds.) (2000), Op.Cit.; Karr, James R. (2000), ‘Health, integrity, and biological assessment: The importance of whole things’. Pages 209-226 in Westra, L., Pimentel D. & Noss, R. F. (eds.) (2000), Op.Cit.; Noss and Cooperrider 1994; Westra, Laura (1998), Op.Cit. 15 Westra, L., Pimentel D. & Noss, R. F. (eds.) (2000), Op.Cit., Chapter 2 and Chapter 8 16 O’Neill, Onora (1996), Op.Cit., p.181. 13



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and even aggravation of world hunger, by contrast, is an idea rarely taken seriously by established intellectuals and politicians in the developed world.17

O’Neill’s focus is on the role of conservation and respect for natural systems, as she acknowledges the interface between these and human rights. Following along these lines, we can add the insights Alan Gewirth proposes. The foundational arguments proposed by Alan Gewirth help to shed light on that basic connection between humans and their habitats. Gewirth argues that human rights are not based primarily on human dignity,18 but that this Kantian principle is only partially right. He prefers to base “human rights on the necessary conditions of human action”, 19 as morality is intended to give rise to moral action. Gewirth adds that “human rights are the equivalent to “natural “rights, in that they pertain to all humans by virtue of their nature as actual or prospective agents”.20 He cites five reasons in support of his claim: 1) “the supreme importance, of the conditions of human actions” (and we will return to this point below); 2) action is “the common subject matter of all moralities”; 3)”action” is more specific and less vague than “dignity” or “flourishing”; 4) thus “action” ultimately secures “fundamental moral status” for persons; 5) “action’s necessary conditions provide justification for human rights - as every agent must hold that he has a right to freedom and well-being as the necessary conditions of his actions”.21

Beyleveld and Brownsword argue that the “basic” or “generic needs” that represent the preconditions of all action including moral action are “freedom or voluntariness” and “well-being or purposiveness”, where the former are procedural and the latter “substantive”, 22 and they view freedom as instrumental to well-being. I want to propose inverting this order. Life, health and the mental ability to comprehend and choose

 17

Pogge Thomas (2001), ‘Priorities of Global Justice’, Metaphilosophy, 32, 1/ 2, pp.1-24, p.15 18 Gewirth, Alan (1982), Human Rights: Essays on Justification and Applications, Chicago: The University of Chicago Press. 19 Ibid., p.5. 20 Ibid., p.7. 21 Ibid., p.5. 22 Beyleveld, Deryck & Brownsword, Roger (2001), Human Dignity in Bioethics and Biolaw, Oxford: Oxford University Press, p.71.



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precede the exercise of voluntariness and are not only necessary for it, but sufficient, when all these conditions are in fact present. In essence, this has been the argument of the previous section: “basic rights”,23 represent the minimum all humans are entitled to, and they are prior to all other rights, both conceptually and temporally. For Gewirth as well, life and the capacities named above can be “threatened or interfered with”.24 Thus to say we have rights is to say equally that the preconditions of these rights represent something we are entitled to have not only in morality but also in the law. In other words any legal instrument that supports the existence of human rights, ipso facto ought to proclaim the requirement that their preconditions be equally supported and respected. Some argue that the dignity of human beings is only partially the ground of human rights and that dignity itself is based on agency, still the argument allows the introduction of at least a further point in favor of extending human rights to life and health. The introduction of “preconditions” means the introduction of conditions that are not only conceptually but temporally prior to agency, hence the protection of these pre-conditions entails the acceptance of potential consequences in the protection of agency. Thus, not only does the scientific approach and the ensuing definition of integrity foster and support the interface between ecological integrity and human rights, but that connection may also be found in the thought of moral philosophers, although the explicit reference to ecological integrity, a recent scientific concept, is clearly missing. However, the most significant aspect of ecological integrity relating to Canada can be found in the multiple areas where biological or ecological integrity figure prominently in the law. It is present in the Great Lakes Water Quality Agreement (1978, rat. 1988). It is sad to acknowledge that its mandates, however, are only paper tigers, as they are largely ignored in a series of annual or biennial meetings, where a minor advancement is described as a great success, while, except for the notable cleanup of Lake Erie, for the rest, it is mostly business as usual.

 23

Shue, Henry (1980), Basic Rights, Princeton> Princeton University Press. Beyleveld, Deryck & Brownsword, Roger (2001), Op.Cit., note 27, p.70; Gewirth, Alan (1982), Op.Cit., note 23, p.54. 24



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In contrast, there are two other areas of law where ecological integrity or its equivalent takes center stage, at least on paper: first, the environmental legal regimes regulating Canadian parks, and second, the extensive jurisprudence past and present regarding the rights of First Nations (FNs). The role of ecological integrity in Canadian law is explained by Shaun Fluker: ...human activity necessarily impairs ecological integrity and thus paradigm ecological integrity is found ecosystems protected from human disturbance...It thus comes as little surprise that the norm of ecological integrity figures prominently in the management of Canada’s national parks…25

After a study mandated by the Minister of Canadian Heritage,26 the appointed scientists confirmed what Canadians know well, especially our environmentalists, that is, that ecological integrity was not central to park management, despite the stated goal of maintaining ecological integrity as its preservation was listed as the primary purpose of our parks. But such “first priority has often been lost to other interest, proposing the primacy of human activities in the parks, thus the “overriding primacy” of ecological integrity instead. 27 Hence, two sections were added to Canadian legislation in 2001: Section 2(1) – Definitions ‘ecological integrity’ means, with respect to a park, a condition that is determined to be characteristic of its natural region and likely to persist, including abiotic components and the composition and abundance of native species and biological communities, rates of change and supporting processes. Section 8(2) – Ecological Integrity Maintenance or restoration of ecological integrity, through the protection of natural resources and natural processes, shall be the first priority of the Minister when considering all aspects of the management of parks.

However strong the language of these mandates for Canadian Parks, the facts on the ground contradict the high-sounding environmental concern here expresses. Nowhere is this contradiction clearer than in the

 25

Fluker, Shaun (2013), ‘Environmental Norms in the Courtroom (The Case of Ecological Integrity in Canada’s National Parks), in Confronting Ecological and Economic Collapse, Westra, L., Taylor P.& Michelot, A. (eds.), London: Routledge/Earthscan, London, pp.21-31 p.23 26 Parks Canada, Canadian National Parks Act, SC 2000, c.32 27 Fluker, Shaun (2013), Op.Cit., p.23



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cases where tenure is a conflict between a FN’s interest, and that of a natural park which is adjacent to their lands, as was the case regarding Wood Buffalo National Park. 28 This park straddles the province of Alberta and the Northwest Territories. In 1998 the municipality of Fort Smith submitted an application to Parks Canada, “seeking approval to construct and operate a road crossing the park from east to west along the Peace River”.29 The Park had been originally set aside in 1922 to protect the Wood buffalo, and the proposed road was not found to serve any park purpose, but it would advance economic interests of others outside the Park instead. Parks Canada approved the road’s construction in 2001, with no reference to ecological integrity; and Justice Gibson ruled, in a requested judicial review, that Parks Canada’s lack of consideration for ecological integrity did not invalidate the decision. In contrast, there was at the same time another lawsuit pending, based on the legal rights of the Mikisew FN instead, which was eventually heard by the Supreme Court of Canada. In that case,30 Madam Justice Hansen stated that although ecological integrity was perhaps not the first priority in reaching a decision, reaching a balance with the interests of those living near the Park was paramount. Hence the importance of the rights of FNs to aboriginal hunting and their traditional lifestyle would prevail.31 Thus despite the explicit wording added to Canadian Parks legislation, the rights of FN’s to their unspoiled habitat, thus maintaining wildlife, take precedence. In that case, the connection between the natural environment wherein they reside, and its ecological integrity, is

 28

Minister of Canadian Heritage (2001), Canadian Parks and Wilderness Society v. Canada, FCT 1123. 29 Fluker, Shaun (2013), Op.Cit., p.25. 30 Minister of Canadian Heritage (2001), Mikisew Cree First Nation v. Canada, FCT 1426. 31 Canada’s Constitution Act, 1982, c.ll, s.35(1), states; “The existing aboriginal and Treaty rights of the aboriginal peoples of Acanda are here recognized and defended”



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inescapably tied to their cultural integrity, their rights to their religious practices and, in general, their traditional lifestyle.32 In conclusion, whether explicitly cited or not, ecological integrity is more than a foundational necessity for sound moral principles in defence of human rights, but it also acquires a specific Canadian flavour, not only because of the amount of research funded by Canadian sources (Social Sciences and Research Council of Canada, and Health Canada), but also because of the legal rights to the “commons”, 33 which is expressed in Canadian regulatory regimes, whether directly, as in Park Canada’s explicit language, or indirectly, as a substantive aspect of the rights of Canadian First Nations.

2. Integrity in Conflict As described in point 1, ecological integrity is an entirely positive concept basic to the life of both human and non-humans, present and future. Hence, if integrity is not openly accepted everywhere, if it is not incorporated openly in environmentally oriented and human rights legal instruments, as well as in national constitutions, then there must be some deep-seated conflict blocking that possibility. The question is how could the protection of eco-integrity be viewed as conflicting with other major human interests when --in contrast-- it is basic to the protection and enjoyment of all human rights. Judge Christopher Weeramantry affirmed that that was the case for “environmental rights in general, 34 and the protection of integrity is fundamental to environmental rights. In other place I have indicated the irreplaceable life-support role that integrity has in the continuation of all planetary life. 35 The biological integrity of individuals (human, non-human animals, plants) represents their health and fitness to exist and to persist through time, each according to their specific nature. The presence of all these “fit” individuals within an ecosystem. Secures its maximum ability to persist while, at the same

 32

Westra, Laura (2007), Environmental Justice and the Rights of Indigenes Peoples, London: Earthscan,, especially ch.1, 2 33 Westra, Laura (2011a), Human Rights: the commons and the Collective, Vancouver: University Press of British Columbia. 34 Gabcikovo-Nagymaros Case (1997) I.C.J. Rep.?, Judge C. Weeramantry Separate Opinion 35 Westra, Laura & Miller, Peter (2002), Just Ecological Integrity, Lanham and Oxford : Rowman & Littlefield Publishers.



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time, it remains capable of performing its support role for all individuals within it. The eventual development trajectory of each individual, when each is terminated, continues through the role it plays when it is no longer a living whole. However, any alteration of these life trajectories, to the interjection of man-made substances into the system, that is, the production and use of substances that do not have a naturally evolving role to play within the system, represents a threat, at least prima facie, and this threat may be more or less grave to the continuity and the evolution of life. Everything that is either added or removed from an original ecosystem, at least in principle, is a threat to its continued existence, in its natural, optimal form. Yet, in order to satisfy multiple human needs and wants, part of the very lifestyle of modern developed/industrial countries, depends entirely on using all manner of materials removed from natural systems near and far. That is what constitutes our ecological footprint, 36 which includes what we use, and the waste we return to the environment. All international environmental law consists in the attempts to regulate both additions and subtractions to ecosystems in a way that does not (or should not) cause the diminution, or even the elimination of the elements upon which we depend absolutely, or result in various “natural disasters”.37 However, none of the instruments designed for that purpose are actually binding, or enforceable, and their range and limits are ultimately prescribed by politicians and economists, not ecologists. Therefore our present situation that includes multiple disasters, mounting extinctions of species and--in general--the creation of conditions inimical to the continuation of life from the Arctic to Africa, demonstrates beyond a doubt not only the presence of ecological emergencies present in any part of the globe, but also the effects on humankind of this lack of legal limits and restraints, typical of the modern institutional approach to the violence perpetrated in and through the environment with impunity. This reality characterises the modern age since the emergence of the UN Declaration of Human Rights of 1948, that is, after Westphalia and

 36

Wackernagel, Mathis and Rees, William (1996), Op.Cit. Birnie, Patricia, Boyle, Alan, & Redgwell, Catherine (2009), International Law and the Environment, Oxford: Oxford University Press. 37



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the interstate system which, at this time, is also characterised by the legal take-over by corporate interests primarily but not exclusively in North America.38 This take-over includes the disregard of the relation between science and policymaking. In both environmental and health matters, state-of-the-art scientific research ought to inform public policy. In addition, the precautionary principle ought to be basic to decisions.39 Yet the ultimate arbiter, the final word in all environmental issues, is and remains the WTO, and Article XX (the Chapeau): ...which sets out the tests for the manner in which a trade measure is applied. Three standards are stated: in the Chapeau: (i) arbitrary discrimination, (ii) unjustifiable discrimination and (iii) a disguised restriction on international trade.40

Clearly the only concern is trade as substantive environmental matters are not even considered as part of the decisions reached by that body. In fact, from the standpoint of the disregard of biological integrity, the scientific Principle of Innovation is the main culprit so far. That principle is in direct opposition to the precautionary principle as, most often, the benefits of Innovation “may be overstated due to the underestimation of the cost of failure to anticipate potential harms”, particularly for risks involved in the production and use of chemicals.41 The innovation principle appears to push the limits of safety regarding the introduction of chemicals into the environment. It presumes to judge the effects of untried new substances, while the great majority of such chemicals, thus far only “judged safe” by the manufacturers themselves, have proven to be highly toxic to the environment and hazardous to public health.42

 38 Westra, Laura (2013), The Supranational Corporation, Leyden: Brill. 39 Raffensparger, Caroline and Tickner, Joel (1999), Protecting Public Health and the Environment, Washington DC: Island Press. 40 Birnie, Patricia, Boyle, Alan, & Redgwell, Catherine (2009), Op.Cit., pp.774775. 41 See http://healthandenvironmentonline.com/2014/10/29/scientific-advice-innov ation-and-the-precautionary-principle/ 42 Grandjean, Philippe (2013), Only One Chance (To Develop a Brain), Oxford: Oxford University Press; Landrigan, Philip & Etzel, Ruth (2013a), Textbook of Children’s Environmental Health, Oxford: Oxford University Press.



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What is needed is a radical revision of the regulation of pesticides and other toxic substances, to replace the presently existing “tolerance levels” based on the 1993 National Academy of Sciences (NAS),43 because the “tolerance levels” were problematic at several levels: A first problem was that they were not health-based. Instead the tolerancesetting process weighed the protection of human health against the costs of regulation to agricultural producers and tried to strike a balance between the two, often to the detriment of public health. A second, even more serious shortcoming was that the older pesticide tolerances paid no attention to the unique exposures or special susceptibilities of infants and children. They assumed that the population was comprised solely of adults and that a single tolerance level would protect people of all ages against pesticides in agricultural products.44

In contrast, ensuring safety for children also, ipso facto will protect older children and adults from toxicants. Even if the Innovation Principle is not explicitly advocated by all corporate activities, the fact that their goal is to ensure that their next project should proceed as expeditiously as possible, without “red tape” or with only minimal or non-existent external restraints, implies that that principle is implicitly present. The result? Some industrial chemicals, pesticides, pharmaceuticals, and pollutants have already caused harm from in utero exposure. Others pose live risks, especially during development. Some may trigger transgenerational effects and others have become known to act in concert with other contaminants to pose unexpected risks.45

Cranor adds: Currently the law permits toxic contamination and live risks to our children. The law is the culprit; it also holds the solution.46

Existing laws do not help to prevent harm, whether the toxicants affect the human being directly, through effluents in the air or in the water, or indirectly, as pesticides or other additives in the food system. But the

 43

National Academy of Sciences (1993), Pesticides and the Diets of Infants and Children, Washington DC: National Academic Press. 44 Landrigan, Philip and Etzel, Ruth (2013b), ‘Children's Exquisite Vulnerability to Environmental Exposures’, in Landrigan, Philip & Etzel, Ruth (2013a), Op.Cit., pp.l8-27, p.20 45 Cranor, Carl (2013), Legally Poisoned, Harvard: Harvard University Press, p.132. 46 Ibid.



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basis for all harms is that the main right belongs to corporate persons, to “innovate” until the substance is “proven guilty” through causing obvious multiple diseases or deaths. These persons maintain the right to harm humans and their habitat, as the testing is and remains in the hands of those who profit from these substances' production. So far, we have discussed a number of issues, arising from present policies and approaches, unquestioned and in fact fostered and supported by present legal systems. But it is necessary to start by examining more closely just how the disregard for integrity originates, and its clear conflict with present practices and accepted goals and lifestyles. But we also considered in turn where and how the prevailing economic trends based on capitalism and globalization impact on the support for integrity. After this brief, cursory review, it will be necessary to return in some detail to the results of ignoring the effects the neglect of integrity has on public health in general, and on human rights, specifically. The next section in this chapter will consider the effects of the ongoing legal and illegal conflicts on both biological and ecological integrity not only during the conflict, but also after it, as refugees attempt to flee the unlivable situations in which they find themselves. But, as we consider the different negative aspects of the interface between integrity and the current world order, we will also need to review whether there are any existing instruments that advocate or legislate integrity in various jurisdictions. Apparently, existing regulations are insufficient to support the most necessary life-support systems, thus we will need to reach outside the expected legal purviews in order to propose alternative venues for the defence of integrity.

Capitalism and Globalization in Conflict with the Integrity of Life- Support Systems In his book Uneven Development the geographer Neil Smith brilliantly formulates how capitalism historically has produced a particular kind of nature and space, an unevenly developed landscape that integrates poverty with wealth, industrial urbanization with agricultural diminishment. The culmination of this process is imperialism, which dominates, classifies, and



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The examination of the interface between culture and imperialism is beyond the scope of this work. But the relation between Western imperialism and others who were either colonised in earlier times or controlled and treated as inferior by the dominant cultures, is highly relevant to our topic. As Said describes it, the “massive colonial system whose economy, functioning and history had acquired the status of a virtual fact of nature”, depends upon considering other peoples and other races as “inferior, dependent, subject”. 48 The capitalist enterprise, ultimately expanded into globalization, entails domination, not only of workers, as Marx had it, but beyond them. “The ideas of Western salvation and redemption through its civilizing mission”49 always entail fostering and promoting the idea that somehow violence, directed to both the environment and to humans is somehow justified, part of the political goals of Western affluent countries, but also totally ingrained as part of the culture of those Western nations.50 The only possible way that colonization could be justified, is by originating from a deep-seated belief in the inferiority of the colonised, coupled with the equally unshakeable belief in the “mission” to bring about “the steady improvement in the condition, character and custom of primitives as a result of their contact with European civilization”.51 Whatever their language, traditions, beliefs, these “colonised” individuals were victims. But the end of colonization did not mean either the end of national greed, or that of the belief in the superiority of those who could be exploited and dominated, even as “free people” under such fictional categories as, for instance, “sustainable development”. Europe's imperialism is based on the aspect of cultural “improvement” based primarily on Eurocentrism. 52 In contrast, the whole foundation of American imperialism was and is based on the “commercial cause of

 47

Said, Edward W., (1994), Culture and Imperialism, NY: Vintage Books, Random House, p.2251; see also Smith, Neil, (l984), Uneven Development: Nature, Capital and the Production of Space, Oxford: Blackwell, p.102 48 Said, Edward W., (1994), Op.Cit., p.134 49 Ibid., p.131 50 Ibid., pp.162-3 51 Ibid., p.168 52 Ibid., pp.221-222



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empire”,53 and the claimed superiority which includes still the possession of a moral higher ground, while pursuing an unrestrained policy of plunder.54 The true goal of plunder is the exploitation of land and peoples, and for many decades they have been supported by the armed violence of American exceptionalism.55 Since colonization is now obsolete according to international law, whatever happens now must be judged from the perspective of the customary rule of internal self-determination: Internal self-determination means the right to an authentic selfgovernment, that is, the right of a people really and freely to choose its own political and economic regime --which is much more than choosing among what is an offer perhaps from one political or economic position only. It is an ongoing right.56

This rule, as Cassese points out, entails that ...any use or exploitation of natural resources of a territory under colonial domination…without a foreign acting in the exclusive interest of the people at issue, amounts to a gross infringement of the rights of people to self-determination.57

Hence this rule, derived from the indisputable authority of the former one, can be seen most clearly as the illegal ongoing occupation by the Zionist Israeli government of the Palestinian territories.58 Leaving aside for the moment the exploitation of the Palestinian peoples and territories, and the multiple human rights breaches committed by the illegal occupation and the presence of the apartheid wall, we can simply review the legal ongoing plunder and exploitation practiced by Western nations,

 53

Ibid., p.221 Mattei, Ugo &Nader, Laura (2008), Plunder, Oxford: Blackwell. 55 Westra, Laura (2014), Revolt against Authority, Leyden: Brill, Leyden, pp.118120; see also Pease, Donald, E. (2009), The New American Exceptionalism, Minneapolis: University of Minnesota Press. 56 Cassese, Antonio, (1999), Self-Determination of Peoples, Cambridge: Cambridge University Press, p.101 57 Ibid., p.100 58 Awartani, Hisham (1992), ‘Israel’s Economic Policies in the Occupied Territories: A Case for International Supervision, in Playfair, E. (ed.), International Law and the administration of Occupied Territories , Oxford: Oxford University Press,pp.399-417; Sand, Peter (2009), United States and Britain in Diego Garcia, New York: Palgrave MacMillan. 54



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determined to continue to avail themselves of former “colonies” and lands for their exclusive interests.

The Internal Self-Determination of Peoples and the Protection of Integrity ...the legal basis for the transformation of self-determination into jus cogens cannot of course be found in views--however authoritative - put forward by persons acting in their individual capacity.59

The main point is that internal self-determination may not be explicitly cited as a jus cogens norm, but it is based on customary rules although the law does not provide procedures for allowing selfdetermination,60 while several states have gone on record as supporting the status of jus cogens for self-determination.61 At any rate, economic self-determination presents a challenge for states to be free to dispose of their national resources, as a true indication of real independence. 62 In fact, scholars have understood selfdetermination in two separate ways: Thus courts and scholars came up with two· different forms of selfdetermination: internal and external. The former, potentially applies to all peoples, and signifies that all peoples should have a set of respected rights within the central states. Minority groups should have cultural, social, political rights and those rights should be respected by the mother state.63

The main case in point is the Canadian case on the Secession of Quebec 64 which distinguishes clearly between these two forms of selfdetermination as it would apply to the Quebecois.65

 59

Cassese, Antonio (1999): 135; with reference to Judge Ammoun’s sep.op.in the Barcelona Traction Case, ICJ Reports, 1970, 304,312 60 Cassese, Antonio, (1999), Op.Cit., p.131 61 Ibid., p.137 62 Ibid., p.99 63 Sterio, Milena (2010), ‘On the Right of External Self-Determination: “Selfistans”, Secession and the great Powers Rule’, Minnesota Journal of International Law, 19, pp.137-176 64 Secession of Quebec (1998), 2 S.C.R. 217. 65 See also Scharf, Michael, P.(2003), ‘Earned Sovereignty: Judicial underpinnings’, Denver Journal of International law and Policy, 31, pp.273-379, where Scharf discusses the different forms of self-determination available to people, which include autonomy, self-government, free association, and ultimately secession



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Of course, in our context, the main issue is not the relation between a people and the “mother state” only, but the interface between people and the powerful corporate persons intent on depriving them of their resources for profit, even if that includes the means for their survival. However, the latter, has not “crystallized into a rule of international customary law, applicable to and binding on all states”.66 One can understand the reason for the legal neglect of this alternative: for the most part the complicity between what Sterio terms “the Great Powers” 67 and the largest and most powerful among the MNCs is not explicit in law. As well, corporations are not legally bound by any international instrument, or directly accountable for human rights violations.68 The aspect of self-determination that supports the defence of integrity is neither explicitly recognised nor even implicitly acknowledged in any international or domestic legal instrument. This basic lacuna in fact, remains the most important reason for the lack of support for the ecological integrity of systems, and the biological integrity of individual organisms, including humans. What is at stake is the “internal self-determination” of peoples, that is, their de facto ability to “determine” their own forms of governance, including the use or disposal of their own resources. But this right, although acknowledged, is not without limits. Just as people have the right to their own resources, they also share “transborder obligations”,69 in the case of their natural ecology, to transcend their own specific interests, in the interest of the survival of global society, as in today’s world, no nation or country is “a closed system isolated from other societies” as Rawls had it instead.70

 66

Ibid., p.378 Sterio, Milena (2010), Op.Cit., p.140. 68 Ruggie, John Gerald (2007), ‘Business and Human Rights: The Evolving International Agenda’, June, Working Paper 38, John F. Kennedy School of Government, Harvard University, Cambridge, MA 69 Glenn, 2014:172 70 Rawls, John (1971), A Theory of Justice, Cambridge MA: Harvard University Press, p.8; as cited in Glenn, 2014, p.173, where Rawls’ doctrine is faulted for its basic premise, but also for the lack of an egalitarian component 67



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Hence, it appears that the very presence of global ecological integrity is necessary to counter the existence of global ecological problems. These indisputably attack the very notion of “closed societies” as survival is and remains the common concern of humanity. In contrast, although international legal instruments defend at best the rights of individuals, ecologically speaking, those rights cannot be protected without protecting the rights of the collective.71 Thus the weakened state,72 with its porous borders, is not such that the transboundary citizen remains bound and committed to her “nationality” as in older days, while the citizens now tend to be committed to obligations beyond state borders. The quest for global obligations is based on cosmopolitan theory; in fact, ecological integrity is the one moral ideal/goal that is essentially meaningless unless its application is based upon cosmopolitanism.

3. Biological/Ecological Integrity and Cosmopolitan Theory Legally or institutionally strong cosmopolitanism translates easily into notions of world or global government, an ancient idea that remains attractive to some. It is also evident in much contemporary discussion amongst lawyers who are preoccupied with the 'goal', though not yet perhaps convinced of the need for global government.73

In our case, the argument proceeds from the foundational role that the scientific understanding of biological/ecological integrity has in regard to the survival of all life, including human life. The second step is the acknowledgment that local regulatory regimes-- even it binding and resulting serious consequences, at least in principle--can be hopelessly inadequate to protect life, unless they are as global in reach, as the harms imposed by globalization are. One could argue that even local restraints on industrial pollutants and other toxic substances, even if they could be enforced, could be added to other such local ordinances, this contribute to eventual global controls.

 71

Westra, Laura (2011a), Op.Cit. Sassen, Saskia (2006), Territory, Authority, Rights: From Medieval to Global Assemblages, Princeton: Princeton University Press. 73 Glenn, Patrick (2013), The Cosmopolitan State: Oxford: Oxford University Press, p.174 72



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However, the possibility of coordinating legal instruments, pre-supposes coordinated state policies. Such coordination is reasonably present and even effective on many issues in the states of the European Union, but nowhere else, and the greatest polluting states are--in turnlargely controlled by corporate powers. Corporations today are capable of controlling directly the policies of one state at a time, at least if we exclude the powerful associations such as the World Trade Organization, for instance, that is, an organization whose apparent aim is that of supporting and protecting the common interests of corporations, and the promotion of international trade in general. The very composition of both GATT, the WTO and the related Dispute settlement bodies, precludes the serious consideration of ecological and public health issues: There is no provision in the Understanding on Rules and Procedures governing the Settlement of Disputes (DSU) for panels adjudicating environmental cases to have specific environmental expertise, in contrast with, for example, the requirement that panels adjudicating “prudential issues and other financial matters” under GATS have the necessary financial services expertise.74

In addition, the possibility of addressing conflicts between GATT and multilateral environmental agreements, which are far from being ecologically demanding or binding on state or non-state actors, remains remote. The cases/disputes that appear to seek an environmentally protective role, so far, tend to protect wildlife, and are few and far between, and they involve no major global issue, such as the protection of climate or the Arctic, which are the most grave.75 The WTO is perhaps the most powerful tribunal in the world. At the same time, it is the least transparent, and the most secretive one, as it allows no open doors and no appeals for its final decisions. That power needs to be countered by an equally powerful tribunal, one staffed primarily by biologists, ecologists, toxicologists and other scientists, as well as legal scholars. An example might be the environmental tribunal proposed by Amedeo Postiglione and the ICEF,76 as well as several other

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Birnie, Patricia, Boyle, Alan, & Redgwell, Catherine (2009), Op.Cit., p.765 For instance, see US-Import Prohibition of Certain Shrimp and Shrimp Products, WT/ DS58/R(1998); US-Restrictions on Imports of Tuna, Report of the Panel, 30 ILM (1991) 76 Postiglione, Amedeo (2010), Global Environmental Governance: The Need for an International Environmental Agency and an International Court for the Environment, Brussels: Bruylant. 75



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emerging proposals. But, most of all, it is necessary that the connection between justice and ecological integrity be made explicit in law, and protected. Thus ecointegrity should be viewed as foundational to basic human rights, and its role should be acknowledged as a primary value in international law. Yet international law has only two existing principles on which it could rely for such protection, despite its connection to the survival of life on the planet: jus cogens norms and the existence of erga omnes obligations, neither of which is often used in the courts or even explicitly connected to life-support in any way. According to the ICJ, the principles and rules concerning basic rights of the human person are “[b]y their very nature” the concern of all states and thus impose obligations erga omnes upon them. The reference to nature, as opposed to conventional obligations as the starting point, reaffirms that the “rationale for the possibility of obligations erga omnes is not to be found in extrinsic principles, such as the presumed of effective predominance of the will of the majority of states or the more powerful states over a dissenting minority, but in the universal validity of the moral values that these obligations were meant to protect.77

No matter how convincing might be the arguments of the previous sections, we are still firmly based in de lege ferenda, in what should be done, rather than what can be done right now in the courts. In addition, even if courts might be persuaded to consider such arguments in their decisions, the main problem remains: the flawed and incomplete legal instruments that do not forbid or at least work to mitigate the activities that result in harms, thus eventually may result in court cases. The main issue is the lack of connection between ecology and human rights in law; as well, human rights are mostly viewed as individual entitlements and the question of collective rights has not been seriously addressed in international law at this time. 78 In this sense, both racial discrimination and especially genocide are—almost by definition— examples of collective harms, as a person may be the target of discrimination for her race only if the race itself is considered less worthy than one’s own.

 77

Salomon, Margot (2007), Global Responsibility for Human Rights, Oxford: Oxford University Press, p.171; Ragazzi, Maurizio (1997), The concept of international obligations erga omnes, Oxford: Clarendon Press, p.466. 78 Newman, Dwight (2004), Community and Collective Rights, Oxford: Hart Publishing, p.127; Westra, Laura (2011a), Op.Cit.



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Similarly genocide, or the extermination of a “genus”, cannot be limited to one person, whatever the degree of intent or at least knowledge regarding the harmful activities is accepted. Hence the present focus on jus cogens, or universally applicable norms, and the appropriateness of erga omnes obligations, both of which were used in earlier cases. One such case is the Corfu Channel Case79 where the court referred to “general principles” and well recognised principles”, and to the “elementary considerations of humanity”.80 But the problem is that neither the “general principles” nor any “considerations of humanity” are included in binding agreements or other instruments, as they are—at best—limited to the preambular portions of these documents, so that the harms continue to be imposed as the harmful activities are not explicitly forbidden. Particularly apt is the Reservations to the Genocide Convention, where the IJC’s Advisory Opinion,81 makes clear which principles provide guidance and we will discuss some aspects of both the case and the Opinion in the next section: ...the principles underlying the Convention are principles which are recognized by civilized nations as binding on States even without any conventional obligation (1951); the rights and obligations enshrined by the Convention are rights and obligations erga omnes (1996).

Further, there is the Advisory Opinion in the Nuclear Weapons Case; and even more significant for the argument of this work, a similar approach is present, in the Advisory Opinion of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, as Salomon points out that: rules of international humanitarian law incorporate obligations which are essentially of an erga omnes character.82

More examples can be adduced but, as Cassese notes, for a State to invoke jus cogens, such State must be a party to the treaty “it intends to

 79

Corfu Channel case (Merits) United Kingdom v. Albania 1949 Corfu Channel case (Merits) United Kingdom v. Albania 1949: para.22 81 Case Concerning Application of the Convention on the Prevention and Punishment of Genocide Bosnia Herzegovina v. Yugoslavia 1996; Reservations to the Convention on the prevention and Punishment of the Crime of Genocide 1951 82 Salomon, Margot (2007): Op.Cit., p.167. 80



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have declared contrary to jus cogens”, as well as being a party to the Vienna Convention. 83 In general only exceptional circumstances will permit invoking jus cogens, which, therefore, indicates that such rules today remain in a state of “potentiality” only.84 Further, given the legal difficulties involved, any State invoking jus cogens must be prepared to “submit to arbitral or judicial determination”,85 thus rendering the final arbitration or judicial decision possibly still dependent on the same world order we are asking to alter. Yet peremptory norms are not only binding on states, but also the UNSC which should ensure that current examples of grave human rights breaches should be pursued by the international law instruments that are appropriate, but also by the UN through all its organs. Because this is not what happens today, it is vital to seek radical changes to the international legal order.

4. International Law v. Cosmopolitanism: The Need for Global Governance Conceptually cosmopolitan law should receive its own legitimacy from a worldwide legislative assembly. However, Politics does not follow a logical path and it is difficult to imagine the ICC being setup in any other way; no institutions exist for the citizens of the world, and even if they did they would not have sufficient powers to oblige the states to collaborate.86

International law should not conflict with cosmopolitanism, as it now deals with individual human rights as well as with the relationship between states, nevertheless, it does not function as it should, as Archibugi notes. In contrast, states are “united” primarily in pursuing their own interests, but, as we noted, the organizations that rule their interaction are oriented exclusively to trade and the quest for economic advancement. Thus, citing either environmental multilateral instruments, or such imprecise human rights as that to a safe environment or even to health, remains totally insufficient. The major principles discussed are not

 83

Cassese, Antonio (2005), International Law, 2nd ed., Oxford: Oxford University Press, p.204 84 Ibid. 85 Ibid., p.205. 86 Archibugi, Daniele (2008), The Global Commonwealth of Citizens: Toward Cosmopolitan Democracy, Princeton: Princeton University press, p.171



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able to substitute the present international legal instruments, presently lacking in both force and consequences for non-compliance: At any rate, the general principles and jus cogens norms are not part of binding agreements, and their explicit presence in declarations, Obiter Dicta, and Preambular Section of Treaties, indicates the main reason why radical changes are now required. Both individual governments and multiple alliances, as well as specific MNCs pursue their own interests, barely keeping within the law in most cases, and flaunting international law altogether when their only “punishment” will be –at best—the lack of approval from a powerless international community; as an example consider the legal aspects of the so-called “war on terror”, for instance, in the recent Dubai assassination, see “The Dubai Assassination and the ‘War on Terror’”,87 detailing the murder of Hamas member Mahmoud al-Mabhouh, and the “extent to which basic principles of international law have been torn up under the war on terror”.88 As far as the US government and its allies are concerned, extrajudicial executions and so-called targeted killings, now constitute a legitimate State activity and do not warrant comment, let alone condemnation.89 In contrast, Chaloka Beyani, argues for the need to strengthen States, because ...the protection of human rights is primarily a function of states.90

But, as we argued “democratic” states give primacy to their economic interest, and to the interests of industry, as long as the latter supports them and their aims. Hence, the paragraph cited at the start of this section is



87 March 2, 2010, World Socialist Website @ http://www.wsws.org/articles/2010/mar2010/paras-m02.shtml 88 March 2, 2010, World Socialist Website @ http://www.wsws.org/articles/2010/mar2010/paras-m02.shtml 89 March 2, 2010, World Socialist Website @ http://www.wsws.org/articles/2010/mar2010/paras-m02.shtml 90 Beyani, Chaloka (1999), ‘The legal premises for the international protection of human rights’ in Goodwin-Gill, G. S. and Talmon, S. (eds.), The Reality of International Law: Essays in Honour of Professor Brownlie. Oxford: Clarendon Press, pp.21-36, p.22.



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problematic: cosmopolitanism does NOT require legitimacy from a world assembly or any form of “counting of heads”. Whether arising from the Stoics, the specific version of the Roman philosopher/statesman Cicero or Immanuel Kant, cosmopolitanism depends on principles, not votes. Hence, desirable as a democratic state might be, the will of states is for the most part in direct conflict with cosmopolitanism and with the rule of law based on fundamental principles and moral values. At any rate it will not be easy to move away from a positivist approach to international law, let alone world governance, given the current weakness of the UN and the most often one-sided approach of the SC. The ICJ should have “powers of judicial review” over the Security Council, but scholarly opinion is divided on this issue, and on the “nature” of the relation between the ICJ and the SC: If what is meant is an automatic constitutional process of review with compulsory effect, both the UN Charter and the International Court are silent in that respect.91

This difficulty is one of the topics I treat specifically somewhere else. 92 Thus far, the obvious conclusion is that even the existence of democratic states and of eloquent and well-drafted constitutions is insufficient to achieve a just system of governance internationally. The power within the UN is too uneven and the political power is heavily weighted in favour of the West. But the problem is not, as some have argued, the lack of democratic states (as currently understood), or the universality of human rights promoted by the West,93 which promote unfairness and racist practices, but the lack of implementation and enforcement of these rights within the present globalised world governance.

 91

Lamb, Susan (1999), ’Legal Limits to United Nations Security Council Powers’ in Goodwin-Gill, G.S. & and Talmon, S. (eds.), Op.Cit., pp.361-388, p.363 92 Westra, Laura (2011b), Globalization, Violence and World Governance, Leyden: Brill. 93 Baxi, Upendra (1999), ‘Voices of Suffering, Fragmented Universality, and the Future of Human Rights’, in The Future of International Human Rights, Bums H. W. & Stephen P.M. (eds.), pp.101–156, New York: Transnational Publishers. 12; Higgins, Rosaline (1963), The Development of International Law through the Political Organs of the United Nations, London: Clarendon Press.



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Patrick Glenn says it well the desperate need exists for a form of governance that is based on cosmopolitanism, given the failures of existing forms of governance: National instrialization has created trans-border pollution and global ozone depletion. Liberal political economists created transborder flow of capital. Technology nationally promoted has opened transnational space to abuse, in the air and at the bottom of the seas…..We are subject to an indefinite accretion of interdependent elements and there is no one in control, or even possibly in control.94

However, the very idea of a centralised, worldwide control or power works against the acceptance of cosmopolitanism: the ideal of democratic states, governed by freely voting citizens sounds far more acceptable, despite the increasingly obvious failure of that system. Those who cannot accept the thought of world governance, even when “world law” would be based on highly desirable principles, based on the UN Charter itself--do not acknowledge that a centralised power and “control” already exists. 95 That existing and functioning central power originates from financially oriented organizations, supported by wealthy multinational corporations, discussed briefly above. 96 These associations and organizations attack ecological integrity and the biological integrity of human (and other life-forms), on one hand, and existing human rights, on the other.

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Glenn, Patrick (2013), Op.Cit., p.169 Westra, Laura (2011b), Op.Cit., Ch.1 96 Westra, Laura (2013), Op.Cit. 95





CONSTRUCTING COSMOPOLITANISM IN THE DIGITAL AGE: CHALLENGES AND PROSPECTS FRANCISCO ARENAS-DOLZ1 UNIVERSITY OF VALENCIA  Humanity ... is, after all, an interminable work of collaboration and comparison. —Pheng Cheah2

Cyberspace should serve to connect people and to collaborate beyond linguistic, national or cultural barriers. This has been called “digital cosmopolitanism”. The aim of this essay is to explore to what extent Internet communication promotes (or inhibits) cosmopolitanism. To do this, in the first part I will show how the digital media have reshaped the main challenges of democratic politics, by radically disaggregating citizens' choices (1), undermining the sovereignty of states over their own jurisdictions (2), and enhancing government ability to collect information on people anywhere (3). Although the Internet offers many tools and opportunities for cosmopolitan citizenship in the digital age, these underlying conditions are deeply challenging for democratic values. The new media environment may empower some ordinary people, but it also disempowers many and offers unprecedented influence to the small groups who control governments and companies. In the second part I will characterize the notion of “digital cosmopolitanism” (4), by showing how far the Internet has contributed to creating a common space enabling a

 1

This study is part of the FFI2012-35734 and FFI2013-47136-C2-1-P Scientific Research and Technological Development Projects funded by the Ministry Science and Innovation and the Ministry of Economy and Competitiveness of the Government of Spain, respectively. 2 Cheah, Pheng (2006), Inhuman Conditions: On Cosmopolitanism and Human Rights, Harvard Cambridge, MA: University Press.



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collective construction of knowledge (5), powered by the free software movement (6), and focused on creating a culture of generosity (7), in this way promoting volunteerism, civic engagement and democratic processes.

1. Challenges of cosmopolitanism in the digital age To write a chapter about cosmopolitanism in the digital age invites ridicule. The digital media change so rapidly that bold predictions put on paper one year can look quaint by the next. Cosmopolitanism is also changing rapidly, not only because of media and technology; in the age of globalization the notion of the modern stranger, the ascription of “rootlessness” and fluctuation of cosmopolitan habits is prevalent. It is therefore urgent to transform the way we use the Internet to promote better links between different communities. Our biggest challenge in the digital age is not access to information, but the challenge of paying attention to other cultures and learning from them. Digital media are a double-edged sword. Zuckerman opposes the great wisdom of crowds with the wisdom of the flock, to show that, in most cases, our networks connect us with people with whom we share many things— education, social status, nationality, language, etc., so that, like it or not, the world view that we create from the information flowing from them is distorted and biased. We tend to interact in social networks with people we already know, and with others that are similar to those we already know.3 This fact surprises us because if we go back to the early days of the Internet, it was considered a potentially incredibly powerful force to resolve cultural differences, bringing us all into a common space. Today the world is increasingly global, increasingly connected, there are more problems with global reach, the economy is increasingly global. But our media are less global, the world is extremely unequal, with parts that are highly connected and others that are systematically isolated. The challenge therefore is to explore the potential of the Internet to connect people and collaborate beyond linguistic, national or cultural barriers. To overcome these obstacles, we need people that build bridges

 3

Zuckerman, Ethan (2013), Rewire: Digital Cosmopolitans in the Age of Connection, New York: Norton.



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between languages and cultures, namely “xenophiles”. These are the true digital cosmopolitans. Given the human tendency to interact with people with whom we have a great deal in common (homophily), these figures can stimulate more connected global usage of the Internet, leading to a genuine “xenophily”. Not only cosmopolitanism, but democracy is also changing rapidly, and not simply because of media and technology: witness the rise of neoauthoritarian regimes in many countries 4 and the increasing economic inequality of societies.5 The question of anonymity illustrates how quickly our sense of the situation can change. Since ancient times, participants in public debates have been known by name and face, but is not always the case with message boards and blogs. Anonymity promises freedom and equality but also irresponsibility and incivility. These were prominent concerns in the literature on civil society and the Internet at the turn of our century. 6 But then Facebook built a network of 1.3 billion active users, capitalizing on an apparently irrepressible impulse to share one’s real name and appearance with “friends” whom you actually know. Instead of opting for pseudonyms, Facebook users were sharing unprecedented amounts of actual personal information within their social circles—and beyond. The handwringing shifted from concerns about anonymity to the supposed death of privacy. Another example is the rapidly changing nature of political campaigns. Podemos (“We Can”), a new Spanish party established in March 2014, disrupted the political scene when it took five seats out of 54 and 1.2 million votes (8% of the total) in the European elections in May 2014, just 100 days after its creation. With 704,585 likes on Facebook and 321,000 followers on Twitter, it has more online fans than any other Spanish political party. Is the success of the party one example of modern

 4

Ignatieff, Michael (2014), ‘Are the Authoritarians Winning?’, The New York Review of Books, July 10, http://www.nybooks.com/articles/archives/2014/jul/10/are-authoritarians-winning/ 5 Piketty, Thomas (2014), Capital in the Twenty-First Century, Cambridge, MA: Harvard University Press. 6 Naughton, John (2001), ‘Contested Space: The Internet and Global Civil Society’, in Anheier, H., Glasius, M. and Kaldor, M. (eds.), Global Civil Society,Oxford: Oxford University Press, pp.147-168.



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techno-politics. 7 The digital strategy of Podemos is turning decisionmaking into an inclusive, citizen-driven process. It used an online platform, Agora Voting, to select their Euro-MPs during the primaries, attracting 33,000 voters who were verified by text (SMS). Podemos is also working on an even more ambitious project: LaboDemo (Laboratorio Democrático), a techno-political consulting and research organization focusing on how to use Internet tools to optimize democratic processes, began to collaborate with Podemos in June 2014 on testing new apps enabling instant mass polling. These examples underline how rapidly the conversational pendulum swings. The challenges of cosmopolitanism include motivating people to hold the state accountable, achieving a reasonable degree of political equality, promoting consideration of the public good as well as self-interest, and connecting personal actions (which can be ethical and reciprocal) to largescale politics. The digital media have reshaped each of these challenges by radically disaggregating citizens’ choices, undermining state sovereignty over their own jurisdictions, and enhancing the ability of governments to collect information on people anywhere. Although the digital media offer many tools and opportunities for motivated citizens, these underlying conditions are deeply challenging for cosmopolitanism and democratic values.

I. Disaggregated choice First, the new media offer individuals an unprecedented array of choices. Making a choice by clicking, searching, or contacting someone is perhaps the most basic action we take when using a computer or mobile technology. The choice used to be whether or not to subscribe to a particular newspaper; now it is whether to read a given paragraph in a particular article in a specific publication. For an individual who wishes to participate in public life, access to countless options of news sources, organizations, and networks is empowering. But many people do not want to participate politically and, for them, choice means a complete lack of engagement. Furthermore, we can choose to consume only ideas with

 7

Gutiérrez-Rubí, Antoni (2014), Tecnopolítica. El uso y la concepción de la nuevas herramientas tecnológicas para la comunicación, la organización y la acción política colectivas, Barcelona: Bebookness.



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which we agree, thereby avoiding the stress of cognitive dissonance. Choices to filter information and ideas create cyber-balkanization.8 Traditionally, we combat the unwillingness of individuals to participate by creating and sustaining organizations enlisting those individuals, and we check factionalism by constructing representative organizations and institutions, including daily metropolitan newspapers, legislatures, and broadly-based social movements. Such organizations pose a classic problem of collective action, because they depend on individual contributions to the public good. We have been able to solve that problem under favorable conditions9, but unconstrained choice makes the challenge harder. As Lance Bennett and Alexandra Segerberg note, a framework of collective action “stresses the organizational dilemma of getting individuals to join in actions where personal participation costs may outweigh marginal gains, particularly when people can ride on the efforts of others for free.” Bennett and Segerberg suggest that we expand our framework in the digital age to encompass connective action. In connective action, “contributing to the public good becomes an act of personal expression and recognition or self-validation achieved by sharing ideas in trusted relationships. … In place of the initial collective action problem of getting the individual to contribute, the starting point of connective action assumes contribution: the self-motivated (though not necessarily self-centered) sharing of already internalized or personalized ideas, plans, images, actions, and resources with networks of others.”10 Politically oriented networks can quickly become large and powerful, especially in the new media environment. Bennett and Segerberg cite, for example, los Indignados, a movement comprising 15 million protesters in 60 Spanish cities that sprang up in 2011. The protesters kept out “political parties, unions, and other powerful political organizations: indeed, they were targeted as part of the political problem. … The most visible organization consisted of the richly layered digital and interpersonal

 8

Sunstein, Cass R. (2001), Republic.com, Princeton: Princeton University Press; Zuckerman, Ethan (2013), Op.Cit. 9 Ostrom, Elinor (1990), Governing the Commons: The Evolution of Institutions for Collective Action, Cambridge: Cambridge University Press. 10 Bennett, W. Lance and Segerberg, Alexandra (2013), The Logic Of Connective Action: Digital Media and the Personalization Of Contentious Politics, New York: Cambridge University Press, pp.27 & 36.



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communication networks centering around the media hub of Democracia real YA!.11 Bennett and Segerberg argue that connective action capitalizes on “personalization”. Individuals need not change their identities to participate in connective politics but, rather, can choose an array of issues, slogans, and network partners to express their existing personas. Personalization is another way to describe the disaggregation of choice that was a trend in the last century. In a related argument, Clay Shirky notes that, traditionally, organizations were created to reduce transaction costs. This is how Ronald Coase explains the existence of firms rather than markets in which individuals exchange labor and goods. 12 But digital media have cut transaction costs so much that it is now possible to produce goods and achieve other purposes without the need for firms or other organizations, simply through networked voluntary action.13 I agree that networks have become more important, and organizations less so, because digital media have cut transaction costs. The question is whether networks can achieve the political purposes of organizations. Political action typically provokes counter-action; politics is contentious. It is one thing to build a network of voluntary contributors to a community news portal or Wikipedia, relatively uncontroversial public goods, but quite another to “crowd-source” resistance to an organized foe. Thus, for instance, an ideologically diverse network of committed protesters brought down the corrupt government in Egypt in 2011, that network was displaced by the highly disciplined Muslim Brotherhood, which, in turn, was overthrown and persecuted by the even more highly organized Egyptian army. Narrow, factional organizations defeated broad-based and public-spirited networks. That is just one example— other cases will turn out differently—but I think it will be a lasting question whether networks can sustain themselves, create and distribute resources, and protect rights, especially in the face of disciplined

 11

Bennett, W. Lance and Segerberg, Alexandra (2012), ‘The Logic Of Connective Action: Digital Media and the Personalization Of Contentious Politics’, Information, Communication & Society, 15(5), pp.739-768. 12 Coase, Ronald (1937), “The Nature of the Firm”, Economica, 4(16), pp.386-405. 13 Shirky, Clay (2008), Here Comes Everybody. The Power of Organizing Without Organizations. New York: Penguin Press; Benkler, Yochai (2006), The Wealth of Networks: How Social Production Transforms Markets and Freedom, New Haven, Conn: Yale University Press.



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opposition. If not, the decline of organizations faced by individualized choice will harm democracy. In considering any political institution, organization, movement, or network, we might hope for four virtues (among others). The entity should be large, so that it can have influence and serve many members. It should be unified, so that it can move effectively toward a goal. It should be “deep,” causing significant changes in its own members and giving them satisfaction and meaning. And it should encompass a diversity of views, so that it can avoid narrow perspectives and factionalism. There are deep unified groups, deep diverse groups and large unified groups. But I do not believe there are any large and ideologically diverse groups like a political party with a robust internal public sphere. The digital media seem to support evanescent networks that enlist many diverse people, but these networks fade. It remains an open question whether we can sustain scale and diversity or scale and depth online.

II. Ambiguous sovereignty The dominant theory of democracy used to be the sovereignty theory by which a “people” was thought to consist of a bounded group, all of whose members had equal rights to discuss and decide the issues that came before them. Such groups could be nation-states bounded by international borders, organizations or associations; they were sovereign to the extent that they could make decisions about categories of issues. They were believed to exercise what Benjamin Constant called the “liberty of the ancients,” meaning the right “to deliberate, in a public space, about war and peace, to ratify treaties of alliance with foreigners, to vote for laws, promulgate decisions, examine the accounts, actions, and management of officials, and compel them to appear before the people as a whole, accuse, condemn or acquit.”14 Two problems arise for all such sovereign groups: 1) they may not have a legitimate moral basis to exclude outsiders from their decisions, and 2) they may not have actual control over the situations that they challenge. These problems have become more evident in a highly

 14

Constant, Benjamin (1819), De la liberté des anciens comparée à celle des modernes, http://www.panarchy.org/constant/liberte.1819.html (translated by the author).



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interconnected world. A traditional justification for the sovereignty theory presumed that nation states could safeguard the interests of their members without impinging frequently on others. But, as Archon Fung writes, “If there once was a time when the laws of a nation-state could adequately protect the fundamental interests of its citizens, many argue that such time is past” (Fung 2009). One factor is the increasingly privileged position of business at a time when digital networks are making capital and information globally mobile even though people remain relatively stationary. Fung and others argue that we should shift from a sovereignty theory to a “theory of affected interests”, or at least add the latter to our understanding of democracy. According to a theory of affected interests, a democracy is not a group of people who constitute a fixed polity that has a right to decide on everything that comes before it. Rather, each person has a potentially unique set of interests and a right to be consulted on all the decisions that affect those interests. Fung proposes as the basic democratic principle that “An individual should be able to influence an organization if and only if that organization makes decisions that regularly or deeply affect that individual’s important interests.”15 The world becomes more democratic to the extent that each person has influence over the various overlapping organizations that affect him or her. Empirically, this seems to be one direction politics is taking in our digitally enabled, global world. Social movements now draw people from a range of political jurisdictions who share a common interest. Movements target the appropriate organizations, which may be governments, corporations, or NGOs. They work as networks rather than institutions: people who share interests connect up to protest, boycott, or otherwise confront organizations. However, we should consider what would be lost if the sovereignty theory gave way entirely to a theory of affected interests. Constant was speaking for a long line of civic republican theorists who envisioned citizens as groups of people who do not assess their individual interests in an ad hoc way to decide what affects them. Rather, they take responsibility for forming opinions about all matters that involve the

 15

Fung, Archon (2009), ‘The Principle of Affected Interests: An Interpretation and Defense’, in Nagel, J. and Smith, R., (eds.), Representation: Elections and Beyond, Philadelphia: University of Pennsylvania Press, pp.236-68.



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group, giving at least some attention to abstract principles of justice, not only interests. Because they are responsible for considering a wide range of issues, they can weigh conflicting claims. So far, the democratic nation state has provided the main venue for this kind of citizenship.It has the two limitations named above: it may not have legitimate reasons to exclude outsiders, and it may not be able to address all of its problems. Therefore, the state should not be the only venue for democracy. Yet the democratic state is an achievement that we should not casually discard. Nations are large enough to encompass some diversity of culture and class, and the successful ones have been able to organize one reasonably representative national discussion of justice. That requires an inclusive public sphere, a powerful and accountable legislature, and a sense of “shared fate” that draws people’s attention to the public good. Perhaps we should now also understand ourselves as global citizens,16 but we are not literally people who both rule and obey at that scale. Meanwhile, we risk losing the national solidarity that underlies hard-won sovereign democratic institutions.

III. State-legible society In order for a state to govern, it must be able to see what it rules and make sense of the data. It would be an analytical mistake to assume perfect information; governments need rules and tools to make their societies legible; and people must cooperate (to a degree) if the state is to see them accurately. However, even a democratic state should not be able to see everywhere all the time. Jeremy Bentham was a proponent of democracy (defined as majority-rule) who pushed the ideal of transparency to a horrifying conclusion. His famous model of the ideal prison was the “Panopticon”.17 Bentham fought what he called a “War” to have his Panopticons built, and he wanted to extend the same principles to programs that served “persons of the unoffending class.” For paupers, much like criminals, the

 16

Zuckerman, Ethan (2013), Op.Cit. Bentham, Jeremy (1843), ‘Appendix: Selections from Bentham’s Narrative Regarding the Panopticon Penitentiary Project, and from the Correspondence on the Subject’, in The Works of Jeremy Bentham, Edinburgh: William Tait, vol. 11, pp.96-170, note 25.

17



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“principle of universal and constant inspectability” would ensure that they would learn habits of good behavior that would persist even after they were officially released from oversight. As a democrat, Bentham also advocated “inspectability of the inspectors by the eye of the public opinion tribunal.” 18 He saw the consequent changes in the behavior of both the rulers and the ruled as fully consistent with the public good. For most readers, however, the Panopticon is a nightmare. What is wrong with it? First, it makes power pervasive and reduces human agency to a minimum19. In a society that is completely legible to the state, we cannot have private spaces in which to develop beliefs and interests so that we can participate in the public realm as distinct individuals. The result is a far poorer public sphere. Hannah Arendt was a great defender of public life, but she wrote that the “four walls, within which people’s private life is lived, constitute a shield against the public aspect of the world. They enclose a secure place, without which no living thing can thrive.”20 The Panopticon’s cells have three walls, so that the prisoners cannot communicate with each other; the fourth is deliberately missing to allow the custodian to see in. In the digital age, the problem of legibility has become much more severe. We now use computers, mobile phones, and other electronic devices in almost all aspects of our lives, for work, exchange, health, recreation, and intimacy. Each call placed, character typed, and site visited leaves a digital trace. Those traces can be collected and analyzed by corporations and governments—or rather, first by corporations and then by the governments that seize or penetrate their data. Because most content on the Internet is free but supported by advertising, and because the actual financial returns from advertising are poor, Web companies face relentless pressure to collect information on customers to make advertising more effective. People accept that data will be collected because that is how the Internet is funded. Subsequently, governments harvest the data.21

 18

Ibid. Foucault, Michel (1977), ‘Discipline and Punish, Panopticism’, in Discipline and Punish: The Birth of the Prison, edited by Alan Sheridan, New York: Vintage Books, pp.195-228. 20 Arendt, Hannah (1954), The Crisis in Education. In Between Past and Future: Eight Exercises in Political Thought, New York: Penguin, p.186. 21 Zuckerman, Ethan (2014), ‘The Internet’s Original Sin’, The Atlantic, August 14, http://www.theatlantic.com/technology/archive/2014/08/advertising-is-the-inter nets-original-sin/376041 19



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We do not know whether our behavior is being analyzed at any time, but it is possible. That is precisely the principle of the Panopticon. Foucault was perhaps too quick to see power as determinative and not sufficiently optimistic about the ability of people to resist surveillance, their creativity and sheer recalcitrance. But the threat is real. One aspect of the threat is pervasiveness. Hannah Arendt’s four walls cannot shield you against surveillance if inside your house you are typing emails analyzed by Google and read by the NSA. As long as you are using a digital device, there is no secure refuge from surveillance. The chilling effects take many forms. For example, journalists now say that government sources are more reluctant than before to come forward because they believe their communications are being monitored. A second aspect of the problem is precision. Today, analysts no longer rely on samples of information taken from random surveys, observations, or audits, to be analyzed using statistical techniques based on probability. Now they have all the data. For example, social scientists working in academia, business, and the government can collect and analyze all the votes in cast in an election, all the job openings advertised in newspapers, or all the social media postings that include a given phrase. They can also merge these data, providing, for instance, detailed consumer and employment information about each voter. The result is a wealth of information about small groups and their behavior that yields remarkably accurate predictions. Those predictions would have been unthinkable relying on samples and statistics based on probability. Pervasiveness and precision relate to a third threat: manipulability. Behavioral economics, prospect theory, and the latest marketing science combine to tell us that: (1) people’s behavior is predictable, but it does not depend on rational calculations of benefits versus costs; (2) we can get people to do what we want by understanding the history of their behavior and then subtly shifting messages or the way choices are framed; and (3) this is all good because we can attain desirable social outcomes without paying people or threatening them in order to force them do the right thing. Governments needn’t ban or tax harmful products; they can “nudge” citizens into shunning them.22



22 Thaler, Richard H. and Sunstein, Cass R. (2008). Nudge: Improving Decisions about Health, Wealth, and Happiness, New Haven, CT: Yale University Press.



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From Bentham’s perspective, it is an excellent result: a democratically elected government can improve people’s actions without threats or bribery, merely by observing them more accurately and tweaking choices or messages to nudge them in the right direction. Democracy benefits because people can decide what is “better” and can monitor the state; governments become more efficient and effective through their use of data. But from Foucault’s perspective, the new data-driven behavioral economics is the epitome of a nightmare Panopticon. Precisely because the power is soft, imperceptible, cheap, and ubiquitous, it is not resisted.

2. Prospects of cosmopolitanism in the digital age The Internet has rendered cosmopolitanism a practical possibility: “the Internet enables the global communication of minds beyond all the local boundaries of particular communities as characterised by race, ethnicity, religion, gender, and social status. This provides the ground for global communication on the basis of a common language” 23 (Spence 2000). Although in some sense utopian, what is required for the connection between cosmopolitanism and the Internet is the emergence of an engaged audience through the development of a mature citizenship and a responsible government.

I. What is “cosmopolitan” in the digital age? Following Kwame A. Appiah,24 Zuckerman considers “cosmopolitans” those who “take an interest in the beliefs and practices of others, striving to understand, if not accept or adopt, other ways of being” and “take seriously the notion that they have obligations to people who are not their kin, even to people who have radically different beliefs”25 Zuckerman’s digital cosmopolitanism adapts this notion to the digital realm. Where the cosmopolitans traditionally face the challenge of obtaining good information about remote communities, the Internet should, in theory, enable them accessibility to other cultures, as long as they know where – and how– to look.

 23

Spence, Edward (2000), ‘Cosmopolitanism and the Internet’, Paper delivered at the Second International Conference of the Australian Institute of Computer Ethics. November 2000, http://crpit.com/confpapers/CRPITV1Spence.pdf. 24 Appiah, Kwame A. (2007), Cosmopolitanism: Ethics in a World of Strangers, New York: W. W. Norton. 25 Zuckerman, Ethan (2013), Op.Cit., p.24.



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Technologies influence the evolution of our minds. This is not an easy task: “The Internet will not magically turn us into digital cosmopolitans; if we want to maximize the benefits and minimize the harms of the connection, we have to take responsibility for shaping the tools we use to encounter the world.”26 This project faces enormous challenges. Embracing cosmopolitanism is an active process. Faced with an imaginary cosmopolitanism, digital cosmopolitanism challenges our comfort and encourages us to consider human experience as defined by multiple worlds and from many points of view. It is therefore necessary to promote web platforms that support not only the exchange of skills and talent, but also connections, the feeling of belonging to a group, and freedom. In addition to encouraging citizens to engage with civic causes, to change online conversations and to innovate, these platforms could stimulate participation or informal learning, sharing processes and offering services to promote entrepreneurship. In short, technologies have greatly increased the number of people who are able to create and disseminate contents. But these technologies, which are becoming more powerful and more personal, may not be leading to a more diverse media environment. The framework of cosmopolitanism proposes a way to design tools and approaches that help us to increase our cognitive diversity and prepare us to meet the challenges of our time.

II. Internet as a commons The development and use of technology has established new ways of relating socially, from instant communication, the constant exchange and large-scale use of information. These tools have enabled new forms of collaboration to produce open-source software based on the freedom of users to run, copy, distribute, modify and improve the software, allowing a fairer and more equitable dissemination of knowledge. This has highlighted the need to rethink – and promote – the commons in the digital age. Since the mid-1990s, the focus of historians has moved from the “old” territorially based commons, to the “new” commons of knowledge and social capital. The new knowledge economy with decentralized and

 26



Ibid., p.27.

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collaborative networks has prompted the rediscovery of the commons and their development. Human knowledge is an inexhaustible and inclusive commons that needs to be managed, protected and preserved against monopolistic abuses. In pre-Internet society the price to be paid for accessing information was related to the value of the information itself and to production, replication and distribution costs, since the information was subject to one kind of material support or another. But in a digital society the most valuable assets are not material goods, but something as intangible as the words we use to communicate, the information that generates a common space – for all – enabling the collective construction of knowledge. However, it is also true that an information society is governed by the owners of the media and inequalities are increasing. The process of creating public knowledge is a common good. This task contributes to building social capital and strong communities, and provides citizens with the skills required for effective citizenship.In this process universities have a key role to play and could themselves benefit from working more closely with surrounding communities. Also important is the function of many organizations in creating local knowledge. International and regional institutions responsibly play a crucial role in the integration of technologies, promoting education concerning their use and making them universally available. Internet could help to strengthen democratic schools by offering voluntary courses and educational assistance to students interested in preparing themselves for future studies or jobs.27 Doubts about whether the Internet will enable citizens to have more or more pertinent power over their governments should not discourage anyone from believing in online deliberation or political organization. Private organizations are free to pursue their own interests and at the same time generate public goods free and available to all.28 All cables, computers and emails found on the Internet are private and are under the control of someone or another. Computers should be programmed to

 27

Levine, Peter (2007), ‘Collective Action, Civic Engagement, and the Knowledge Commons’, in Hess, Ch. & Ostrom, E. (eds.), Understanding Knowledge as a Commons: From Theory to Practice, Cambridge, MA: The MIT Press, pp.247-75. 28 Levine, Peter (2001), ‘Civic Renewal and the Commons of Cyberspace’, The National Civic Review, 90(3), pp.205-211; (2002), ‘Building the E-Commons’, The Good Society, 11(3), pp.1-9.



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receive information and send it to their recipients. This makes the Internet a public highway, belonging to everyone because it does not belong to anyone in particular, not even a state. In addition, it is free of bureaucracy and restrictions on individual creativity, fosters innovation and promotes diversity, since anyone, in any country, can become a creator; it encourages the virtues of generosity and openness, and can support the building of strong communities, providing people with the opportunity to make an active contribution and to cooperate. Furthermore, the protection of a commons can also be a matter of simple justice. Since many people have anonymously contributed to an intellectual or cultural commons, noone can claim exclusive rights.29

III. Free culture Richard M. Stallman30 laid the social, ethical, political and economic foundations of the free software movement, which aims to make all programs free for users. Despite the ambiguity of the term, “free” is not a matter of price, but involves the users’ freedom to effectively modify the software and distribute modified versions. This has positive effects on education: it reduces costs, gives the users the freedom to cooperate with each other and teaches life styles beneficial to society as a whole; it encourages everyone to learn as much as they want to know and fosters community engagement with public service as the role model. All schools should teach free software because of their mission to educate good citizens in a strong, independent society, united and free. Lawrence Lessig 31 has also advocated free software in order to prevent control by a minority, and ensure that users obtain backing for their rights. Therefore, first and foremost, legislation and regulations should preserve free software. Secondly, our democracies require a commons that serves as a vehicle for civil expression. Thirdly, networks of people are needed which are committed to the idea of a commons and to sharing their knowledge and experience.

 29

Levine, Peter (2003), ‘A Movement for the Commons?’, The Responsive Community, 13(4), pp.28-39 30 Stallman, Richard M. (2002), Free Software, Free Society: Selected Essays of Richard M. Stallman, Boston, MA: GNU Pres. 31 Lessig, Lawrence (1999), Code and Other Laws of Cyberspace, New York: Basic Books; (2001), The Future of Ideas: The Fate of the Commons in a Connected World, New York: Random House.



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To guarantee a free code is a prerequisite of transparency in government action, since citizens can control it, but it is not sufficient in itself, because the state remains the regulator. In reality, cyberspace is about to become the most regulated place in history. Such important issues as privacy in communications, the possibility to share or withhold data, to remix information, and the extension of freedom of expression today depend on technical decisions and policies that are shaping the Internet.32 Lessig 33 wishes to protect the processes and products of free software communities through free licenses, using the possibilities of the Internet to grow economies and cultures. One of the areas of the Internet with the greatest impact has been the space it provides for creative expression. This explosion of creativity has affected business models with unquestionable benefits. The trend points to the emergence of a “hybrid economy”, combining elements of business and the sharing economy. Both have been boosted by the advent of the Internet. But the latter has undergone a more interesting phenomenon, comprising people from all over the world, who voluntarily engage in social relations based on one or more common interests. In short, free software has proven its ability to achieve reliable technical solutions on the basis of two fundamental principles: freedom – to use, copy, distribute and modify the software – and cooperation; since the modifications carried out must be free, everyone who is contributing to modify or provide solutions can benefit.

IV. Creativity and generosity in the digital age From the meeting of technology and the maturity of Western democratic systems, on the web what Shirky 34 has called a cognitive surplus –desire to know, participate and contribute– has arisen, masked by multiple actors and causes for the past 50 years. The potential impact of this cognitive surplus, i.e. the surplus of knowledge in our society, is enormous. It represents the ability of people to volunteer, contribute and collaborate on large projects, some of them global, based on two

 32

Lessig, Laurence (2006), Code: Version 2.0, New York: Basic Books. Lessig, Laurence (2004), Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, New York; Penguin Press; New York; (2008), Remix: Making Art and Commerce Thrive in the Hybrid Economy, New York: Penguin Pres. 34 Shirky, Clay (2008), Here Comes Everybody. The Power of Organizing Without Organizations. New York: Penguin Press. 33



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elements: on the one hand, the ancient human motivation towards cooperation and generosity, this paradigm shift being made possible, according to Shirky,35 by its ability to fulfill the basic desire to share, interact, cooperate and be creative, making us feel part of something big. On the other hand, the Internet allow us to create, share, and put our intelligence and time to work together altruistically and generously, in order to make what individuals, companies and even institutions would not be able to create. Organizations designed around a culture of generosity can achieve remarkable effects, reducing contractual charges and providing actions with a civic value. To the extent that we learn to use our cognitive surplus to create civic value, we can change society. The challenge is to change our thinking. In a democratic society, education should support and encourage these processes as far as possible. The Internet is an excellent opportunity to learn in a community, share and participate, developing our cognitive and connective capabilities, and making them less dependent. Moreover, in a context of continuous information flow, learning becomes a continuous, autonomous and open process, situated in concrete experiences and needs. But cosmetic reforms are insufficient; it is necessary to transform learning on the basis of the changes that have occurred in the knowledge society, from pre-primary to higher education.

3. Conclusions Globalization via the digital age demands a new ethics and intercultural awareness, as well as a committed reflection on what the synthesis between the digital realm and global citizenship entails. The borders that previously separated us as citizens physically and culturally have begun to dissolve, and have given way to a call for intercultural accountability and a form of global citizenship that, on one hand, while it surpasses borders, patriotism, and nationalism alike, on the other, demands an understanding and respect for cultural differences, acknowledging the unique existential paradox of universal citizenship that posits each of us as both stranger and citizen on the shared globe.

 35

Shirky, Clay (2010), Cognitive Surplus: Creativity and Generosity in a Connected Age, New York: Penguin Press.



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People deliberately use digital media to improve the world. Such examples offer grounds for optimism—or at least hope. But we should be sober about the new media environment. It may empower some ordinary people but it also disempowers many and offers unprecedented influence to the small groups who control governments and companies. Of course, not all uses of the digital media are zero-sum. Wikipedia, as just one example, shows that people can cooperate to make a free resource of enormous value without coercion or financial reward. But some political struggles do have winners and losers, and although it is far too soon to conclude that the ordinary people of the world will be the net losers overall, they do face serious challenges that must be addressed head on.



PROGRESSIVE ENVIRONMENTAL TAXES: A FAIR MEASURE AGAINST CLIMATE CHANGE PAULA CASAL ICREA-UPF  

1. Introduction. Inequality and destruction It has been estimated that climate change kills 300,000 people a year and causes annual losses of $125 billion.1 Humanity’s contribution to this disaster is very unevenly distributed. For example, ‘each UK birth will be responsible for 160 times more greenhouse gas emissions … than a new birth in Ethiopia’ (Guillebaud and Haynes, 2008). Inequality and environmental destruction are related. One reason is that both affluence and poverty can be environmentally deleterious. Affluence often leads to waste. For example, North Americans consume and pollute twice as much as the average European but do not enjoy better or safer lives2. On the other hand, destitution and indebtedness can lead to the poor overexploiting the little land left for their subsistence, to destroying rainforests and using resources in other short-sighted ways. Sitting back to study the best collective, long-term use of natural resources is often a luxury the poor cannot afford. The need to secure the survival of at least one child, for example, tends to lead to high birth rates, exacerbating existing problems. Even in the United Kingdom, the poor have a substantial environmental impact because of badly-insulated rented properties and the lack of incentives to insulate more effectively. Nevertheless, the impact of the rich is far greater than that of the poor. The richest fifth of humanity

 1

Global Humanitarian Forum (2009), Human Impact Report. Climate Change, The Anatomy of A Silent Crisis, p.11. http://www.eird.org/publicaciones/humanimpactreport.pdf 2 Wilkinson, Richard & Pickett, Kate (2009), The Spirit Level. Why More Equal Societies Almost Always Do Better, London: Penguin. The U.S.A. performs embarrassingly compared to Europe or Cuba in practically all areas examined by the authors (including child mortality, homicide, mental illness, teenage pregnancies, obesity, and drug abuse).

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accounts for 86% of global consumption, including 87% of cars, 84% of paper, 74% of telephones, 65% of electricity, 58% of energy, and 46% of meat.3 In contrast, the poorest fifth consume less than 10% of all these items. Environmental destruction in poor countries, moreover, tends to be caused by consumer demand in the developed world. Economic inequality is linked to high aggregate consumption not only because both affluence and poverty lead to resource misuse but also because the capacity to control environmental destruction and to escape its effects is very unevenly distributed. Inequality also fetters the search for solutions because it divides humanity into two groups neither of which shares both the capacity and the urgent need to avert environmental disaster. Recent world-wide statistics provided by Richard Wilkinson and Kate Pickett suggest less unequal societies are more sustainable, display higher levels of recycling, and manage to provide public goods such as education and healthcare at a lower environmental cost. 4 The authors also link inequality to lower life expectancy and higher infant mortality, teenage births, homicide, drug use, length and quality of imprisonment, obesity, lack of community and trust, poor education, and mental and physical illness. Other studies also associate equality with greater economic security and well-being.5 And even if Wilkinson and Pickett overestimate the perniciousness of inequality, the conjunction of all the above considerations favours solutions to environmental problems that diminish, or do not exacerbate, our current exceptionally high levels of economic inequality.6



3 United Nations (1998), Human Development Report, Oxford: Oxford University Press, p.4. 4 Wilkinson, Richard & Pickett, Kate (2009), Op.Cit., 215ff. Cuba was practically the only country classified as sustainable at the 1992 Rio Summit and by the W.W.F. (2006). 5 International Labour Organisation (2004) Economic Security for a Better World, Washington D.C: Brookings Institution Press. 6 Cf. Saez, Emmanuel (2008), updated ‘Striking it Richer’, Pathways Magazine, http://elsa.berkeley.edu/~saez/saez-UStopincomes-2007.pdf; Gentleman, Amelian & Mulholland, Hélène (2010), ‘Unequal Britain: Richest 10% are now 100 times better off than the poorest’, Guardian, 27 January; Milanovic, Branko (2011), The Haves and the Have-Nots: A Brief and Idiosyncratic History of Global Inequality, New York: Basic Books; Piketty, Thomas (2014), Capital in the Twenty-First Century, Cambridge, MA: The Belknap Press of Harvard University Press.

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Finally, the most frequently voiced argument against environmental taxes is their potentially regressive effect.7 Jose Luís Rodríguez Zapatero, for example, appealed to this argument against Joan Herrera’s defence of green fiscal reform. Zapatero argued: “We must address the issue of green taxation but we must avoid making life more difficult for poorer individuals by causing prices to rise even more, and we must avoid following the countries outside Europe that employ subsidies and price regulations, which have proven a bad idea.”8

Nowadays, however, there are various methods to make environmental taxes progressive, either in relation to income, or to the total amount of energy or other resources consumed by an agent.

2. Making taxes progressive Before the mid-1970’s there were no sophisticated blueprints for household expenditure taxes, 9 even though expenditure taxes had been levied on firms for several thousand years, and household income taxes had been used for over a century.10 The idea of progressive expenditure taxes is even more recent. An active debate on concrete proposals took place mainly in the late 1990’s, following the 1995 USA Tax Bill, introduced to the U.S. Senate by Republican Pete Domenici and Democrats Sam Nunn and Bob Kerrey, and the 1999 Fair Tax Act introduced by Republican John Linder in the House. The debate, which was revived in the 2008 presidential campaign, focused on some aspects of the specific proposal, and the need to simplify the tax system, and

 7

See Wier, Mette et al (2005), ‘Are CO2 Taxes Regressive?’, Ecological Economics, 52, pp-239-251. 8 Response to Joan Herrera, televised debate on the State of the Nation, TV2, May 12, 2009. 9 Irving and Herbert Fisher’s Constructive Income Taxation appeared in 1942, and Nicholas Kaldor’s proposal for households, An Expenditure Tax, in 1955. But there were no serious practical plans before: Andrews, William D. (1974), ‘A Consumption-Type or Cash Flow Personal Income Tax’, Harvard Law Review, 87, pp.1113-1188; United States Treasury (1977), Blueprints for Basic Tax Reform, http://www.treasury.gov/resource-center/tax-policy/Pages/blueprints-index.aspx; Institute for Fiscal Studies (1978), The Structure and Reform of Direct Taxation, London: George Allen and Unwin; and Graetz Michael. J. (1979), ‘Implementing a Progressive Consumption Tax’, Harvard Law Review, 92, pp.1575-1661. See Seidman, Laurence (1999), The USA Tax, Cambridge, Mass: MIT Press, p.145. 10 Seidman, Laurence (1999), Op.Cit., p.6.

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stimulate savings. It had little to do with global justice or the environment. Barak Obama rejected the proposal as insufficiently progressive. 11 Progressive tax plans, however, can be made more or less incremental by altering the conditions for each tax-band or by implementation together with additional measures. In describing various ways to introduce progressive environmental taxes, it is important to stress that the case for these taxes should be distinguished from the case for any specific implementation method. The most desirable tax-and-transfer package may differ across societies, and involve a variety of methods. After all, what matters is the net impact of all taxes and transfers, and various other aspects of the relevant society, such as how the poor travel or keep warm. The arguments supporting progressive environmental taxes, however, like the arguments for progressive income taxes, can be discussed irrespective of any specific tax scheme.

A. Luxury taxes One simple way of reducing pollution without causing a regressive fiscal effect is to introduce luxury taxes on items like second homes, tropical wood, flights, fast cars, speed boats, water-bikes, and sports utility vehicles which poor people are unlikely to purchase. John Stuart Mill advocated luxury taxes12 but noted that a necessity for some may be a vanity item for others. This may justify exemptions in the case of revenue-raising luxury taxes. In the case of depletion or pollution-deterring luxury taxes, by contrast, compensatory funds (non-ear-marked subsidies) may be better than exemptions because they preserve the desired incentives, and both recipients and society may benefit from the possibility of individuals adopting greener alternatives so they can employ their subsidies on the less harmful items they prefer. Additional luxury taxes may also be levied on cheap or free items such as over-packaged goods or plastic bags, which the poor do not need to consume but may do so. These taxes are likely to be lower than those on items the poor cannot afford, because less wealthy buyers are easier to deter. It is perhaps worth clarifying here that though deterrence taxes – whether on pollution or alcohol – are supposed to be levied only on items of proven



11 See Barack Obama’s reaction to the proposal at http://linderfairtax.house.gov/index.cfm?FuseAction=Letters.View&ContentRecor d_id=313 12 Mill, John. S. (1994), Principles of Political Economy (1848), Oxford: Oxford University Press, pp.242-44.

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harmfulness, the exact tax per unit need not represent the exact harm a unit causes. This would be hard to predict, among other things because it depends on how other consumers behave. Instead, it represents the deterrence needed to reduce consumption to a desired level. For example, Ireland achieved a 90% reduction in plastic bag consumption with a 15 cent tax in 2002.13 This figure does not represent the harm caused by each bag but the amount needed to achieve a 90% reduction in a particular country and year where and when consumers had certain habits and alternatives. This is why taxes are often adjusted in view of the observed response to initial rates, as is likely to happen with all the implementation options considered here.

B. Tax Rebates A more drastic option than luxury taxes involves taxing all items and either introducing partial or total exemptions for necessities or rebating a fixed amount to each taxpayer annually. Imagine, for example, a rebate equalling the tax rate multiplied by the minimum wage. Supposing the annual minimum wage was $10,000, and the tax rate was 15%, the rebate would be $1,500. Thus, a minimum wage earner spending all her income would actually pay no expenditure taxes at all. Since modest rebates are scarcely progressive among the wealthy, some authors combine them with progressive income taxes for high earners. 14 Further provisions need to be made for dependent children. Perhaps half of an adult rebate should be added for each, and granted to a maximum of two per family. This system can be employed to all spending, to mainly or only environmental consumption, or to something even more specific like carbon, taxing fuels at source and distributing the revenue equally, as James Hansen15 has proposed.

 13

See http://news.bbc.co.uk/2/hi/europe/2205419.stm McCaffery, Edward J. (1992), ‘Tax Policy under a Hybrid Income-Consumption Tax’, Texas Law Review, 70, pp.1149-1181; McCaffery, Edward J. (1999). ‘Real Tax Reform. The Case for a Progressive Consumption Tax’, Boston Review, 24; McCaffery, Edward J. (2002), Fair Not Flat, Chicago: University of Chicago Press. 15 Hansen, James (2009), Storms of My Grandchildren, London: Bloomsbury, pp.209-222. 14

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C. Progressive expenditure taxes with environmental taxes It is a simple matter to subject an individual’s expenditure - the result of subtracting a person’s savings from her income - to a progressive tax.16 Since this would involve taxing all spending, environmentally-damaging items would have to be subject to additional taxes, so that the total tax paid by the less environmentally-friendly consumers would also be higher. The additional taxes could themselves be luxury taxes, taxes on carbon and other substances or both.

D. Environmental credit cards The environmental impact of an individual’s consumption can be recorded much as we record individual savings. Individuals would be allowed to purchase goods without an additional charge provided they had not used up their allowance. As they use it up and incur so to speak ‘ecological debt’, they would have to pay a surcharge, growing with the size of the debt. Given the difficulty of taxing whatever damages the environment to any degree, the scheme might focus on the amount of carbon an individual uses and include only a few items such as housing, flights, cars, boats, bikes, petrol and energy for heating and lighting. Additional items could be added after the pilot phase, including non-carbon global-warming agents, and substances involved in environmental problems other than climate change. Depending on political feasibility, and how much, and how urgently the consumption of certain resources needs to be reduced – which crucially depends on the delay with which environmental taxes are introduced – the relevant authorities could decide whether individuals should be allowed to consume a tax-free amount, how large this exemption should be, and the rate of tax increases on those who go over the limit. A tax-free ration can be justified by appealing to sufficiency principles that grant special status to the satisfaction of our basic needs17 and by noting that what is objectionable, and taxable, is not consumption as such but

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This is the method chosen by Seidman, Laurence (1999), Op.Cit.; Fellows, James A. (1994), ‘Consumption Taxes. A View of Future Tax Reform in America’, The CPA Journal, 64; and, with an annual deduction for the first $20,000, by Frank, Robert & Cook, Philip.J. (1995), The Winner-Take All Society, New York: Free Press. 17 Casal, Paula (2007), ‘Why Sufficiency is not Enough’, Ethics 117, pp.296–326.

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rather consumption exceeding a certain threshold.18 Exemptions, however, do not eliminate regression and neither the individuals below the threshold nor those far above it may be motivated to reduce consumption further. Both problems disappear, though, when tax rates rise as an individual’s consumption above the relevant threshold increases. Imagine that transactions are monitored by a computer, which specifies the appropriate rate, depending on the buyer’s consumption history. For example, one might be allowed to consume n units of carbon at a zero tax rate, and then be taxed at 10% for the next n units, 20% for the subsequent n units, and so on. Belgians have cards with a magnetic strip indicating their medical consumption histories, which they hand in at pharmacies when the purchase treatment. A similar system could monitor environmental consumption. To secure compliance, appropriate discounts could be obtained only with the card.19 Alternatively, an environmental payment card may be required to purchase certain items, and to protect privacy, computers could record only the amount consumed by an individual rather than details of specific items. If other taxes are not reduced to preserve tax neutrality the additional revenue could finance environmental improvements. Alternatively, low consumers could be allowed to obtain financial rewards for their frugality by selling to the state, or on a permit market, their permits to purchase goods at pre-tax prices. In the first case, those whose total consumption remains below the allowed limit would receive a basic income20 financed through progressive environmental taxes. 21 In the second case, all consumption permits would have the same price and the initial progressivity

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For example, the Dutch carbon and energy tax on households and small businesses applies only for use between 800-170,000 cubic meters of gas and 80050,000 kWh of electricity, recognizing that consumption cannot be reduced to zero. 19 See e.g. http://www.ukerc.ac.uk/Downloads/PDF/L/Low_carbon_word_intro.pdf and http:// papers.ssrn.com/sol3/papers.cfm?abstract_id=947485 20 Van Parijs, Philippe (1995), Real Freedom for All, Oxford: Clarendon Press. 21 Black markets may develop but, with high penalties, risks for small items would be foolish, and it is not easy to hide cars or houses. Most people don’t disguise their income as someone else’s in order to pay lower taxes and they may even be reluctant to declare their homes or vehicles as somebody else’s. In addition to steep fines, they may end up with invalid licenses, insurance claims or sales that fall through. The point to be stressed here is the need for progressive consumption taxes, not particular ways of implementing them. If one system involved practical problems, another way to achieve progressivity could be found.

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disappears.22 On the other hand, the scheme would still help to diminish inequality and pollution since individuals who consume less would have more permits to sell. 23 The resulting basic income, not sensitive to willingness to work but to consumption habits would be less likely either to generate resentment on the part of the industrious or to dampen incentives than one financed exclusively through income tax.

3. Conclusion Opposing a green tax reform on the grounds that it is inevitably regressive is no longer a credible position. We now have the tools to combat climate change with fiscal mechanisms that do not increase, but can actually decrease, inequality. The alleged regressive effect of green taxes is a poor excuse not to take seriously the moral imperative of combating climate change with any tools available.

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For example, imagine Rockefeller wants to buy a fifth yacht. Given his high consumption history, under the former scheme he would have to pay an extremely high over-consumption tax. For sufficiently high compensation, his lowconsuming cleaner, however, might agree to the use of her low-tax consumption permit for this purchase. From that moment on, she has to pay a higher tax rate for whatever else she consumes, but there is a price she is willing to accept for this drawback. If a market develops, all consumption permits have the same price. 23 David Miliband put forward a scheme of personalized tradable carbon allowances when he was Secretary of State for the Environment. Milliband, David (2006), ‘The Great Stink: Towards an Environmental Contract’, Annual Lecture of the Audit Comission, http://www.audit-commission.gov.uk/aboutus/history/annual lectures/Pages/annuallecture2006.aspx. See Toynbee, Polly (2006), ‘This Eclectic Radicalism Marries Green Politics with Social Justice’, Guardian, 15 December; also, House of Commons Environmental Audit Committee, ‘Personal Carbon Trading’, Fifth of the 2007 – 08 Session http://www.publications.parliament.uk/pa/cm200708/cmselect/cmenvaud/565/565. pdf