Kant's Grounded Cosmopolitanism: Original Common Possession and the Right to Visit 0192844040, 9780192844040

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Kant’s Grounded Cosmopolitanism

Kant’s Grounded Cosmopolitanism Original Common Possession and the Right to Visit J A K O B H U B ER

Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Jakob Huber 2022 The moral rights of the author have been asserted Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2022933187 ISBN 978–0–19–284404–0 DOI: 10.1093/oso/9780192844040.001.0001 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Cover image: Xaver Bo¨hm Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Acknowledgements I have been working on this book for many years and have benefited from the generosity of many people and institutions. While some of its ideas reach back as far as my time as a master’s student at Oxford working with Jeremy Waldron and Simon Caney, the core of the book originates from a PhD project I worked on at the London School of Economics and Political Science under the supervision of Katrin Flikschuh. Her work has been a deep source of intellectual inspiration to me and her supervision—combining the most incisive questioning at every point with a relentless confidence in my intellectual trajectory—was more than I could have wished for. My advisor Lea Ypi gave me more guidance and advice than one can reasonably expect and provided both intellectual and professional support wherever needed. I also benefitted immensely from the incisive questions and comments from Pauline Kleingeld and Annie Stilz, who examined the thesis. The Political Theory Group at the LSE was an extraordinarily inspiring environment to work on this project. It is a true community full of intellectually curious, mutually encouraging and warm-hearted people. Kai Spiekermann, Chandran Kukathas, Laura Valentini, Leigh Jenco, Christian List, David Axelsen, Anne Phillips, and Johan Olsthoorn gave me constructive feedback at different stages. I was also fortunate enough to spend my time with a wonderful group of fellow PhD students, starting with Ed Hall and the late Carlo Argenton, to Nimrod Kovner, Mollie Gerver, Maud Gauthier-Chung, Anahi Wiedenbru¨g, Fabio Wolkenstein, Kaveh Pourvand, Paola Romero, Antoine Louette, and Temi Ogunye. They were not only great philosophical interlocutors but, most importantly, a lot of fun to have around. Tim and Alison Frost generously funded the Ken Minogue Scholarship, which allowed me to fully immerse myself in the intellectual side of being a doctoral student. During my time as a postdoc in Frankfurt, I was lucky enough to be surrounded by a great number of fellow Kant enthusiasts, among them Claudia Blo¨ser, Eva Buddeberg, Rainer Forst, Sofie Møller, Marcus Willaschek, and all members of the Kant-Arbeitskreis. Since my arrival in Berlin, my colleagues at the Institute of Philosophy at Freie Universita¨t have been very supportive in my efforts to complete the project. In all these years, two people have had

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a particularly powerful intellectual influence on me. Like everyone with an interest in Kant’s political philosophy these days, my views have been deeply shaped by Arthur Ripstein’s groundbreaking work. I am immensely grateful to him for inviting me to Toronto and being such a generous host. Working with him has influenced my reading of Kant as much as my idea of what it means to be truly devoted to philosophy. Peter Niesen has been a mentor and philosophical interlocutor for many years. Our countless conversations have deeply shaped my thinking and continue to do so. Since the early stages of this projects, I have presented parts of it at numerous workshops and conferences. I am grateful to all audience for their questions and comments, in particular Sorin Baiasu, Luke Davies, Irina Schumski, Lukas Thorpe, Philipp-Alexander Hirsch, Louis-Philippe Hodgson, Kimberley Hutchings, Ben Hoffmann, Tamara Jugov, Anna Jurkevics, Catherine Lu, Christopher Meckstroth, Shmulik Nili, Karoline Reinhardt, Inés Valdez, and many others. I am grateful also to my editor Dominic Byatt at Oxford University Press as well as three anonymous reviewers for their invaluable suggestions and comments. I would also like to thank Eileen and Thomas Alexander, Kate Bell, Xaver Bo¨hm, Sophia Coles, Nicolas Helm-Grovas, Simon Haux, Jule Krusch, Luise Katharina Mu¨ller, Linus Nickl, Lucia Rubinelli, Ingmar Spiller, and Philipp Stavenhagen for distracting me in the right ways and reminding me that there is a life beyond Kant. My parents, Lisa and Heiner, as well as my sister, Theresa, had my back during the project and ever since. I doubt that this book would ever have been written without their endless support. The best thing that has happened to me since I started to work on this project was Luisa coming into my life. This book is dedicated to her. Earlier versions of some of the material included in this book have appeared elsewhere: an earlier version of parts of Chapter 1 appeared in Kantian Review (2007). 17(1): pp. 1–25; an earlier version of parts of Chapter 2 appeared in European Journal of Philosophy (2017). 25(2): 231–249, an earlier version of parts of Chapter 4 appeared in The Shifting Border: Ayelet Shachar in Dialogue, Antony Simon Laden, Peter Niesen, and David Owen (eds) (2020). Manchester: Manchester University Press, pp. 193–213.

Contents List of Abbreviations

Introduction: Reconceiving Kant’s Cosmopolitanism

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1. The Right to be Somewhere

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2. Original Common Possession of the Earth

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3. The Right to Visit (I): Cosmopolitan Encounters

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4. The Right to Visit (II): Mobility as Juridical Agency

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5. Progress, Hope, and the Cosmopolitan State Conclusion: Kant’s Legacy Bibliography Index

128 160 166 174

List of Abbreviations All citations refer to volume and page numbers of the Prussian Academy Edition of Kant’s gesammelte Schriften (Berlin: Walter de Gruyter and predecessors, 1900—), with the standard A/B form for the first/second editions of the Critique of Pure Reason. Where available, I have used translations from the Cambridge Edition of Kant’s works, published by Cambridge University Press under the general editorship of Paul Guyer and Allen Wood. AL Ant CF CJ CPR CrPrR DDR DPP DHR DoR En Gr IUH LPG PP Proleg Rel T&P TPP WOT

Lectures on Anthropology Anthropology from a Pragmatic Point of View The Conflict of the Faculties Critique of Judgment Critique of Pure Reason Critique of Practical Reason Drafts for the Doctrine of Right Drafts for Perpetual Peace On the Different Human Races Doctrine of Right An Answer to the Question: What is Enlightenment? Groundwork for the Metaphysics of Morals Idea for a Universal History with a Cosmopolitan Intent Do¨nhoff Lectures on Physical Geography Toward Perpetual Peace Prolegomena to any Future Metaphysics Religion within the Boundaries of mere Reason On the Common Saying: This May Be Correct in Theory, but it is of No Use in Practice On the Use of Teleological Principles in Philosophy What is Orientation in Thinking?

Introduction Reconceiving Kant’s Cosmopolitanism

While Kant’s status as a key figure in the history of philosophical cosmopolitanism has never been in doubt (e.g., Kleingeld 2016; Kleingeld & Brown 2014), for long his ideas were primarily absorbed only indirectly through his moral philosophy. First-generation cosmopolitans in contemporary global justice debates (e.g., Caney 2005; Tan 2004), for instance, prominently invoked Kant’s ethical idea of all humans as members of a single, all-encompassing moral community (Gr 4: 433–440, see also Kleingeld 2016 pp. 19–21). In so doing, they reflected a wider, long-standing tendency to politicise Kant’s moral writings. The primary ‘culprit’ in this regard was John Rawls (2000 pp. 143– 328), who had effectively turned the Groundwork’s account of ethically good willing as self-legislation into a ‘decision-making procedure’ for the generation of universally binding principles of justice: this, despite Kant’s own insistence on a sharp distinction between right and ethics. Consequently, Kant was read as a kind of proto-constructivist about justice (Rawls 1980 pp. 143–328), vindicating the political ideal of a well-ordered democratic society constituted by collectively self-legislating citizens of equal moral standing.¹ This has changed over the last few decades, as interpreters have begun to study Kant’s actual political writings in their own right. In particular, two interpretive tendencies have emerged, which are in some tension with each other. On the one hand, a set of innovative work on his occasional political essays, in particular Perpetual Peace (e.g., Ho¨ffe 2006; Lutz-Bachmann 1997), occasioned a resurgence of interest in Kant’s cosmopolitanism. Presenting Kant as a theorist of cosmopolitan constitutionalism (Brown 2009) or even global democracy (Held 1995), authors focused on his prescriptive agenda for a global political order laid out in the essay’s three ‘Definitive Articles’. The latter call for every state to have a republican constitution, demand the creation of a league of free states, and envisage a ‘cosmopolitan right’ to interact across boundaries. The ensuing debates primarily investigated Kant’s rationale for vindicating this specific set of cosmopolitan institutions instead of some equally conceivable alternative: for instance, his choice of a limited, voluntary league of states instead of the coercive form of world government that he had ¹ Versions of this idea can be found also in Reath (1997) and Maus (1994).

Kant’s Grounded Cosmopolitanism. Jakob Huber, Oxford University Press. © Jakob Huber (2022). DOI: 10.1093/oso/9780192844040.003.0001

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preferred earlier. This led to further debates about the essay’s applicability and hence its continued relevance under contemporary circumstances (Habermas 1998). The second and even more recent interpretive trend was driven by a revival of interest in the Doctrine of Right, the first part of Kant’s late Metaphysics of Morals (1797) and arguably the most systematic formulation of his political philosophy. The spoilt state of significant portions of the text was among the main reasons why the Doctrine of Right received only little attention until the late 1980s.² Yet, Bernd Ludwig’s (1988) crucial rearrangement of what he had identified as editorial errors at the printing stage elucidated crucial parts of the argument and initiated a systematic and philosophically oriented body of interpretive work (e.g., Byrd & Hruschka 2010; Flikschuh 2000; Ripstein 2009). Interestingly, the elevation of the Doctrine of Right to Kant’s most significant work in political philosophy has come with a ‘statist backlash’ of sorts.³ Until recently championed as a cosmopolitan figurehead, Kant is increasingly associated with a particularly compelling argument in favour of a distinctly moral justification of the modern state (e.g., Hodgson 2010; Ripstein 2009; Stilz 2011). This is not without textual warrant: while earlier essays such as Perpetual Peace are emphatic and unconditional in their cosmopolitan commitments, large parts of the Doctrine of Right seem to focus on a cluster of ideas—around (the relation between) property rights, political obligation, and state entrance—familiar from the classical social contract tradition. Kant’s own acknowledgement that he had ‘towards the end of the book worked less thoroughly over certain sections than might be expected in comparison with earlier ones’ (DoR 6:209), may easily be taken to confirm this impression. Precisely at the point at which Kant has developed and delineated the domain of right most systematically, he appears also to have become more sceptical of anything like justice beyond the state and appears to have pulled back from the earlier uncompromising cosmopolitanism. So, for example, whereas Perpetual Peace had included sharp criticisms of state power and of warfare, the Doctrine of Right arrives at a much more favourable view of the

² The seeming textual disorder even led some interpreters to concur with Schopenhauer’s ‘senility thesis’ (e.g., Arendt 1982), according to which Kant’s intellectual vigour was already waning at the stage of writing the Doctrine of Right. ³ This is not to deny that much of the recent innovative work on Kant’s cosmopolitanism has very well taken into account the Doctrine of Right (Flikschuh 2000; Kleingeld 2004, 2011; Muthu 2009 pp. 122–210; Ripstein 2021a). The category of cosmopolitan right in particular has of late received increased and more systematic attention in the literature (Benhabib 2004; Kleingeld 2011 pp. 72–92; Niesen 2007; Reinhardt 2019).

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state as a distinct kind of juridical agent in virtue of being a necessary enforcer of individual rights claims. To some interpreters, Kant’s considerations on international and cosmopolitan right seemed to be little more than appendices to a view of justice, prominent in early liberal thought, as effectively terminating in state establishment. On an interpretive level, Kant’s much-discussed property argument, around which Bernd Ludwig (1988) himself had constructed his philosophical case for a reconceived approach to reading the Doctrine of Right, was seminal to that effect. For long regarded as obscure, inaccessible, and largely a failure, the idea that the connection between state authority and the possibility of individual property rights is at the heart of the Doctrine of Right and its most original innovation has rapidly become a commonplace among interpreters.⁴ In a wider context, the ‘statist backlash’ was further fuelled by the fact that it proved conducive to the incipient absorption of Kant’s political thought into contemporary normative theory. His distinctly moral justification of state authority could not only be nicely juxtaposed to Hobbesian, Lockean, and Communitarian alternatives;⁵ it also coincided with a more general return of statism even in contemporary global justice debates, where a growing camp of internationalists revisited earlier cosmopolitans’ farewell to the idea of sovereign statehood and argued for a system of nationally independent though internationally interdependent states (e.g., Buchanan 2004; Sangiovanni 2008; Valentini 2011). The argument that I will develop in this book defies both these interpretive tendencies. I believe that it is precisely in the Doctrine of Right that Kant develops his most sustained, systematic, and original cosmopolitan vision. At the heart of this framework is a thought to which interpreters have thus far paid scant attention: the mere fact that they can affect and constrain each other with their choices by virtue of sharing the limited space of the earth’s spherical surface unites humans in a particular interdependence relation of ‘possible physical interaction’ (DoR 6:352). The pertinent kind of community is one of ‘earth dwellers’ (Byrd 2009 p. 107), that is, embodied agents in direct physical confrontation with one another. The book proposes to read what I call Kant’s grounded cosmopolitanism in the Doctrine of Right as an attempt to spell out the distinct type of community among earth dwellers, together with

⁴ Another seminal piece to this effect was Brandt (1982). ⁵ This holds analogously with regard to recently burgeoning debates on state territorial rights, where Kantian accounts are usually construed in opposition to their Lockean and liberal nationalist opponents (Stilz 2011; Ypi 2014).

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the conditions under which it can be transformed into a ‘rightful’ community of juridical subjects.

Kant’s grounded cosmopolitanism Two kinds of cosmopolitan vision are typically associated with Kant’s practical philosophy: on the one hand, the ideal of a universal moral community of rational agents who constitute a ‘kingdom of ends’ qua shared humanity. Human beings, on this view, have universal rights and obligations by virtue of being joint members of a ‘supersensible world’ (Benhabib 2004; Kleingeld 1999a p. 509). On the other hand, the ideal of a distinctly political community of ‘world citizens’ who share membership in some kind of global polity. This approach, briefly mentioned previously, takes the notion of ‘world citizenship’ literally, aiming to lay out a normative agenda for a global political order from which we could draw specific institutional blueprints, substantive principles of distributive justice, or even concrete lists of human rights. The aim of this book is to introduce a novel account of Kant’s global thinking, one that has hitherto largely been overlooked: a grounded cosmopolitanism concerned with spelling out the normative implications of the fact that a plurality of corporeal agents concurrently inhabit the earth’s spherical surface. It is neither concerned with a community of shared humanity in the abstract, nor of shared citizenship, but with a ‘disjunctive’ community of embodied agents in direct physical confrontation with each other. Kant’s grounded cosmopolitanism frames the question how individuals relate to one another globally by virtue of concurrent existence and derives from this specific constraints on cross-border interactions. Textually, this framework takes its cue from an underappreciated passage in § 13 of the Doctrine of Right’s section on ‘private right’. There, Kant ascribes to all individuals a ‘right to be wherever nature of chance (apart from their will) has placed them’, adding that this possession ‘is a possession in common because the spherical surface of the earth unites all the places on its surface’ (DoR 6:262). This claim is usually absorbed by interpreters into a larger argumentative sequence that leads from the idea of innate right via the property argument into the state. By contrast, I insist on its conceptual and justificatory independence. In the relevant passage, Kant introduces a distinct kind interdependence relation that is not constituted, for instance, by economic or political ties, cultural affinity or shared interests, but by the bare fact that those who share a globe cannot ‘get out of each other’s ways once and for all’ (DoR 6:267).

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Kant’s grounded cosmopolitanism is not concerned with the way we each relate to land or the resources on it, or to provide a kind of a distributive standard for carving up the earth. It spells out a specific way in which we relate to one another given that, as embodied agents who jointly inhabit a bounded territory, we can affect and constrain each other with our choices. Nor does Kant’s grounded cosmopolitanism depict humanity as already unified, either in a shared idea of humanity (as in accounts of moral cosmopolitanism) or in a shared set of distributive principles or institutions (as in accounts of political cosmopolitanism); it depicts a more antagonistic kind of community of agents capable of physically interacting with one another in real time and space. What I call Kant’s ‘global standpoint’ is constituted by a plurality of perspectives in disjunctive interaction. To act from this standpoint is to encounter others as justificatory equals in the process of structuring the shared space in which we find ourselves. In order to spell out the normative implications of this interpretive framework, the book turns to Kant’s discussion of cosmopolitan right (DoR 6:352/353), which is concerned with the interaction between states, non-state peoples, and foreign individuals. Having repeated the earlier argument from earth dwellership almost verbatim, in this section Kant ascribes to individuals an enigmatic right to roam around the earth’s surface and attempt contact with distant strangers in order to offer all kinds of cultural, intellectual, economic, or political exchange, while prohibiting them from staying or settling anywhere without the locals’ explicit permission. I show that both the constraining and the permissive aspects of this ‘right to visit’ can be illuminated against the background of grounded cosmopolitanism. On the one hand, it allows Kant to articulate a distinctly juridical critique of colonialism. What constrains Western travellers in their interaction with non-state peoples even in the absence of a shared property practice is their shared earth dwellership. On the other hand, earth dwellers have a right to move around freely and without hindrance on the earth’s surface, including those parts privatised by individuals or states, in order to seek what Kant calls ‘commerce’, in the first place. By establishing exchange and interaction, cosmopolitan agents ‘on the move’ create the conditions for lawful peace among the entire cosmopolitan plurality, including both states and non-state peoples. In conjunction, the two complementary aspects of the cosmopolitan ‘right to visit’ specify the conditions for transforming the disjunctive community of earth dwellers into a juridical community of legal subjects united by public (though noncoercive) law. Kant’s grounded cosmopolitanism not only asks us to solve the shared predicament of concurrent existence within finite

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space. It also normatively structures this process under conditions of a real plurality of perspectives and diversity of collective forms of life. Importantly, Kant’s grounded cosmopolitanism is not predicated on the property-mediated logic of entrance into the civil condition that is at the forefront of recently popular statist accounts of the Doctrine of Right. That is not to deny, however, that the state plays a crucial role in it. In fact, I will reconstruct how Kant folds his long-standing cosmopolitan commitments (which are themselves reconceived in ‘spatial’ terms) into a juridical theory of statehood that he developed systematically only in the 1790s. We come away with a cosmopolitically transformed notion of the state that contributes to realising a condition of peace among states and non-state peoples through both its internal constitutional arrangements and its outward comportment. Kant’s global standpoint provides a critical perspective on our own institutional arrangements as much as a normative standard for interactions with distant strangers.

The argument of this book Chapter 1 lays the groundwork for my account of Kant’s grounded cosmopolitanism through a close analysis of § 13 of the Doctrine of Right. Against the widespread tendency to absorb the relevant passage into the property argument, I argue that it articulates a distinct thought concerned with the relation between physical beings that act and affect one another in virtue of inhabiting the particular, limited space of the earth’s circumference. As a first step to make good on what I call the argument from earth dwellership, I cast doubt upon the assumption that the ‘right to be somewhere’ is analytically contained in the innate right of humanity. Simply by virtue of (unavoidably) claiming a place for ourselves as we come into the world as corporeal agents, we find ourselves in a distinct kind of spatially mediated interdependence relation with everyone else globally. Chapter 2 unpacks this relation further by focusing on the idea of original common possession of the earth. I argue against the widespread attempt to liken Kant’s notion to that prevalent in the natural law tradition, that is, as constituting a community of proto-ownership. For Kant, the notion does not provide a distributive standard for carving up the world. Instead, it spells out our shared task of coming to terms with the fact that embodied agents who jointly inhabit a bounded territory can affect and constrain each other with their choices; a challenge that normatively transcends any division of

INTRODUCTION

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the earth’s surface into slices of property and territory. A detour into the Critique of Pure Reason helps to illuminate that Kant’s disjunctive community of original common possession describes a system of mutual exclusion in which a plurality of different persons stand in a relation of ‘possible physical interaction’. To act from what I call the ‘global standpoint’ is to respect distant strangers as justificatory equals in the process of coming to terms with the fact that we have to share the earth in common. Chapter 3 turns to Kant’s discussion of cosmopolitan right, where the argument from earth dwellership reappears. Starting with the ‘constraining’ dimension of the cosmopolitan right to visit, I make sense of Kant’s anticolonialism against the background of his grounded cosmopolitanism. The primary systematic question is on which juridical basis Kant can radically curtail the comportment of Western emissaries abroad, denying them in particular a right to force non-state peoples to enter the civil condition, for instance by simply settling in their vicinity. I argue that it is their shared earth dwellership which constrains travellers to cautious offers for interaction and exchange even in the absence of a shared property practice. Construing a regress from the property argument to the more fundamental domain of earth dwellership, I show how Kant is able to conceptualise a distinctly juridical critique of colonialism as wrongful comportment. The chapter thus highlights that Kant’s grounded cosmopolitanism is a cosmopolitanism of self-constraint vis-à-vis distant strangers or unfamiliar forms of collective life and political association. Chapter 4 addresses the complementary, permissive aspect of cosmopolitan right, which is concerned with global mobility. I argue that individuals have a right to roam the earth’s surface in their capacity as earth dwellers. As cosmopolitan agents ‘on the move’, they create the conditions for lawful peace among the entire cosmopolitan plurality, including both states and non-state peoples. Earth dwellership thus limits exclusive claims to land or territory to the conditions of global mobility, which is a fundamental precondition for transforming the disjunctive community of original common possession into a juridical community of legal subjects. Both dimensions of the cosmopolitan right to visit are integrated in that they spell out the conditions for realising a cosmopolitan political order in the future under conditions where such an order can neither be brought about nor maintained by force. Approaching the project of bringing the community of disjunctive possession under law from a perspective of historical time, Chapter 5 zooms in on Kant’s conception of cosmopolitan progress. I distinguish two dimensions of political progress in Kant, which concern the perfection and the creation of

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political institutions respectively. These two domains intersect in the idea of a cosmopolitan state, i.e., a state that contributes to cosmopolitan progress by binding itself and its citizens to rightful comportment towards other states and non-state peoples. The path to a global institutional order proceeds via radically reformed states. If we do our part in establishing a condition of peace, we may reasonably hope for the willingness of other states and non-state peoples to reciprocate our efforts, such that the idea of a perpetual peace does not remain a ‘pious wish’ (DoR 6:355). The Conclusion transcends the book’s primarily exegetical ambition by pointing to some of the ways in which Kant’s grounded cosmopolitanism is of continuing relevance. By foregrounding its relational and reflexive dimensions in particular, I point to the framework’s ramification for a number of ongoing normative debates for instance around global mobility, the boundaries of territory and membership, colonialism or transnational institutional frameworks beyond statism and cosmopolitanism as they are traditionally conceived.

Some remarks on method This project originally started out with the aim of making Kant’s mature political philosophy fruitful for contemporary disputes about global justice. My initial worry was that, despite the fact that the debate has by now gone through a number of consecutive ‘waves’ (Wollner 2013) and is already in the process of being historicised (Forrester 2014; Moyn 2016), its heavily practice-oriented character continues to drive its proponents towards a certain kind of philosophical impatience. Consequently, the deep and systematic reflection on the question what unites individuals globally that I hoped to find in the Doctrine of Right promised to directly enrich global justice disputes. As I went along, however, I quickly noticed that by seeking to simultaneously interpret and normatively defend Kant’s cosmopolitanism, I was running the risk of inheriting the very predicament I associated with the prevalent ‘normative Kantianism’ that I had set out to avoid. For the compromises that such an endeavour unavoidably requires would have allowed me neither to go beyond the philosophical surface textually speaking (such that I would end up saying hardly anything new or surprising as far as Kant is concerned) nor normatively to justify the ensuing position in a way that would satisfy contemporary proponents of global justice. Lest I fail to successfully speak to either audience, I thus decided to engage with Kant’s cosmopolitanism on

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its own philosophical terms, going much more into interpretive depth than initially expected. Concretely, this means that I read Kant’s cosmopolitanism not only as intricately connected to the notion of right but also through the lens of his philosophical system as a whole. In this, I depart from much work at the heart of the recent revival of Kant’s political thought particularly in the Anglophone context, which proceeds from the assumption that isolating Kant the political theorist from Kant the systematic philosopher goes some way in making the former more accessible to contemporary readers (e.g., Ellis 2005; Ripstein 2009). By contrast, I shall claim that we will not be able to come to terms with the form of Kant’s global thinking unless we link it, at least to some extent, to the general form of his philosophical thinking. I doubt that the most promising way to demonstrate the continued practical relevance of Kant’s politics is necessarily to vindicate it ‘without taking on the full commitments of his broader project in practical philosophy’ (Ripstein 2009 p. 356). That is not to say, however, that this book should be read as a purely exegetical exercise in Kant scholarship or a project of historical reconstruction. I say this not only because I will indeed indicate at several points throughout the book (and sum up more systematically in its Conclusion) where I see striking links and contrasts between the Kantian conceptual framework and contemporary normative debates in political philosophy. It also speaks to a more fundamental view about the point of studying the history of philosophy in the first place: that it is precisely engagement with great thinkers that can help us understand and get a new perspective on our own concerns and philosophical problems, be it in virtue of coming to appreciate an entirely different way of approaching the pertinent questions. As Allen Wood pointedly puts it, ‘solving a philosophical problem is not like solving a problem in engineering’ (Wood 2002b p. 218). The issue, that is to say, is not primarily to find a solution that enables us to do something in the future that we could not do in the past, but rather to come to better understand the problem in the first place. And, given that most of our philosophical questions have been created and shaped through a long historical process in which philosophers over and again adopted, criticised, and modified the thoughts of earlier ones, we cannot even fully understand them unless we understand their origins. In interpreting a text, however, our aim should not be to rethink an author’s thoughts—this would be an impossible task, particularly when it comes to a contested and at times obscure work such as the Doctrine of Right, where we can hardly hope for a single correct interpretation (which is not to deny that there are more or less coherent and convincing ones). Our aim should

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rather be to work out what the author meant by what they said, and that may include asking a text our own questions and making sense of it using concepts and ideas that the author herself may not have had at their disposal (Wood 2002 p. 223). The corollary is that the very attempt to recover, understand and articulate the meaning of a text can provide the most original and surprising insights into our own contemporary problems—it can tell us who and where we are philosophically. This, however, requires that our interpretive engagement is serious, detailed, and sustained lest we simply find our prior commitments reflected in the text. Given that my aim in reconstructing Kant’s grounded cosmopolitanism is thus to speak to Kant scholars and normative political theorists alike, I have tried to employ his technical vocabulary sparingly—while remaining aware that there are insights we would genuinely miss if we dispensed of it altogether and likened Kant’s vernacular outright to that of contemporary political philosophy.

1 The Right to be Somewhere In the Introduction, I gave an overview of some of the predominant ways in which Kant’s political philosophy is currently read. We saw that interpreters interested in Kant’s cosmopolitanism have traditionally focused on the institutional parameters of a cosmopolitan world order laid out in essays such as Perpetual Peace. At the same time, I identified a ‘statist backlash’ driven by the rediscovery of the Doctrine of Right’s property argument and the associated moral justification for modern statehood. My reconstruction of what I call Kant’s grounded cosmopolitanism will, at least initially, lead us away from both of these interpretative trends. This is by no means because I believe them to be without merit. Rather, they may distract from what I take to be among the most fascinating and original aspects of Kant’s mature political philosophy, namely a deeply systematic reflection on the way in which human beings relate to one another merely in virtue of their concurrent existence on the spatially bounded earth. If anything, interpreters usually associate this line of thought with the notion of cosmopolitan right, sparsely laid out by Kant at the very end of the Doctrine of Right (DoR 6:352/353). What is often overlooked, however, is that the pivotal concepts of a ‘right to be somewhere’ and in particular ‘original common possession of the earth’ are first introduced much earlier in a rarely appreciated passage in the section on ‘private right’ (DoR 6:262). The fact that Kant introduces a particular kind of cosmopolitan argument in the very section in which he is widely assumed to dedicate all space, effort, and philosophical sophistication at his avail to justifying a property-based duty of state entrance in itself raises intricate systematic questions that will occupy us in the course of this book. The aim of the present chapter is to introduce and create conceptual space for what I call Kant’s argument from earth dwellership, on which his grounded cosmopolitanism is based. I start by laying out the crucial textual material from § 13 of the Doctrine of Right (Section 1.1) and reconstruct how it is usually absorbed into the wider structure of Kant’s property argument (Section 1.2). Against this interpretation, I argue that the argument from earth dwellership articulates a distinct thought concerned with the relation between physical Kant’s Grounded Cosmopolitanism. Jakob Huber, Oxford University Press. © Jakob Huber (2022). DOI: 10.1093/oso/9780192844040.003.0002

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beings that interact and affect one another in virtue of inhabiting the particular, limited space of the earth’s circumference (Section 1.3). As a first step, I cast doubt upon the assumption, underlying what I call the standard reading, that the ‘right to be somewhere’ is analytically contained in the innate right of humanity (Section 1.4). Simply by virtue of (unavoidably) claiming a place for ourselves as we come into the world as corporeal agents, we find ourselves in a distinct kind of spatially mediated interdependence relation with everyone else globally.

1.1 A textual inventory As I just mentioned, the idea that the property argument not only contains the key to Kant’s justification of political authority but is indeed central to the Doctrine of Right (and thus Kant’s mature political philosophy) as a whole is now well-established among interpreters.¹ Ever since Reinhardt Brandt’s (1982) seminal analysis, debates have focused on the precise nature of the (partly obscure) argument, and how the duty of state entrance is supposed to follow from it. The gist of the account—pre-political claims to property can only be vindicated through entrance into the civil condition—is increasingly popular even among contemporary normative theorists (e.g., Stilz 2011). The latter appreciate both the refreshing nature of its account of property rights (one that is reducible neither to the traditional natural rights nor purely conventionalist accounts) and the unconditional kind of political obligation that follows from it. I will have more to say about the property argument and various interpretive takes on it in Chapter 3. At this point, I want to highlight a passage that is usually not at the forefront exegetically speaking. My claim will be that in the midst of developing the property argument, in § 13 of the Doctrine of Right, Kant introduces a highly intriguing cosmopolitan argument that easily slip attention. All human beings are originally (i.e., prior to any act of choice that establishes a right) in a possession of land that is in conformity with right, that is, they have a right to be wherever nature of chance (apart from their will) has placed them. This kind of possession (possessio) – which is to be distinguished from residence (sedes), a chosen and therefore an acquired lasting possession – is ¹ E.g., Flikschuh (2000); Ripstein (2009); Byrd and Hruschka (2010). This is of course not to say that the property argument is the only site of debate with regard to the Doctrine of Right. To name just one example, there is an extensive body of literature on the domain of public right and its institutional implications (e.g., Waldron 1996).

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a possession in common because the spherical surface of the earth unites all the places on its surface; for if its surface were an unbounded plane, people could be so dispersed on it that they would not come into any community with one another, and community would not then be a necessary result of their existence on the earth. (DoR 6:262)

Before we dissect the passage itself, we should situate it within the wider context of the Doctrine of Right. The section on private right, where it occurs, is concerned with the question how to have ‘something external’ as one’s own. Identifying various ways in which this can be the case, Kant distinguishes three categories of ‘acquired rights’ (DoR 6:247): rights over objects of my choice (property rights), rights over another person’s choice (contract rights), and the right to ‘a person akin to a right to a thing’ for instance that of parents over a child (status rights). Property is not only the first but arguably the most important among the three categories Kant discusses.² Kant’s argument at this point proceeds in two steps, distinguishing the questions how it is possible to ‘have’ (Chapter 1 of the section) and to ‘acquire’ (Chapter 2 of the section) an external object as my own respectively. Concerning the former, Kant is not interested primarily in the possibility of ‘holding’ something; that there is a sense in which I can legitimately call an object ‘mine’ as long as I have it under actual physical control (in my ‘empirical possession’) Kant takes to be entailed by the very concept of right and its first-personal formulation, the ‘innate right’ to equally exercise our capacity for choice and action (DoR 6:237/8). Yet, whether I am also entitled to claim an object of my choice as mine ‘even though I am not in possession of it’ (DoR 6:246) is a different matter altogether. For, this kind of ‘intelligible possession’ (DoR 6:250) describes a moral relation between the wills of persons independently of space and time: it does not pertain to the way in which I relate to an object, but to the way in which I relate to others with regard to an object that they acknowledge as rightfully mine. And in claiming an unowned object of my choice as mine independently

² In a number of ways, property is the paradigmatic but also most complex way of having something external as one’s own. Most importantly, acquisition of such a right, which is by deed rather than by agreement (contract) or as required by law (status), is uniquely problematic given that it puts (unaffected) others under an obligation through a unilateral act. Moreover, the problem of ‘original acquisition’ (DoR 6:259), with which Kant struggles intensely, only appears in relation to acquisition of objects. In the subsequent discussion, I will largely focus on the category of property as a roundabout for acquired right.

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of my physical connection to it, I obligate not the object but all other persons, namely, to refrain from further use of the object in question henceforth. Given that, as just mentioned, the concept of right is limited to the entitlement to physically use, occupy or hold objects of my choice, it cannot give us the requisite license to unilaterally impose such an obligation on others.³ For I would arrogate myself to an authority over others (to determine as well as interpret and ultimately enforce their rights and obligations) that I do not in fact have as their moral equal. As Kant puts it, unilateral wills are incapable of legislating ‘coercive law for everyone with regard to possession since that would infringe upon freedom in accordance with universal laws’ (DoR 6:256). The problem, however, is that any remotely complex project that individuals pursue requires that they claim as theirs objects outside of them. Effective self-determination without being subject to the choices of others, the argument goes, requires the possibility of excluding them from the use of certain objects and thus of full-fledged property rights. Hence, it would seem that the very fact that ‘I have the physical power to use an object of my choice’ (DoR 6:251) requires that I can do so rightfully. In fact, Kant’s argument at this point proceeds ex negativo: a law that commanded that external objects cannot be owned by anyone (but have to remain ‘res nullius’), would be ‘contrary to rights’, for freedom would effectively be ‘depriving itself of the use of its choice with regard to an object of choice’ (DoR 6:246). Kant thus confronts a real predicament that he characteristically presents in the form of an antinomy, that is to say, a conflict of (practical) reason with itself (DoR 6:255):⁴ intelligible possession both is and is not possible. His solution consists in a twofold move. On the one hand, the ‘postulate of practical reason with regard to rights’ (DoR 6:247), which Kant also calls a ‘permissive law’, authorises me to claim objects of my choice and thus to (problematically) put others under an obligation. Yet, it does so under the condition that I submit to a public authority (thus entering into the state) that connects my claims to own external objects with a duty to respect the property claims of all others ³ As Kant puts it, a nonempirical (intelligible) connection between my capacity for choice and action and an object of my choice, which is ultimately parasitic on the possibility of the pertinent relation between persons, amounts to a synthetic a priori judgement that requires a deduction in order to be vindicated. The details of this deduction are obscure and perennially contested. Given that the textual order seems to partly break down at the relevant passage it is not even clear whether Kant does in fact provide the ‘Deduction of the concept of merely rightful possession of an external object (possessio noumenon)’ (DoR 6:249) that § 6 announces. ⁴ Across Kant’s work, antinomies describe (seeming) paradoxes of two opposed yet equally justifiable claims or inferences that point to an illegitimate extension of finite human reason beyond its proper jurisdiction. While antinomies make their most famous appearance in a section of the Critique of Pure Reason that is concerned with four sets of dialectical inferences about the nature of the world, they also play an important role in the second and third Critiques.

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(DoR 6:255). Only a public lawgiver that represents an omnilateral or ‘general united will’ has the authority to prescribe coercive law to everyone, thus turning merely provisional rights-claims into conclusive or ‘peremptory’ rights. The upshot of this argument is that state entrance is morally necessary, for the state can morally vindicate reciprocally raised property claims. This duty, moreover, is presented not only as unconditional but also coercible, such that I can force anyone who unilaterally (hence problematically) raises property claims against me to jointly enter the civil condition. In Chapter 2 of the section on private right, Kant turns from asking how objects of our choice can be owned, to how they can be acquired (DoR 6:258 ff.). For, in addition to showing how it is possible to claim an object of my choice for myself, he must also show how ‘I can bring it about […] that it become mine’. In the course of the argument, Kant narrows down this question in two respects. First, he distinguishes two kinds of acquisition: things can either be acquired by being derived from what belongs to someone else (e.g., through a contractual exchange), or they can be acquired originally, that is, by bringing a previously unowned object under one’s control (DoR 6:258). Given that a derived acquisition is legitimate only to the extent that it goes back to a legitimate act of original acquisition (DoR 6:284/285), he focuses on the latter. Kant then adds that ‘first acquisition of a thing can only be acquisition of land’ (DoR 6:261). The thought seems to be that our relationship to land precedes our relationship to other external things in a way that can be likened to the ontological dependence of accidents on substances: ‘Just as in a theoretical sense, accidents cannot exist apart from a substance, so in a practical sense no one can have what is movable on a piece of land as his own unless he is assumed to be already in rightful possession of the land’. At first sight, the claim that I need to own the land in order to possess something on it is puzzling: surely, my ownership right in my car cannot be conceptually contingent on owning the street on which it is parked. This has led some interpreters to conclude that Kant’s thinking here remains caught within a feudalist conceptual structure, which leads him to ‘overestimate’ (Kühl 1999 p. 123) the significance of property in land as opposed to other objects. Notice, though, that unless I have at least some control over the part of the earth’s surface on which an object is located I cannot reliably dispose of it as I see fit. For as soon as I put down an object somewhere, I am at the mercy of others, who do no wrong in occupying that place and displacing the object. Hence, securely owning an object presupposes the ability to determine its location. At the very least, I must have agreed with the agent who owns the land or exercises (jurisdictional) control over it that I am allowed to place the object

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somewhere.⁵ The upshot is that, for the moment, the question how objects can be originally acquired can be narrowed down further to the question how land can be originally acquired (Ludwig 1988 p. 128). Explicitly continuing this line of thought, § 13 is captioned ‘any piece of land can be acquired originally, and the possibility of such acquisition is based on the original community of land in general’ (DoR 6:262). This title contains two distinct claims, as Kant proceeds to explicate. The first claim ‘rests on the postulate of practical reason’. From the fact that intelligible possession must be possible, that is to say, it follows that original acquisition of land must be. But how is it possible? This question is addressed by the second claim, which refers us to the subsequent passage as previously quoted in full. There, Kant ascribes to all human beings a right to be ‘where nature or chance […] has placed them’ or what I shall henceforth refer to as a right to be somewhere.⁶ This right seems to require no act of any kind, we have it ‘apart from [our] will’. Moreover, the fact that the earth’s surface is spherical entails that it is physically impossible for human beings to get out of each other’s ways once and for all; if the earth had turned out to be an unbounded plane, by contrast, ‘community would not then be a necessary result of their existence on the earth’. This has ramifications for our right to be somewhere, which is to be conceived as a right to ‘possession in common’ with all others. Kant then hastens to add, still within the same § 13, that the original community of possession of the earth’s surface is not ‘empirical and dependent upon temporal conditions, like that of a supposed primitive possession in common (communio primaeva)’, but to be conceived as a ‘practical rational concept which contains a priori the principle in accordance with which alone people can use a place on the earth in accordance with principles of right’ (DoR 6:262). In the subsequent paragraph (§ 14), he proceeds to specify occupation as the empirical act required to unilaterally acquire a piece of land, and— echoing the first part of the property argument in Chapter 1 of the section on private right—adds that such acquisition has to remain provisional until brought under a public authority that makes law in the name of all (§ 15). While this gives us an idea both of the immediate context of our passage and its position within the Doctrine of Right as a whole, a lot remains to be unpacked. Why do we have a right to be somewhere, and what precisely is it

⁵ This is why I can park my car in the street, even though the street does not belong to me, only on certain conditions set by the possessor of, or the agent exercising jurisdiction over the land, such as paying a fee or refraining from parking in certain areas at certain times (Pinheiro Walla 2016 p. 167). ⁶ Kant literally uses the notion of a right to be somewhere [irgendwo zu seyn] in the preparatory notes to the Doctrine of Right (DDR 23:320).

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a right to? In which way is the idea of original common possession associated with it? How does this set of concepts relate to the wider property argument? These are some of the questions to keep in mind as I proceed to juxtapose two interpretations of this passage: what I call the standard reading and the argument from earth dwellership (as the conceptual core of Kant’s grounded cosmopolitanism), respectively.

1.2 The standard reading As I have indicated previously, our passage in § 13 is usually not at the front and centre of interpretive accounts of the Doctrine of Right. The fact that it effectively appears after the bulk of the property argument has already been set out may contribute to this. More importantly, interpreters generally assume that the argument can be easily absorbed into the logic of the property argument, i.e., that it constitutes a particular step within the justificatory sequence that leads from the innate right of humanity, to the property right and from there into the state. This is the thought I will lay out in the present section. Given that I take widespread agreement to exist around this interpretation, I refer to it as the standard reading. The standard reading takes as its vantage point the right to be somewhere, which is thought to be contained in, ‘entailed by’ (Ripstein 2009 p. 155) or to ‘follow analytically from’ (Byrd & Hruschka 2010 p. 137) the innate right (see also Benhabib 2004 pp. 36–55; Kleingeld 1998 p. 79, 2011 p. 84; Ludwig 1988 p. 128). I have already mentioned that Kant introduces the innate right in the Introduction to the Doctrine of Right as a right to ‘freedom (independence from being constrained by another’s choice), insofar as it can coexist with the freedom of every other in accordance with a universal law’ (DoR 6:237). Now, as a corporeal agent, I need to be somewhere in order to exercise my freedom. In fact, ‘denying me a piece of the earth (by throwing me into the ocean or rocketing me into space) would result in my death’ (Byrd & Hruschka 2010 p. 129). Hence, each of us is entitled to be wherever nature or chance has placed us, provided that no one else is there. This possession is not (yet) exclusive, nor does it refer to a particularised piece land—to this or that specific place; it is an unspecified right to be somewhere on the earth’s surface. The thought is that the right to be somewhere is the innate right’s ‘spatial instantiation’ (Ripstein 2021a p. 237) of the innate right, given that corporeal agents who claim the latter can do no wrong simply by being present ‘wherever nature of chance’ has placed them.

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The idea of original common possession enters the stage as a logical corollary of the right to be somewhere. For, given that the earth’s surface is limited (such that we cannot avoid each other once and for all, as we could on an infinite plain), we are constrained to occupy a place that is not currently occupied by someone else: my right to be somewhere is only a right to a place that is currently unoccupied. Hence, given that all places on the spherical globe are connected (see also DDR 23:314), my (unavoidable) possession of a place on earth is always already a possession ‘in common’. This is not a common possession in the sense of common ownership, but a disjunctive community of mutual exclusion, i.e., a straightforward implication of the fact that wherever I am, nobody else can be. In this respect, the original community of possession depicts the community of all those who (cannot but) claim a place for themselves. By virtue of that fact, they share a ‘general will’ that ‘corresponds a priori’ (DoR 6:250) to the idea of original common possession. In another sense, though, the idea of original common possession is not just the logical corollary of the right to be somewhere. It is also supposed to provide a license or title [Rechtsgrund] for individuals that they could not get from the latter alone: the right to unilaterally acquire a particular piece of land for themselves. This is where the ‘postulate of practical reason’ comes in. Given that, recall, it must be possible to own things, it must be possible also to originally acquire things. Unless I can unilaterally take things into my permanent control, ‘unoccupied things would in themselves and in accordance with a law be made things that belong to no one’ (DoR 6:250). And as a command of reason, the postulate presents itself equally to all (cf. Messina 2021 p. 11). Hence, the general will united a priori in the idea of original common possession ‘wills’ the earth’s surface to be particularised. In other words, in originally acquiring a piece of land for myself, I simply ‘execute this will’ (Byrd & Hruschka 2010 p. 135). Even without the explicit approval of all others, I can ascribe to them the will to divide up all land and resources and to incur an obligation they did not have before: the obligation to permanently refrain from the piece of land I have appropriated. By way of the general united will contained in it a priori, the idea of original common possession thus gives me a license to acquire a piece of land of my choice simply by being the first to take possession of it. This initiates a privatisation process in the course of which individuals claim specific parts of land as theirs and—a thought Kant develops alongside—states claim exclusive control over particular territories. In the course of this process, the original community of land, conceived as a stage ‘prior to acquisition’ (Ripstein 2021b p. 283) is left behind. As our right to be somewhere is ‘particularized’ (Byrd

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& Hruschka 2010 p. 134), it is no longer constrained just by everyone else’s claim to the place they currently physically occupy, but by the land they have originally acquired by declaring it to be theirs permanently.⁷ According to the standard reading then, our passage in § 13 takes us from a state where nobody can claim anything other than the space they currently occupy with their body, to a stage where the earth’s surface (and hence, everything on it) is ‘up for grabs’ by both individuals and states. As I have just indicated, this move reflects a crucial conceptual shift in the Doctrine of Right’s argument as a whole, from innate to acquired right. This shift is accomplished through the notion of original common possession, which simultaneously depicts a disjunctive community of mutual exclusion and a community of ‘proto-owners’ with a license to carve up the earth by unilaterally acquiring land. Of course, we must not forget that while the idea of original common possession makes original acquisition conceivable in juridical terms (see also Kersting 1984 p. 152), ultimately the empirical act of taking control does not suffice for it to be lawful. In order to have rights-grounding force, unilateral appropriation must be vindicated by a public authority. The license to claim a particular part of the common stock of land as exclusively ours simply because we were the first to take it under our control thus turns out to be provisional only, i.e., conditional on our willingness to enter a public condition of justice with everyone else.⁸ In the name of the general will contained a priori in the original common possession, I can acquire unilaterally; yet I can do so only in anticipation of a civil condition, where such a will is actually realised. The three-part argumentative sequence generally associated with the Doctrine of Right’s section on private right, from innate to acquired right, and from there (unavoidably) into the state, is thus complete. The fact that this sequence sets off from the very circumstances of human coexistence on the earth (the fact that, in order to exercise our freedom, we need to be somewhere) highlights the unconditionality and indeed universality of the requirement to enter the state, in which the argument culminates.

⁷ As I will lay out in the subsequent chapter, on this reading, the original right to be somewhere ‘lingers’ even after appropriation as a right to be on someone else’s land in case of dire need. This is what cosmopolitan right supposedly addresses. ⁸ There is a long-standing debate how much (if any) redistribution takes place at the transition into the civil condition, which largely circles around Kant’s concept of provisional rights. For a recent discussion, see Hasan (2018).

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1.3 The argument from earth dwellership I have just provided a condensed version of the ‘standard reading’ of § 13 that may leave the reader somewhat perplexed. Over this chapter and next, I will unpack and problematise its various steps and elements in more detail. For present purposes, my aim was simply to indicate that the standard reading fits the relevant passage into a larger argumentative sequence that leads from innate right to acquired right and from there into the state. I now want to sketch my alternative interpretation, according to which § 13 of the Doctrine of Right articulates an independent and unified concern: a concern with the normative implications of the fact that a plurality of corporeal agents concurrently exist on the earth’s spherical surface. My claim is that this consideration does not effectively replicate or mirror the structure of the property argument but constitutes a distinct kind of juridical relation that is foundational for Kant’s grounded cosmopolitanism. I call this the argument from earth dwellership. To start with, recall that two empirical circumstances of human existence constitute the background of Kant’s argument. We have discussed the reference to the earth’s boundedness, which ‘unites all the places on its surface’ (DoR 6:262). This fact, in turn, accrues its distinct relevance only in conjunction with another (more implicit) material feature: that human beings are not only morally accountable, but also physically embodied agents who necessarily act in time and space. Borrowing a concept from Sharon Byrd (2009 p. 107), we can think of humans in this sense as ‘earth dwellers’:⁹ corporeal beings who have to share the earth in common with a plurality of agents of the same kind and who (unlike lions, rabbits, and bees) are able to grasp the normative implications of this fact.¹⁰ Foregrounding this idea allows us to read the relevant passage as articulating more clearly the normative complexity, indeed the ambiguity of our physical entrance into the world as earth dwellers. On the one hand, as corporeal agents, humans inevitably make a particular kind of seizure: the piece of land that they take up by virtue of the very fact that we are spatially extended. As Kant puts it in the preparatory notes to the Doctrine of Right, the space I occupy is ‘inseparable from my existence’ (DDR 23:237). Without a place on earth, we could not act or hold others morally accountable for their actions, let alone enter into

⁹ In the same context, Kersting (1984 p. 151) uses the German equivalent ‘Erdbewohner’. ¹⁰ Any (potential) corporeal rational beings on other planets are not earth dwellers and hence not members of this original community of land. On the role of ‘extra-terrestrials’ within Kant’s philosophical framework, see Szendy (2015).

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relations of acquired right. Hence, I cannot be blamed or at least be held juridically accountable for the fact that, by virtue coming into the world, I occupy a place on the earth’s surface. At the same time, though, while entering the world itself is not something we choose to do, the very fact that we do so has normative implications: where and how we pursue our ends necessarily impacts where and how others can do so. In Kant’s owns words, it implies that ‘the choice of one is unavoidably opposed by nature to that of another’ (DoR 6:267). For, even if we do not enter the world at will, we do so with a will. We are, as it were, not just apathetically thrown into the world but actively claim a place on earth as ours (Flikschuh 2000 p. 158). This is an important contrast with the standard reading, which conceives of our occupation of a place on earth passively in terms of something that merely happens to us rather than (also) actively in terms of juridical agency. For Kant, I thus want to suggest, there is a normative ambiguity associated with the fact of coming into the world as a corporeal agent; an ambiguity he seeks to address with a two-pronged argumentative move. On the one hand, a right to be ‘where nature or chance […] has placed us’ is granted to every embodied agent simply by virtue of coming into the world. Lest I am unable to exercise my capacity for choice and action altogether, ‘everyone must allow me some land or other’ (DDR 23: 237). Cases like that of refugees or stateless persons illustrate how failing to have one’s place on earth secured, and hence being vulnerable to the arbitrary choices of others, essentially deprives humans of this (external) kind of moral agency (Flikschuh 2000 p. 156/7; Ypi 2014 p. 294/295).¹¹ Yet, while we have such a right, we also need to take into account that the piece of space we take up at any particular point in time cannot be taken up by any other person. In a second step, Kant thus attaches conditions to the right to be somewhere: while ‘all human beings are originally (i.e., prior to any act of choice that establishes a right) in possession of land that is in conformity with right’, we need to conceive of this legitimate possession of a place as a ‘possession in common’ (DoR 6:262) with all others. That is to say, we are granted a place on earth on the condition that we think of it as a possession in common, and thus of ourselves as standing in a particular kind interdependence relation of ‘possible physical interaction’ (DoR 6:352) with all others. Given that

¹¹ This is not to say that, without a place, we would be deprived of all moral agency—presumably, we could for instance still be virtuous (in the ethical sense of willing in accordance with the moral law). Notice also that I am interested in the way in which the external kind of moral agency I am talking about requires a place in general rather than a specific place. Nomadic peoples or ‘travellers’ such as the Roma, for instance, are thus not per se deprived of it.

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the relevant community is distinctly global in nature, the argument from earth dwellership forms the basis of Kant’s distinctly grounded cosmopolitanism. To sum up, the argument from earth dwellership reconstructs the relevant passage as articulating a coherent and unified reflection on the predicament that a plurality of corporeal beings have to share the earth’s circumference. On this view, the right to be somewhere and the idea of original common possession constitute two sides of the same coin: coming into the world as an earth dweller and thus claiming a place for oneself is both unavoidable and, for lack of a better term, normatively burdensome. It is normatively burdensome not in the sense that we would have to respect particular rights to this or that particular place, but in the sense that we carry a distinct justificatory responsibility towards those with whom we share the finite space constituted by the earth’s circumference. The interdependence relation that grounds this justificatory responsibility is purely spatial and thus independent of any further ties constituted, for instancy, by economic or political interdependence, cultural affinity or shared interests. Recall that according to the standard reading, the move from a right to be somewhere (which is a right to no particular place) to original acquisition of land (which is an exclusive claim to a particular part of the earth’s surface) simply mirrors the move from innate to acquired right (and further into the state). The argument from earth dwellership denies that this is what is going on in the pertinent passage. Our status as earth dwellers neither presupposes a private property scheme nor does it provide its normative foundation. Instead, it articulates an independent, self-standing normative concern that is seminal to what I call Kant’s grounded cosmopolitanism. My argumentative strategy over the course of the subsequent chapters will be to carve out a distinct conceptual terrain for this framework, and in so doing to distance it from the larger justificatory dynamic associated with the property argument.

1.4 An innate right to be somewhere? As a first step in questioning the standard reading of the Doctrine of Right’s § 13, I want to address the idea of a right to be somewhere. As we have seen previously, its proponents take the right to be somewhere to be analytically contained in the innate right. Against this assumption, in the remainder of this chapter, I shall point out that the right to be somewhere actually moves us, in a way that is systematically and indeed normatively nontrivial, beyond the notion of an innate right as it is laid out in the Doctrine of Right’s Introduction.

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I will do so by arguing that the former contains a claim to something which the innate right does not contain on either of its predominant interpretations: a right over an external object, i.e., the piece of the earth’s surface I currently occupy. This is not just a matter of conceptual architecture but will turn out to be normatively far-reaching. As we shall see in the subsequent chapter, simple by virtue of claiming a right to be somewhere, I stand in a particular kind of interdependence relation with all others who share the earth’s limited surface with me. What kind of a right is the right to be somewhere? In answering this question, we can take our lead from a distinction Kant makes in the Introduction to the Doctrine of Right (DoR 6:237), according to which every right belongs to one of two categories: either it is innate, thus belonging ‘to everyone by nature, independently of any act that would establish a right’ (following a term from Roman law, it belongs to us ‘internally’), or it is acquired, i.e., it requires an act to be established. I have already referred to Kant’s subsequent proposition that there is only one innate right: a right to ‘freedom (independence from being constrained by another’s choice), insofar as it can coexist with the freedom of every other in accordance with a universal law’ (DoR 6:237). Surprisingly, though, the innate right is then not unpacked any further. Instead, it is ‘put in the prolegomena’ (DoR 6:238) immediately after being introduced and not taken up again. Something about the innate right seems to render it unsuited for inclusion into the body’s main text, which goes straight into the section on private right as concerned with the ‘acquired’ rights to property, contract, and status. It is this section, of course, in which the right to be somewhere makes its first appearance. Considered purely from the perspective of its placement in the text, this suggests that the right to be somewhere actually belongs to the category of acquired right. And at least at first sight, this also appears to make sense systematically. Given that only acquired rights require an act to be established, it would seem that anything external to me that I claim as mine must fall under the pertinent category. My place on earth, as occupied by my physical self, is of course external to me. And there is surely a sense in which I claim a place on earth in virtue of being born. This suspicion, however, does not withstand further scrutiny. First, recall that what Kant is foremost interested in when it comes to control over external objects is not the possibility of ‘holding’ something; the actual conceptual challenge is to vindicate the possibility of calling something ‘mine’ ‘even though I am not in possession of it’, or intelligible possession (DoR 6:246). Such a nonempirical (intelligible) connection between my capacity for choice and

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action and an object of my choice is ultimately parasitic on the possibility of the pertinent relation between persons. It thus amounts to a synthetic a priori judgement that requires a ‘deduction’ in order to be vindicated (DoR 6:249). The right to be somewhere, however, is limited to physical possession, or occupation. As Kant puts it in the relevant passage, he is not referring to land in the sense of a fenced-in plot of territory—described as ‘residence (sedes), a chosen and therefore an acquired lasting possession’—but merely as ‘habitable ground’ (DoR 6:261). As mentioned before, the right to be somewhere is not an entitlement to this or that specific place (that we could claim even in our absence), but to be granted a place somewhere on the earth such that the conditions of embodied agency are fulfilled. Consequently, Kant specifies in a footnote, ‘merely physical possession of land (holding it) is already a right to a thing, though certainly not of itself sufficient for regarding it as mine’ (DoR 6:251). He thus concludes that the right to be somewhere is ‘consistent with the principle of outer freedom’ (DoR 6:251) and does not require a deduction in order to be vindicated—notably unlike acquired rights, from which it must thus be systematically distinct.¹² Second, while acquired rights require an act to be established, it is highly questionable whether our coming into the world is to be considered as an act in the requisite sense. In a passage of the General Introduction to the Metaphysics of Morals, Kant defines an action of legal relevance (a factum or ‘deed’) as one that its author can be considered to have freely caused, that is, ‘the agent is regarded as the author of its effect, and this, together with the action itself, can be imputed to him’ (DoR 6:223, see also 6:227). Moreover, this ability to bring about imputable actions (to be a ‘cause libera’) is precisely what constitutes moral personality (DoR 6:227). Note that on this definition, a deed contrasts both with a coerced act, and with one that causes an unintended chain of events (Kersting 1984 p. 3). If, in falling off my bike, I knock you over, your potential injuries cannot be imputed to me. This definition surely does not qualify our coming into the world as a deed in the relevant sense. While there may be a sense in which ‘I have seized a piece of land in virtue of being born’ [ihn einmal gleichsam apprehendiert habe durch Geburt], (DDR 23:237), this is nothing we do deliberately or intentionally. We cannot be held responsible for the ‘sheer facticity of our placement, willy-nilly, on the surface of the earth’ (Shell 1996 p. 150) in the same way in which we can be held responsible when we consciously appropriate an object ¹² I concede that this is the point where Kant comes closest to calling the right to be somewhere an innate right, by presenting it as an analytical implication of the universal principle of right or what he here calls ‘law of outer freedom’. Yet, as we shall see, settling on this verdict would be premature.

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and announce it to be subject to our exclusive control. As Kant pointedly puts it in the preparatory notes for the Doctrine of Right, my ‘existence is not yet a deed and hence not unjust [injustum]’ (DDR 23:279). From this he consistently concludes that the right to be somewhere ‘should not be conceived as acquired’ (DDR 23:279). This leaves us with the alternative position, according to which the right to be somewhere belongs in the category of innate right. Indeed, Kant states in the Doctrine of Right that the right to be somewhere is ‘consistent with the principle of outer freedom’ (DoR 6:251). More explicitly still, in the preparatory notes he repeatedly argues that ‘every human being has an innate right to be on some place’ (DDR 23:279). And yet, I want to propose that the right to be somewhere is not perfectly congruent with the innate right in a sense that we could speak of it being analytically contained in it. Indeed, Kant is aware that while it is ‘connected to my existence’ and thus not acquired, the right to some place on the earth’s surface is still a ‘created right in a thing’ (DDR 23:237, see also DoR 6:251). In order to assess whether the right to be somewhere is really equivalent to or contained in the innate right, we have to look more closely at its content: what is it a right to? I will approach this question indirectly, by way investigating the normative grounds of the innate right: why do we have it? Kant’s descriptive specification, in a table and a taxonomy (DoR 6:240), that ‘humans [Menschen]’ are the subjects of the innate right, does not get us anywhere in this regard.¹³ For, this simple yet indubitable specification with regard to the pertinent set of rights holders—whosoever can be identified as a member of the human species must be accorded an innate right to freedom—leaves open why that is the case. The question we need to answer instead, is which particular feature of human beings precisely gives rise to it or, textually speaking, how we should understand Kant’s claim that the innate right belongs ‘to every man by virtue of his humanity [Kraft seiner Menschheit]’ (DoR 6:237). The two most prominent accounts of the innate right can be distinguished according to their answer to this question. My aim in the remainder of this section is to show that on neither the relational nor the foundational view, the empirical circumstances of our concurrent corporeal existence, as constituted by the spherical surface of the earth, extend the purview of the innate right. This is why right to be somewhere move us in a crucial way beyond it.

¹³ Peter Niesen’s (2005 pp. 55–8) attempt to reduce the innate right to the descriptive function seems unsatisfying to me given the technical significance that the notion of humanity plays across Kant’s writings.

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1.4.1 The relational reading Let us start with what I call the relational reading (Flikschuh 2009 pp. 434– 439; Ludwig 1988 pp. 92–102; Zylberman 2016), for on this account it is not hard to see why the right to be somewhere should not be included in the domain of the innate right. According to the relational reading, the notion of humanity (as grounding the innate right) should be understood as referring to human beings’ noumenal status as expressed in their capacity for morality, i.e., to act from pure principles of practical reason alone. To be more precise, we each have the innate right by virtue of our capacity to morally account for the way in which, in choosing and acting, we affect and constrain others. It is with regard to this relation of reciprocal influence that the innate right ascribes to every person a certain standing, namely one of juridical equality. Consequently, the innate right amounts to an a priori, formal entitlement affirming the equal validity of everyone’s reciprocal claim to be recognised as an agent with full legal status: each has the same moral power to ‘put others under an obligation’ (DoR 6:237) through their choices as everyone else. Motivating this reconstruction is an underlying, broader view about the general concept of right as operating, like all of Kant’s moral concepts, at the level of intelligible or merely rational relations between persons (Flikschuh 2009 p. 438). It structures a particular subcategory of intelligible relations between us as morally accountable agents: those which concern the form of each person’s respective exercise of their capacity for choice—notably in contrast to Kant’s ethics as merely concerned with our maxims for action. This picture in mind, the innate right just falls into place as the subjective, first-personal formulation of the idea of reciprocal constraint under general laws. Within the system of right, understood as an external, but formal and a priori morality, the claims to exercise their capacity of choice of each do not exceed those of anyone else.¹⁴ Proponents of the relational reading take it that evidence for their interpretation of the innate right as a formal and reciprocal claim to juridical equality, grounded in our (noumenal) capacity to morally account for our actions, comes from the various ‘authorizations’ (DoR 6:237/238) Kant attaches to it: innate equality, original innocence, and strict reciprocity of juridical ¹⁴ The relational reading thus invites us to understand the innate right and the first of the three ‘Ulpian formulae’ (honeste vive) as mutually constitutive. That is to say, the system of right as a system of reciprocal constraint is spelt out not just in virtue of an obligation to respect others as juridical equals, it also requires me to assert myself as a juridical subject of equal standing in my interactions with others. As an ‘inner outer rights duty’ (Ludwig 2013), the duty of rightful honour prescribes to every agent a duty to assert their own ‘worth as a human being in relation to others’ (DoR 6:236), i.e., not to allow others to treat them in certain ways by claiming their rights.

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obligation. For these constitutive features of innate right, which are ‘not really distinct from it’, are all specified in strictly relational terms, invoking treatment that each person can rightfully expect from all others independently of any act of theirs. Consequently, the innate right can be understood as mainly delivering a normative criterion for legitimate laws of any kind including, for instance, those regulating property relations. In order to make sense of the innate right along these lines, we do not need to go as far as Flikschuh (2009 p. 438) and claim that it contains no substantive entitlements at all. Kant himself mentions a substantive right that can be understood as directly entailed by the innate right (consistently with the present interpretation) and a direct object of external law making: the right to freely communicate one’s thoughts to others (DoR 6:238).¹⁵ What is indeed a necessary implication of the view, however, is that the innate right, understood as a purely relational and a priori moral claim to a certain standing vis-à-vis others, cannot possibly contain anything ‘external’ in the sense of a material right to something located in time and space—such as the right to be somewhere.

1.4.2 The foundational reading Let us now turn to the second prominent interpretation of the innate right. On the foundational reading (Byrd & Hruschka 2010; Ebels-Duggan 2012; Hodgson 2010; Pallikkathayil 2010; Stilz 2011), it is grounded not relationally in moral accountability, but foundationally in the capacity of each to rationally set and pursue the ends they have set for themselves.¹⁶ Rather than in the way persons reciprocally relate to one other through their actions, that is to say, the source of innate right is located in a higher order capacity of each person independently. This ‘ability to make choices in general’ (Hodgson 2010 p. 800) functions as a fundamental value, a normative bedrock on which Kant’s entire political philosophy is thought to be constructed. It is this ability that identifies human beings as the object of juridical concern and that the innate right is supposed to protect. The relational aspect of right enters the picture only indirectly, as a requirement of rational consistency: in valuing my own fundamental capacity for ¹⁵ I am grateful to Peter Niesen, who has repeatedly pointed this out to me. ¹⁶ Ripstein (2009 p. 34) is actually ambivalent between a foundational and the relational reading. While sometimes he talks about innate right as a relational entitlement ‘within a system of reciprocal limits of freedom’, his prevalent talk of purposiveness, bodily self-control, and self-mastery as normatively basic points in a different direction (cf. Flikschuh 2010b)

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choice and action, I must thereby also value that capacity in every other rational agent (Hodgson 2010 pp. 797–800). The innate right to freedom thus has internal (and coercively enforceable) limits built into it that allow for everyone’s equal exercise of their respective capacity for choice and action. It endows each person with an ‘equal sphere of discretionary space in virtue of her capacity for self-directed action’ (Pallikkathayil 2010 p. 133, my emphasis). Ends that a rational agent chooses and pursues are to be respected insofar as they remain within the confines set by the fact that others’ choices are just as valuable. Initial reasons to be wary of this reading emanate from the observation that it sits uneasily with Kant’s wider (practical) philosophical commitments, in particular his non-foundationalism (Flikschuh 2015) and his noninstrumentalism (Zylberman 2016 p. 105). As to the former, Kant’s views about human finitude and the fallibility of judgement are usually deemed to ground a deep scepticism—prominent throughout all parts of his philosophical work— about (particularly Cartesian) forms of justificatory foundationalism that proceed from indubitable first principles. As to the latter, the idea that principles of right are instrumental to the protection of each our individual freedom rather than being constitutive of a distinct kind of moral relation seems in tension with his focus on the form rather than the matter (and hence the consequences) of practical laws. A forceful attack on the foundationalist reading would require a detailed analysis of the notion of humanity in the context of Kant’s Groundwork. For, notice that proponents of both predominant views of the innate right generally assume that the notion of humanity within the passage currently under scrutiny ‘presuppose[s]’ (Ludwig 1988 p. 102) or ‘follow[s] from considerations similar to’ (Hodgson 2010 p. 792) those underlying the concept’s arguably more famous appearance, which is in the Groundwork’s ‘Formula of Humanity’—the second formulation of the categorical imperative (Gr 4:427– 29), which asks us to ‘act in such a way that you treat humanity in your own person and in that of others never merely as a means but always at the same time as an end in itself ’ (Gr 4:429).¹⁷ In the context of laying out this idea, Kant repeatedly talks about humanity or rational nature (which are used equivalently) as something of ‘unconditioned and incomparable’ or even ‘absolute’ worth. Among interpreters of the Groundwork this has given rise to the perennial question which characteristic feature it is that makes humanity the ¹⁷ Pallikkathayil (2010 p. 132) even goes so far as to say that the ‘foundational elements of Kant’s political philosophy are justified by the Formula of Humanity’.

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appropriate material for a principle of practical reason and thus the ultimate object of moral concern. Proponents of the foundationalist reading tend to take their cue from a particular answer to this question developed by Allen Wood (1999 pp. 118– 132) and, most systematically, Christine Korsgaard (1996a, 1996b). On this interpretation, the notion of humanity depicts a ‘value-conferring’ property of persons individually, namely their capacity to rationally set ends for themselves. Again, the clue is that this capacity, properly understood, already has limitations built into it: in viewing ourselves as having value-conferring status by virtue of our power to set ends, we are bound to view anyone with the same power as having an equal status (Korsgaard 1996a p. 123; Sussman 2003). By contrast, proponents of the relational reading draw on an interpretation of the idea of humanity as invoking agents’ part-noumenal nature accrued through their capacity to act from duty alone. In virtue of their shared humanity, they stand in a moral relationship that cannot be reduced to or grounded in a prior, nonrelational value such as the individual capacity to set one’s own ends. Individual human beings’ standing as objective ends is both constituted and constrained by the higher-order idea of humanity in which they participate by virtue of their power to act from pure practical reason.¹⁸ While I consider the foundational take on humanity in the Groundwork to be flawed as an interpretation (Timmermann 2006) and questionable as a normative argument in its own right (Langton 2007), I do not have the space here to make good on these claims. In fact, a wider critique of rights foundationalism would distract from the main purpose of this section, which concerns the possibility of filing the right to be somewhere as part of (or necessarily implied by) the innate right. Instead, I want to show that even if we run with the foundational reading of the innate right, the right to be somewhere cannot be included in it. Let me first explicate how precisely proponents of this view link the right to be somewhere to the innate right. Keep in mind, to that effect, that the foundational reading comes with a shift in emphasis: away from the way in which our choices affect others, to the foundational value of that very capacity (and

¹⁸ This reading also seems to be more in line with the argumentative structure of the Introduction to the Doctrine of Right, which does not start with the innate right—in fact, it does not appear until the appendix (DoR 6:237)—but by introducing and systematically developing the moral concept of right as depicting a certain kind of relation (DoR 6:231). This gives further plausibility to reading the former as following (analytically) from the latter, such that it is the normative relationship that functions as a bedrock of Kant’s discussion rather than a first-personal capacity. Ebels-Duggan (2012 p. 897), for instance, overlooks this when she argues (to the opposite) that ‘based on the innate right to freedom, Kant formulates his Universal Principle of Right.’.

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our opportunity to exercise it). This turns our attention to the conditions of purposiveness itself. Proponents of the foundational reading thus suggest that, since the only way in which individuals can act in the external world is through their bodies—‘having control over my body is essential to my ability to set and pursue ends’ (Hodgson 2010 p. 811)—the innate right at its core describes a right ‘to your own person’ (Ripstein 2009 p. 57). This right is understood in an explicitly physical sense, endowing its subjects with basic powers of bodily self-control. While a more extreme version (e.g., Hodgson 2010) of this claim almost likens the innate right to a kind of property right in one’s body, Ripstein’s (2009 p. 68) more moderate version cautions that ‘I do not have property in my own person; I just am my own person’. The implication is that, notably in contrast to the relational view, the innate right does include a material right to something ‘external’ in time and space: our bodies. Let me be clear that I have no fundamental objection to the claim that the subjects of innate right are corporeal beings who use their bodies for the pursuit of the projects they have set for themselves.¹⁹ What I do want to block is a further extension of this right so as to include the right to be somewhere. I have already indicated what the underlying thought is: given that we do not act in empty space but on the earth’s surface, a right to not have my body interfered with by others should also include a right to the place on earth that I occupy. After all, the space our bodies occupy is necessarily space on the earth’s surface (cf. Ripstein 2009 p. 372). Under conditions where space is scarce, the right to a place on earth is thus thought to just come with the innate right. As Byrd and Hruschka (2010 p. 128) have it, the right that nobody ‘throw me against my will into the ocean or rocket me into the universe’ is supposed to be entailed by the ‘internal (in contrast to the external) mine and thine’. Notice that if this argument were sound, proponents of the foundational reading would get their way; they would have successfully shown that we should treat the right to be somewhere as part of the innate right. In order to repudiate this, I will have to make a more general argument about the pertinent sense of space in the context of Kant’s construction of the concept of right in the Introduction to the Doctrine of Right.

¹⁹ A further and much more perplexing example for a right that is both ‘innate’ and ‘external’ is the right to a good reputation (DoR 6:259, see also Varden 2010); perplexing is specifically the idea that something ostensibly immaterial such as good reputation could be ‘external’ at all. According to Peter Niesen’s (2005 pp. 110/111) plausible interpretation, Kant uses ‘external’ here in a metaphorical sense, referring to the fact that an infringement of our reputation would affect our activity in the realm of acquired right, e.g., our ability to enter into contracts and find work.

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1.4.3 Constructing right in a priori space Let us take a closer look at the Introduction to the Doctrine of Right. Towards the end of the preceding section, I already mentioned that the innate right is introduced only in an ‘appendix’ (DoR 6:233) attached at its very end; the bulk of the Introduction serves Kant to set out the conceptual contours of the domain of right more generally as the object of the investigation to follow. Kant starts (in § B) with the moral concept of right. It is defined as the ‘sum of the conditions under which the choice of one can be united with the choice of another in accordance with a universal law of freedom’ (DoR 6:230) and explicated through three features: first, the concept of right refers to the external and practical relation of two or more persons, ‘insofar as their actions, as deeds [facta] can have (direct or indirect) influence on each other’ (DoR 6:230). Having encountered Kant’s definition of a deed in the last section, we can infer that right is concerned with the reciprocal influence of imputable acts of morally accountable agents. Second, it only concerns the relation between persons’ respective capacities for choice and action [Willküren]. In the sphere of right, that is to say, agents encounter each other through the reciprocal effects of their actions on all others, not by way of their ‘passive’ wishes or needs. While both actions and wishes are expressions of the human faculty of desire [Begehrungsvermo¨gen], only the former is ‘joined with one’s consciousness of the ability to bring about its object by one’s action’ (DoR 6:213). And third, right deals only with the form of the relation of choices, not their respective matter; the motivations for an action as well as its ends are entirely irrelevant as far as right is concerned. In a nutshell, the moral concept of right pertains to the formal external relation between the power of choice of two or more persons. It is vital to understand what is going on at this stage. Some interpreters (Ho¨ffe 1999, pp.47–50; Kersting 2004, p.14) take Kant to be developing the concept of right by applying the general concept of morality to the basic empirical fact of the coexistence of embodied rational beings within limited space. A peculiar kind of anthropology of right (Ho¨ffe 2012, p. 117 ff.) is said to set out the relevant ‘conditions of application’ that make right necessary in the first place. Yet, notice—and this is a crucial insight in the context of the present chapter—that there just is no reference to the empirical circumstances of human coexistence on the earth in the relevant passage. Neither the limited space circumscribed by the spherical surface of the earth nor the normative implications this yields in the face of our own corporeal existence play any constitutive role as Kant develops the moral concept of right. As we saw in the first section,

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these aspects are first mentioned far into the section on private right. Kant’s argument in § B is an entirely analytical answer to the question, posed in the antecedent paragraph, regarding the necessary and sufficient conditions of legitimacy for any actual body of positive laws (Ludwig 1988 p. 92).²⁰ This is not to deny that there is a sense in which time and space in general enter into Kant’s analysis of the concept of right: after all, he takes external agency to be constitutive of rights, so spatial considerations are analytically relevant (Ludwig 1988 p. 86). That is to say, space matters with regard to the form of juridical relations—the only way in which deeds as ‘facta’ (DoR 6:230, see also 6:227) can reciprocally relate to one another in a juridically relevant sense is in space. Yet, the particular conditions of bounded space as crucial to the right to be somewhere are not in view at this stage of the argument (see also Hirsch 2012 p. 36/37). This becomes particularly clear in a memorable yet puzzling statement in § E (DoR 6:232/233) of the Introduction: The law of a reciprocal coercion necessarily in accord with the freedom of everyone under the principle of universal freedom is, as it were, the construction of that concept, that is, the presentation of it in pure intuition a priori, by analogy with presenting the possibility of bodies moving freely under the law of the equality of action and reaction.

In order to understand this passage, we need to go a step back first. In § C (DoR 6:230), Kant had derived from the moral concept of right (in conjunction with a universalising rule) the universal principle of right: Any action is right if it can coexist with everyone’s freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in accordance with a universal law.

This principle is then rephrased into its imperatival form, the universal law of right (‘so act externally that the free use of your choice can coexist with the freedom of everyone in accordance with a universal law’, DoR 6:231). In omitting all references to the agents’ maxim, the universal law specifies right in the strict or narrow sense: as being externally enforceable. The enforceability in turn is a direct corollary of right’s interpersonal character: given the equal status of ²⁰ In § A of the Introduction, Kant distinguishes between a doctrine of positive right (the study of an actual positive legal order) and a doctrine of natural right (which can be cognised a priori by reason), whereby the latter is supposed to provide something like a legitimacy criterion for the former.

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everyone’s claim to exercise their freedom for choice and action, my own freedom is (coercively) limited to the condition of its compossibility with everyone else’s equal freedom. The rightness of my action is not a matter of my personal inner judgement but that of an external authority capable of determining the validity of my freedom claims relative to everyone else’s equally valid claims (Flikschuh 2011 p. 142). I am juridically obliged (and can be coerced to act accordingly) whether I acknowledge my obligation or not. Given that the universal law of right thus connects right analytically with the permission to use coercion, it can also be ‘represented as the possibility of a fully reciprocal use of coercion that is consistent with everyone’s freedom in accordance with universal laws’ (DoR 6:232). Right in this strict sense need not appeal to the agents’ own consciousness of duty ‘as an incentive to determine his choice in accordance with this law’, but ‘rests instead on the principle of its being possible to use external constraint’ (DoR 6:232). Back to § E. Kant there seeks to explicate the universal law of right further by connecting it back to the moral concept of right. Let us look more closely at the two analogies he employs in this context. First, there is the claim that we arrive at the law of reciprocal coercion by constructing the moral concept of right ‘in pure intuition a priori’. What does it mean to ‘construct’ a concept? In a well-known passage of the first Critique (CPR A713/B741), Kant explains that the construction of concepts is characteristic for mathematical reasoning (cf. Shabel 2004). When we construct a concept, we ‘exhibit the a priori intuition corresponding to it’ (CPR A713/B741). Kant’s pertinent case for concept construction understood in this technical sense is geometry: all we need to do in order to prove that two sides of a triangle are together longer than the third side is to ‘construct’ or represent such a three-sided figure—whether on paper or in the imagination—in a priori space. This is why, as Kant had argued much earlier in the first Critique, geometrical cognition is synthetic a priori: it rests on propositions that include an extension of cognition independently of all experience (CPR B40). In the present passage, Kant evidently likens juridical space (the form in which we relate to one another externally) to geometrical space (the form in which objects appear as outer).²¹ In so doing, he emphasises that the concept of right is constructed with ‘mathematical exactitude’ (DoR 6:233) in nonempirical, unbounded space. In analogy to the first Critique’s denomination of space as that (a priori) necessary form of intuition through which it is possible for us to perceive particular objects, here space as a form of intuition a ²¹ I borrow the useful term ‘juridical space’ from Moggach (2000).

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priori similarly figures as the necessary formal condition through which the construction of (external) rights relations is possible for us in the first place. The ‘law of reciprocal coercion’ places individuals in a precise and systematic relation in nonempirical, unbounded space. Alluding to the conciseness characteristic for the geometrical construction of a straight line between two points, ‘a doctrine of right wants to be sure that what belongs to each has been determined’ with precision (DoR 6:233). But mathematical space is not the only image Kant uses in this passage in order to illustrate the construction of the moral concept of right. We also see him comparing the law-governed external relations between agents (that the concept of right constructs) with law-governed relations between ‘bodies moving freely under the law of the equality of action and reaction’. Just as mechanical laws bring physical objects into systematic interaction with one another, so does right enable individuals to coordinate their interactions by placing them in a precise and systematic relation in nonempirical space. This construction of juridical space in terms of interacting, mutually determining forces that operate with the necessity of mechanical laws evokes associations with the category of community or reciprocity as developed in the Critique of Pure Reason (CPR A80/B106, B110–111). This analogy is a crucial one whose full implications (particular for Kant’s grounded cosmopolitanism) I will develop at length in the subsequent chapter. At this point suffice it to say that the invocation of physical space serves Kant to further exemplify the construction of rights relations in a priori (unbounded) space. Just as a physical law imposes a priori an order on objects in space, so does the law of ‘reciprocal coercion’ impose an order on individuals and their potentially conflicting freedom claims. In the Prolegomena, Kant repeats the mechanical analogy of force and counterforce, which emphasises both the equal validity and the reciprocity of freedom claims: Thus, there is an analogy between the legal relation of human acts and the mechanical relation of motive powers. I can never do something to someone else without giving him a right to do the same to me in the same circumstances; just as no body can act on another through its motive power without thereby causing the other to react equally against it. (Proleg 4:358 fn.)

Let me sum up my discussion of the Introduction to the Doctrine of Right in this subsection, which has yielded two important insights. First, I pointed out that the moral concept of right is modelled in pure intuition a priori.

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It is unbounded (a priori) space that constitutes a formal condition for the construction of something like a general schema of rights relations. It is not until the section on acquired right that we move from a vision of rights relations as essentially unbounded (extending across possible persons in space indefinitely) to bounded (empirical) space and hence the conditions under which these relations play out on the spherical surface of the earth. Only once ‘the a priori construction of rights relations [is mapped] onto empirical space’ (Flikschuh 2011 p. 145) is a possible world in which ‘people could be so dispersed on it that they would not come into community with one another’ (DoR 6:262) off the table. Within the confines of the Introduction, however, the pertinent spatial framework is that of space as an a priori form of intuition. I think that this narrative provides the most plausible account of the (important) role that the earth’s spherical surface plays within the argumentative structure the Doctrine of Right. I do not want to pretend, however, that it allows us to fully come to terms with this notion in the context of Kant’s wider philosophical framework. In order to see why, let me distinguish two ways in which empirical facts can be contingent or non-necessary: first, there are facts that are subjectively contingent in the sense that they result from human agency. The fact that I have an obligation to pick up your daughter from school is contingent on my having promised you to do so—I could have done otherwise. Second, there are facts that are objectively contingent in the sense that they could have been different yet are not a function of human willing and agency. For instance, I take it that the fact that humans are finite agents with certain cognitive capacities is objectively contingent; we may very well have been omniscient beings. The fact that the earth’s surface is spherical, I want to suggest, is contingent in this latter way; it may very well have been an unbounded sphere. The empirical circumstances of our coexistence on the earth are (for the time being) not in principle open to modification by human willing and agency. Instead, they are part of the conditio humana in the sense that they constitute an objectively given condition within the limits of which human agents are constrained to establish possible rights relations. The upshot is that the earth’s circumference is not simply an empirical given that triggers or conditions prior obligations (analogous to the way in which the fact of my promise to pick up your daughter relates to my prior obligation to keep my promises).²² Instead, it is itself coconstitutive of a specific kind ²² I take it that this speaks against a possible teleological rendering of the notion, according to which the earth is spherical in shape because, morally speaking, person’s fates are bound together. Kant’s claim, in Perpetual Peace (PP 8:362/363), that we are warranted to read nature as having created conditions in which we unavoidably have to put up with one another given our duty to find terms on which

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of moral interdependence relation (and the ensuing obligations): as we have just seen, the relevant kind of juridical normativity would simply not be pertinent under circumstances in which agents could infinitely disperse rather than being constrained to articulate their claims to freedom of actions and action within limited space. As mentioned, this does not necessarily make it easier to fit the earth’s finite surface into the wider conceptual framework of Kant’s practical philosophy, built as it is upon a set of related distinctions such as those between a priori and a posteriori, noumenal and phenomenal, or empirical and intelligible. That we find ourselves coexisting on a bounded sphere is not a strictly transcendental condition of possibility for a given practical principle in the way the moral law presupposes human freedom. Nor is it, pace Horn (2014), an empirically contingent condition of its application in the way the moral law is applied to human psychology. Helping ourselves to notions such as that of an ‘impure [nichtreines] synthetic a priori’ (Ho¨ffe 1999 p. 48) in this context may be useful to articulate and illustrate this predicament, but not solve it. Let me finally turn to the second and more immediately relevant insight, which specifically concerns the right to be somewhere. It turns out that even if we insist, following proponents of the foundational reading, on the corporeality of juridical agents, the right to be somewhere cannot be included in the innate right. For the empirical circumstances under which rightful relations play out on the earth, that is the concurrent existence of a plurality of corporeal agents within a bounded sphere, are not covered by the moral concepts introduced by Kant in the Introduction to the Doctrine of Right.

1.5 Conclusion My aim in this chapter was to introduce what I call Kant’s argument from earth dwellership. Against the standard reading of the Doctrine of Right’s § 13, I argued that Kant there sketches a distinct kind of juridical relation among corporeal agents who coexist on the earth’s spherical surface. Rather than mirroring an argumentative sequence from innate to acquired right and from there into the state, the relevant passage articulates an independent strand of thought that is concerned with the normative complexity of coming into a world of finite space as corporeal agents. The main thought is that human to get along, may be taken to speak to such a reading. In my view, however, the empirical circumstances of coexistence are significant in virtue of being constitutively intertwined with our juridical obligations rather than arising from our acknowledgement of them.

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beings enter the world not only as claimants of a right to be somewhere, but also as ‘subject to obligations which are neither innate nor freely assumed through an act that establishes an obligation’ (Herb & Ludwig 1993 p. 294). While I indicated that the latter is associated with the idea of original common possession of the earth, it remains to be seen what exactly this entails. My first step in making good on the distinctness of the argument from earth dwellership was to suggest that the right to be somewhere is not (as presumed by proponents of the standard reading) analytically contained in the innate right as Kant develops it in the Introduction to the Doctrine of Right, regardless of how precisely we construe the latter. For the right to be somewhere is a claim over an object outside of us, namely the place on the earth’s surface we currently occupy. Why does that matter? It matters, I want to suggest, because claimants of a right to be somewhere stand in a distinct kind of interdependence relation that is conditioned by the concrete spatial circumstances that they find themselves in. As earth dwellers, we do not simply relate to one another as juridical equals, but we relate to one another as juridical equals who coexist on the spherical surface of the earth. This relation, I will proceed to show in Chapter 2, is articulated in the idea of original common possession, and it is foundational for what I call Kant’s grounded cosmopolitanism.

2 Original Common Possession of the Earth In Chapter 1, I introduced a distinct juridical relation that plays an important role in the Doctrine of Right yet easily slips attention: the relation between embodied moral agents interacting with other such agents on the spherical surface of the earth. I started to develop its contours by focusing on the concept of a right to be somewhere, which, I argued, cannot be straightforwardly made to fit the category of innate right (or much less, for that matter, acquired right). In ended by hinting at the systematic implication of this insight: relations among what I called earth dwellers are mediated by the spatial circumstances of our coexistence on the earth yet cannot be reduced to relations among propertied citizens. The aim of the present chapter is to develop in more detail how this argument forms the basis of what I call Kant’s grounded cosmopolitanism. I will do so by exploring further the distinct kind of interdependence relation among juridical equals who concurrently inhabit the globe. To that effect, I turn to the notion of original common possession of the earth. Central to my reconstruction will be a conversation and contrast between Kant’s construal of the concept and that of natural law thinkers such as Grotius. Proponents of what I have called the standard reading take Kant to largely follow his natural law predecessors. Consequently, they construe his conception of original common possession as constituting what I call a community of protoownership. Participation in this community simultaneously legitimises and constrains particularisation of parts of the earth’s surface as private property (by individuals) and territories (by states). By contrast, I propose that Kant departs from the natural law tradition in a much more profound way. The idea of original common possession does not at all depict the way in which we each relate to land or the resources on it, but a particular way in which we relate to one another given that we find ourselves co-inhabiting a finite space. Accordingly, the notion is not intended to provide a distributive standard for carving up the earth, but to spell out our shared task of coming to terms with the fact that embodied agents who jointly inhabit a bounded territory can affect and constrain each other with their choices. This

Kant’s Grounded Cosmopolitanism. Jakob Huber, Oxford University Press. © Jakob Huber (2022). DOI: 10.1093/oso/9780192844040.003.0003

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challenge normatively transcends any division of the earth’s surface into slices of property and territory. The chapter is structured as follows. I start (in Section 2.1) by sketching Grotius’s conception of common ownership, which is pitched as a contrasting foil for the remainder of the chapter. While proponents of the standard reading acknowledge that Kant departs from Grotius’ idea of a positive community of joint ownership, they take him to retain the idea of a community of proto-ownership, i.e., one that initiates and structures a particularisation process in the course of which the world is carved up (Section 2.2). By contrast, I insist that rather than containing a license to appropriate, Kant’s notion encapsulates a distinct kind of interdependence relation that takes precedence over particular property-regimes or institutional affiliations. In order to reconstruct the precise nature of this relation, I make a detour into Kant’s theoretical philosophy (Section 2.3). Taking my cue from his characterisation of original common possession as ‘disjunctive’, I propose that the original community of possession describes a system of mutual exclusion in which a plurality of different persons stand in a relation of ‘possible physical interaction’, compelling them to take up a reflexive stance towards those with whom they share a spatially bounded world. This shows that Kant’s grounded cosmopolitanism neither depicts a global ‘kingdom of ends’ constituted by ‘noumenal’ beings united in their shared humanity, nor a shared polity with actual legal-institutional membership, but a ‘disjunctive’ community of physical beings who stand in a distinct kind of relationship when it comes to structuring the shared space they inhabit. In capitalising further on this analogy, I reconceptualise the idea of an the epistemic ‘standpoint on the whole’ (Longuenesse 2005) contained in the category of community as what I call a global standpoint: a reflexive and firstperson standpoint agents construct by shifting their ground to the standpoint of the other (Section 2.4). In acting from the global standpoint, we acknowledge our systematic interdependence with other agents in a world of limited space. The particularisation narrative put forward by natural lawyers and ascribed to Kant by proponents of the standard reading, in the course of which an initial state of original common possession is left behind, threatens to obscure precisely this global standpoint. In order to go a first step in spelling out the normative implications of Kant’s grounded cosmopolitanism, Section 2.5 turns to his discussion of cosmopolitan right. I argue that to act from the global standpoint is not to respect distant strangers as bearers of natural rights-like claims over (particularised or unparticularised) parcels of land or resources, but to respect them as justificatory

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equals in the process of coming to terms with the fact that we have to share the earth in common. This provides further evidence that the idea of original common possession does not depict a way we each (initially) relate to a pool of land and resources, but a way we relate to one another globally (i.e., a disjunctive community of a plurality of earth dwellers).

2.1 Grotius on common ownership The idea of humanity’s original common ownership of the earth, ultimately of biblical origin, has a long pedigree in the history of political thought. While, starting with Aquinas, the notion was invoked by a large array of theorists from diverse traditions, it received its most systematic development in the work of early modern thinkers from Grotius to Pufendorf and Hobbes. Particularly Hugo Grotius’s conception of original common ownership as laid out in De Jure Praedae (Grotius 2006) and De Jure Belli ac Pacis (Grotius 2005) turned out seminal not only for the natural law tradition but in fact much of the early modern discourse on property (Brandt 1976). It is his account that I want to sketch in this section in order to subsequently reconstruct what Kant makes of it. Like his seventeenth-century contemporaries, Grotius employs the notion of original common ownership in order to justify property rights and state boundaries, which he does by presenting them as the result of an (idealised) historical process that saw the division of an initially common stock. He starts with the assumption that God gave the earth to humans in common for the satisfaction of their needs (Grotius 2005 p. 420). While this remains contested,¹ his contemporary interpreters and critics—from Pufendorf to Achenwall and, most importantly for our purposes, Kant—read Grotius as proposing a kind of ‘positive community’ where all human beings jointly own the earth and all things upon it. Pufendorf in particular made much of juxtaposing what he took to be Grotius’ positive conception of common ownership with his own idea of a ‘negative community’ in which ‘all things lay open to all men, and belonged no more to one than to another’ (Pufendorf 1934 p. 537), i.e., the world was essentially ownerless. As part of their joint ownership, people are free to take possession of things and use them for the satisfaction of their needs, which is contained in their natural right to life, limbs and liberty (Grotius 2006 pp. 33/34). However, this ¹ While some interpreters uphold the notion of a positive community (e.g., Schlatter 1951 p. 145), others ascribe to Grotius a ‘negative community’ (Araujo 2009 p. 256; Salter 2001).

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restricted right to use what is owned in common does not authorise anyone to accumulate objects or exclude others from similar use before or after physical possession (Salter 2001 p. 539). The lawful use of things is confined to the immediate usage or consumption of what people find growing on the common, grounded in a right of self-preservation. Much of Grotius’s account is then concerned with telling a story of how this initial, universal use-right was gradually transformed into a scheme of property rights and territorial boundaries. This narrative is pervaded by a fundamental ambiguity that arises from Grotius’s notorious combination of what he calls a priori and a posteriori methods (Grotius 2005 p. 159). While, on the one hand, he offers a narrative of (idealised) historical developments drawing on a number of philosophical, literary and theological sources, he does so against the background of the assumption that ‘the acknowledged facts of human history are not arbitrary or accidental, but necessary’ (Buckle 1991 pp. 5–6). Given that human nature so drastically constrains possible solutions to given problems that the particular outcomes can be seen to be inevitable, history reveals the logic of a distinctively human situation. Grotius (2005 pp. 110-111) wants to show that history proofs the existence of the independently valid laws of nature. In inferring the a priori from the a posteriori, the rational history of property becomes its justification—what happened ought to have happened. The emergence of rights in property and territory figures as part of a wider account of the evolution of society from simpler to more refined ways of life, which starts with a very basic conundrum: the exercise of a use-right with regard to objects that are incorporated in some way, particularly food, de facto already amounts to the exercise of an exclusive right because it is in their very nature that they cannot be re-used (Grotius 2006 p. 317). A clear-cut distinction between use and property right is thus impossible from the outset. A major shift then occurs once people start to grow discontented with a way of life that merely allows them to feed on the spontaneous product of the earth and, ’being no longer willing to dwell in caves, to go naked, or covered only with the Barks of Trees, or the Skins of wild Beasts, wanted to live in a more commodious and more agreeable Manner’ (Grotius 2005 p. 426). In the process of leaving this relatively simple life, they treat more and more objects as if they were bound up with their purposes of consumption and thus limited in reusability. Initial forms of occupation hence lead to other, more extensive forms. This transition from a simple way of life to a more refined one is only possible with more extended forms of exclusion and abstinence (Salter 2001 p. 544); the primitive form of use-right is no longer feasible. As soon as community members (publicly) start to recognise this fact, an elementary form of private

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property is underway. The initial act of seizure to satisfy bodily needs is treated as grounding a right to recover possession after usage. Hence, the need for private ownership arises as a natural response to circumstances generated when human beings abandoned their original life of primitive simplicity, proceeding through an extension of a right to use unclaimed things. How exactly this process goes ahead is not always entirely clear. In the earlier De Jure Praedae, the transition from mere use to the ‘institutional fact’ of legitimate property is rather vaguely described as a mental act that is produced by reason and retained in mind of all parties involved (Grotius 2006 p. 319; see also Araujo 2009 pp. 361/362). An occupation that began with physical effort may, after a while, endure mentally, just because individuals continue to treat an object as if it were still occupied. Yet, it remains unclear who exactly has to recognise the validity of property or how they do so. Sometimes it sounds as though all the claimant is required to do after the initial act of seizure is to maintain the intention of possession, for instance through ‘some activity involving construction or the definition of boundaries’ (Grotius 2006 p. 319). In De Jure Belli ac Pacis, Grotius is more explicit that private property cannot arise from ‘a mere internal Act of the Mind’, given that ‘one could not possibly guess what others designed to appropriate to themselves, that he might abstain from it; and besides, several might have had a Mind to the same Thing, at the same Time’ (Grotius 2005 p. 426). Instead, ownership arises ‘from a certain Compact or Agreement, either expressly as by a Divison; or else tacitly, as by Seizure’ (Grotius 2005, pp. 426-427).² That does not mean that there was once an explicit original agreement about the division of the common stock. Rather, private property arises gradually out of a series of many explicit and tacit contractual steps between consenting parties. Absent visible objections ‘all Men were supposed, and ought to be supposed to have consented, that each should appropriate to himself, by Right of first Possession, what could not have been divided’ (Grotius 2005 p. 427). The division of movable objects (like cattle) is followed by immovable property (like land), eventually leading to the drawing of territorial boundaries and the formation of states. Yet, even after division, rights in property and territory retain a close connection to the original purpose of basic needs satisfaction, as expressed in a right of necessity that sanctions the revival of the primitive use right (i.e., taking from the surpluses of property holders) in cases of extreme and unavoidable hardship

² The conventional character of Grotius theory of property is emphasised by Salter (2001) and De Araujo (2009), while others downplay the contrast with his earlier view (e.g., Buckle 1991; Tuck 1993 pp. 154–202).

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(Grotius 2005 pp. 433-437). The rightfulness of each co-owner’s share of resources, and each state’s share of space, of what was originally a common stock remains conditional upon everyone else’s equal ability to satisfy their basic needs. To sum up, Grotius starts with original community conceived of as a historically real state of affairs of joint ownership of the earth’s land and resources. The move, from there, to individual property and territorial boundaries proceeds against the background of a wider account of societal evolution, and via distribution in accordance with a principle that derives its validity from the structure of human nature. Exclusive titles over objects and land, in turn, must allow for everyone’s continued access to whatever they need for selfpreservation, understood as their original right to their life, limbs and liberty.

2.2 Kant on original common possession Let us now turn to Kant in order to reconstruct his notion of original common possession against the background of the one we find in early modern natural law thinkers such as Grotius. The aim of the present section is to juxtapose my own interpretation with that underlying the standard reading. Some significant conceptual differences notwithstanding, the latter takes Kant to follow Grotius in a crucial respect: the notion of original common possession is concerned with the way we each relate to the external world, rather than the way we relate to one another. i.e., it depicts what I will call a community of proto-ownership. To start with, even among proponents of the standard reading there is no doubt that Kant departs in significant respects from his natural law predecessors and Grotius in particular. He articulates this clearly himself, for instance, in § 13 of the Doctrine of Right, in the context of introducing what I have labelled the argument form earth dwellership. Recall from Chapter 1 that, after associating it with the right to be somewhere, Kant specifies that his conception of original common possession is not empirical and dependent upon temporal conditions, like that of a supposed primitive possession in common (communio primaeva), which can never be proved. Original possession in common is, rather, a practical rational concept which contains a priori the principle in accordance with which alone people can use a place on the earth in accordance with principles of right. (DoR 6:262)

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In contrast to the idea of a ‘communio primaeva [uranfa¨ngliche Gemeinschaft]’, which he associates with the natural law tradition, Kant puts forward a ‘practical rational concept’, i.e., an idea of reason. He thus simultaneously secularises and dehistoricises the idea of common possession of the earth, which should neither be understood as a gift from God, nor as a historically real state of affairs that has actually pertained at some point. As Kant puts it, original common possession is to be conceived as ursprünglich rather than uranfa¨nglich, i.e., to the extent that it depicts a state ‘prior to acquisition’ (Ripstein 2021b p. 283), this priority is of a logical or conceptual rather than of a temporal kind. What does it mean to say, though, that the idea of communio primaeva can ‘never be proved’? This question takes us to an earlier passage in which Kant explicitly targets Grotius’ notion of original common ownership.³ There, he highlights: This original community of land, and with it of things upon it (communio fundi originaria), is an idea that has objective (rightfully practical) reality. This kind of community must be sharply distinguished from a private community (communio primaeva), which is a fiction; for a primitive community would have to be one that was instituted and arose from a contract by which everyone gave up private possessions and, by uniting his possessions with those of everyone else, transformed them into a collective possession [Gesammtbesitz]; and history would have to give us proof of such a contract. But it is contradictory to claim that such a procedure is an original taking possession and that each human being could and should have based his separate possession upon it. (DoR 6:250).

Recall that Kant ascribes to Grotius the notion of a positive community of original ownership (here referred to as a ‘private community’), according to which humanity jointly owns the earth and its resources. The problem for Kant is that such a community cannot be original but would itself have to be ‘instituted’ in the sense that it arose from a contract: a contract through which individuals gave up on their original right to use all things and which regulates any subsequent appropriation. This idea is problematic for several reasons. First, as Kant explicitly argues in the passage just cited, there is simply no evidence of any such agreement in history. Second, given that a positive community is already one of ownership, ³ According to Byrd & Hruschka (2010 pp. 124–126), Kant here closely follows the critique of Achenwall.

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even if collective, there is a sense in which Grotius misses the point: the challenge, according to Kant, is not so much to derive private ownership from common ownership, but to understand the basis of ownership as such from a vantage point where nobody owns anything.⁴ And third, the parties to any agreement in the distant past lack the authority to bind future generations; ancestors cannot once and for all place their descendants under an obligation to respect private acquisitions (Ripstein 2009 p. 156). What we can gather from this is that Kant’s original community is not actually a community of ownership, but of possession. At this stage of the argument, nobody has any particularised claims over anything, neither as an individual or a collective. Instead, that we possess the earth in common is a logical corollary of the fact we need a place to be. As corporeal agents we have to be somewhere, yet because of the unity or interconnectedness of all places on the planet’s surface we are all constrained to take up a place currently not taken up by anyone else. Kant’s community of original possession is thus framed as a ‘disjunctive’ community of mutual exclusion. And yet, proponents of the standard reading insist that the original community of possession already contains the conceptual resources to normatively structure a particularisation process in the course of which the initial state of ‘mere possession’ is left behind. Original common possession, on their view, is effectively a community of proto-ownership, participation in which both legitimises and constrains unilateral appropriation of land and resources. In order to see what I have in mind, recall that the notion of original common possession works in conjunction with the idea of a general will, which is said to ‘correspond a priori’ (DoR 6:250) to it. I laid out this argumentative move in Chapter 1: we can all be said to participate in this general will simply by virtue of the inhabiting the earth’s circumference. And given that the postulate of practical reason tells us that it must be possible to own external objects of our choice, it must be the will of all (hence of each one of us) to divide up the earth. In vindicating, on the condition of subsequent entrance into

⁴ Pufendorf ’s conception of a negative community may appear to do better on this count. Yet, while he starts from a situation where all things are open to everyone, he maintains that any kind of exclusive possession requires the consent of all members of the community: ‘For although after God made the gift, nothing remained to prevent man from appropriating things for himself, yet there was need of some sort of convention if it was to be understood that by such appropriation or seizure the right of others to that thing was excluded’ (Pufendorf 1934 p. 537; see also Salter 2001 p. 540). In other words, while Pufendorf removes one reason for agreement, since there are no joint or overlapping rights to start with (which, on the Grotian picture, were extinguished by universal consent), he still requires agreement to show that it was possible for an individual to impose an obligation on others by seizing things from the negative common. Eventually he thus runs up against some of the same objections Kant levels against Grotius.

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the civil condition, unilateral acts of original acquisition, the idea of a general will united a priori thus replaces the empirical notion of humanity’s consensus that Kant rejected in Grotius.⁵ I do not need everyone’s explicit approval to acquire a piece of land of my choice by being the first to take possession of it, for I can ascribe the requisite will to all participants in the original community of possession. Closely following the natural law tradition, the Kant of the standard reading employs the idea of original common possession as a license for the earth to be carved up by individuals into private property, and by states into particular territories. In so doing, he modifies the normative standard that justifies, guides and ultimately constrains this process in line with his underlying philosophical commitments. In the first section, we saw that Grotius (and his fellow natural lawyers) structure unilateral appropriation around the principle of need, which provides the content of natural law as given by God and discerned by reason. Grotian agents are needy beings who share a world of limited resources with beings that have similar needs, for the satisfaction of which they have to use, occupy and appropriate goods. For Kant, by contrast, needs can have no rights-grounding justificatory force. According to the Doctrine of Right’s Introduction, the concept of right has to do, first, only with the external and indeed practical relation of one person to another, insofar as their actions, as deeds, can have (direct or indirect) influence on each other. But, second, it does not signify the relation of one‘s choice to the mere wish (hence also to the mere need) of the other, as in actions of beneficence of callousness, but only a relation to the other’s choice. […] All that is in question is the form in the relation of choice on the part of both, insofar as choice is regarded merely as free, and whether the action of one can be united with the freedom of the other in accordance with a universal law. (DoR 6:230, my emphasis)

Considerations of need are explicitly excluded from the domain of right, which is tasked to formally coordinate the choices of multiple agents as they externally relate to one another. Insofar as these agents are corporeal and coexist under spatial constraints constituted by the earth’s spherical surface, they have ⁵ Achenwall, like Kant, rejects the Grotian doctrine of a consensus of humanity. He does not agree with Kant’s claim, however, that something in addition to unilateral choice must fill this gap. On Achenwall’s view, we can simply appropriate unilaterally, thus imposing a novel obligation on everyone else to recognise our acquisition (Byrd & Hruschka 2010 p. 126).

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to be somewhere in order to exercise their capacity for choice and action. Human physicality thus matters for Kant, too, but it does so in a more formal sense: as a precondition for a particular kind of (juridical) agency that the Doctrine of Right sets out to conceptualise. Consequently, the transition from a state of original common possession to a world in which resources and territories are particularised is motivated and thus licensed not, as in the natural law narrative, because this would allow us to more reliably or efficiently satisfy our needs for the sake of self-preservation. Instead, external objects are included under the notion of right because they extend the sphere of external freedom by allowing for an additional way in which we can exercise it, while making for an additional way in which our choices can be incompatible. Kant’s permission to first ‘particularise’ our right to be somewhere by originally acquiring land and, subsequently, any objects of our choice simply by being the first to claim them for ourselves is purely freedom-based, or so proponents of the standard reading argue (Pinheiro Walla 2016 p. 176). Accordingly, Kant also specifies a different set of constraints on individual appropriation. I briefly mentioned previously the idea of a right of necessity in Grotius. The thought was that exclusive rights to property and territory remain conditional on everybody’s continued ability to satisfy their needs. That is to say, even in a situation where the stock of land and resources has been fully privatised, latecomers are entitled to help themselves to the surplus of property holders in case of hardship. While the state of original common ownership is overcome in the course of the pertinent particularisation process, it continuous to linger in the form of this remedial right. Rights in property and territory thus always retain a close connection to the original purpose of basic needs satisfaction. According to proponents of the standard reading, Kant provides a corollary to the right of necessity, adopted to his own (reconceived) conceptual framework.⁶ They point to Kant’s discussion of cosmopolitan right [Weltbürgerrecht], where Kant argues that every individual ‘originally has a right’ to a place ‘on which an inhabitant of the earth can live’ (DoR 6:352). We have this right, Kant emphasises, even against states or non-state collectives of which we are not a member. According to the examples he introduces in the preparatory ⁶ Notice that I am here referring to the limits on appropriation within the domain of private right. At the transition to and within public right, additional redistributive constraints may apply. There is a long-standing disagreement whether the state only ‘rubber-stamps’ pre-existing holdings, or whether in making them conclusive the state determines the scope of property in the first instance. Much hangs on the way in which the notion of ‘provisional’ property rights is read. For a recent overview, see Hasan (2018).

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notes for his essay on Perpetual Peace, a shipwrecked person who is swept onto the shores of a foreign land where they would find themselves illegally occupying already appropriated territory, or sailors seeking refuge from a storm in a foreign harbour, must be granted temporary sojourn if refusal would lead to their ‘destruction’ (DPP 23:173; see also Kleingeld 1998 p. 76). Proponents of the standard reading view this as Kant’s attempt to account for the negative externalities of unilateral appropriation for excluded latecomers by granting them a compensatory entitlement. The cosmopolitan right to occupy a place on which one ends up unintentionally, even if that place is already under the exclusive control of a private or public agent, can be ‘derived’ (Byrd & Hruschka 2010 p. 207) or ‘lingers’ (Vanhaute 2014 p. 129) from original common possession. In a scenario where the earth’s surface is completely appropriated, original common possession is ‘revived’ in the form of a residual right to be somewhere. The thought is, hence, that Kant’s account of cosmopolitan right addresses the same problem as Grotius’s right of necessity: the implausibility of an inflexible scheme of property and borders when that scheme goes against the very rationale for its introduction (Pinheiro Walla 2016 p. 165). This rationale consists in the satisfaction of needs, in one case, the ‘realisation’ or ‘particularisation’ of our right to be somewhere, in the other. In accordance with his philosophical framework, Kant links back individual holdings to the original right to be somewhere rather than the principle of need. I take that this interpretation to be dubious on several counts. Textually, while Kant hints at a possible humanitarian dimension of cosmopolitan right in Perpetual Peace, the relevant discussion in the Doctrine of Right, which is laser-focused on the (anti-)colonial context (see Chapter 3), drops any reference to it. Moreover, as I will show in Chapter 4, this reading confronts a major systematic problem: if cosmopolitan right is understood as spelling out a kind of remedial entitlement that lingers from the original right to be somewhere in a scenario where all available space is particularised, we would expect it to juridically protect our presence at some place only insofar as it is inadvertent and involuntary. This, however, makes it virtually impossible to explain why Kant includes a mobility aspect in cosmopolitan right, i.e., an entitlement to roam the earth’s surface (DoR 6:353). The residual right to be somewhere would not appear to entitle me to being anywhere other than the place I happen to occupy through no fault of my own. What matters for current purposes is not so much the plausibility of the supposed remedial right, but its significance for the standard reading as a whole. It

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shows that, as a distributive principle, Kant’s notion of original common possession simultaneously vindicates and limits unilateral appropriation. In so doing, it normatively structures the process in the course of which the initial state of original common of possession is left behind. This highlights the extent to which proponents of the standard reading conceive of Kant’s conception as systematically rooted in the natural law tradition. My claim is that Kant actually departs from the natural law tradition in a much more profound way. I want to so suggest that he does not turn to original common possession in order to judge the legitimacy of individual holdings or collective claims over territory. In fact, original common possession does not even depict a way we each relate to the external world at all. Recall my reconstruction of the argument from earth dwellership in Chapter 1. I suggested that the ideas of a right to be somewhere and of original common possession are connected in a normatively more complex way than simple logical implication. By thinking of the earth as possessed in common, we acknowledge the fact that as we claim a place for ourselves (which we unavoidably but actively do merely by entering the world as corporeal agents), a distinct kind of interdependence relation of ‘possible physical interaction’ (DoR 6:352) is constituted; for, the finite space we co-inhabit with everyone else globally constitutes a scenario where ‘the choice of one is unavoidably opposed by nature to that of another’ (DoR 6:267). On this view, Kant’s notion of original common possession is irreducibly relational. It does not express how we each separately relate to (parts of ) the external world, but how we relate to one another by virtue of finding ourselves in a particular spatial environment. Kant puts this most pointedly in the preparatory remarks to the Doctrine of Right, where he clarifies that the relation between participants in the original community of possession is emphatically not ‘a relation to the land (as an external thing) but to other humans in so far as they are simultaneously on the same surface’ (DDR 23:322). The fact that we each occupy a place on earth matters only indirectly, namely to the extent that it mediates our juridical relation with others. The contrast between a Kantian relation of wills and a Grotian relation of ownership (Deggau 1983 p. 100) is obscured by the standard reading’s notion of a community of proto-ownership. For, it frames the relevant question as concerned with rightful entitlements to this or that piece of land, resource, or object from the outset. What Kant is actually interested in, however, are the systematic relations of interdependence that obtain among individuals globally just in virtue of their unavoidable coexistence on the earth.

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2.3 Disjunctive community and the global standpoint In order to make good on the purported contrast between my own and the standard reading’s conception of original common possession, I will take my cue from Kant’s repeated characterisation of it, in his preparatory notes to the Doctrine of Right, as ‘disjunctive’ (DDR 23:320–324). Specifically, there he argues that […] every human being naturally takes a place on earth wherever or whenever he comes into being [zur Wirklichkeit kommt], and can himself think of this act as rightful, as disjunctive-universal taking possession (taking of land) to possess either one or another place upon the surface of the earth.

It is fair to say that Kant’s characterisation of original community as disjunctive has generally not been at the forefront of interpretive disputes about the concept.⁷ Proponents of the standard reading do generally take notice of Kant’s specification (e.g., Byrd & Hruschka 2010 pp. 129, 133, 207; Ripstein 2009 pp. 155–156), but interpret it in the most narrow way conceivable: as articulating the trivial sense in which the place I physically occupy with my body at any one point in time cannot simultaneously be occupied by another person, and vice versa. By contrast, I propose to read the notion not in terms of where someone happens passively to be through no choice of their own, but rather actively in terms of a community of possible interaction. This will bring to the fore the profoundly relational core of the concept and give us a clearer picture of precisely which kind of community is at the heart of Kant’s grounded cosmopolitanism.

2.3.1 Disjunctive judgement and the category of community The notion of a ‘disjunctive community’ is a technical term that Kant develops in the Critique of Pure Reason, where it is introduced in the course of a wider (and perennially contested) argument about the nature of space, objects, temporal relations, and the unity of experience. While it would go well beyond the scope of this chapter to try to elucidate every single claim that Kant makes in this context, we do need to keep in mind one of the most important tenets of the first Critique as a whole: human beings’ knowledge of the world ⁷ Milstein (2013), whose work has been of great use to me in this context, constitutes a notable exception.

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depends on a system of fundamental categories or what he calls ‘pure concepts of the understanding’. Controversially, Kant thinks that he can develop these categories from nothing more than logical forms of judgement expressed in a systematic ‘table’ (CPR A70/B95). After all, that is what the human intellect fundamentally is for Kant: a capacity to make judgements (CPR A69/B94, A81/B106, see also Longuenesse 1998). One of these forms of judgement is the ‘disjunctive judgement’, the exclusionary ‘either … or’ (CPR A73/B99). In a disjunctive judgement one divides a concept, call it A, into its mutually exclusive specifications, call them B, C, and D. The affirmation of any of these specifications of A is a sufficient condition for negating the others (if A is B, it cannot be C or D), and conversely the negation of all but one is a sufficient condition for affirming the remaining one. What is important to understand here is that the disjunctive form of judgement divides a logical space (the extension of a concept) into mutually exclusive and jointly exhaustive spheres. The known constituents mutually exclude each other (they are logically opposed to one another) but together exhaust the space of logical possibility, i.e., they ‘determine in their totality the true knowledge’ (CPR A74; see also Watkins 2011 p. 44). Thus, there is a sense in which the state of each is bound to the others: the affirmation of one member implies the negation of the others, and the negation of all members but one implies the affirmation of the remaining member. A disjunctive judgement, that is to say, relates all concept subordination to a unified logical space within which concepts reciprocally delimit each other’s sphere and meaning. As already mentioned, the logical forms of judgement then ground categories or ‘pure concepts of the understanding’. In our case, the disjunctive judgement yields the category of ‘community’ as the third category of ‘relation’, alongside ‘substance’, and ‘causality’ (CPR A80/B106, B110–111). What connection Kant precisely has in mind between forms of judgement and the categories is perennially contested. He must certainly be eager to avoid the Leibnizian rationalism he would himself go on to reject in the later ‘Amphiboly’ section, such that the idea surely cannot be that relations of things in space are essentially the same as relations of concepts (Longuenesse 2005 p. 194 ff.).⁸ Yet even granting that Kant is not guilty of assimilating logical and material relations, the weaker claim that the same acts of mind or ‘procedure[s] of understanding’ (CPR B113) that generate the forms of judgement also generate ⁸ Watkins (2005) agrees that when Kant talks about ‘the same procedure of the understanding’ (CPR B113) that underlies judgement and the use of categories, he does not in any straightforward way ‘derive’ one from the other but merely points out a similarity among the respective mental acts.

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the synthesis of spatiotemporal manifolds under concepts is no less puzzling. The thought is that similar to the way in which, in a disjunctive judgement, a concept is divided up into its constituent components (bringing them into a relation of mutual determination and exclusion), so in a material whole, things mutually determine one another in an object or body considered as a whole (CPR B112/113).⁹ In both, members are represented as reciprocally coordinated with one another as parts that come together to constitute a whole. Just as two logically opposing propositions exclude each other, so two objects cannot occupy the same spatial position (at the same time). And just as the constituents of a disjunctive judgement, taken together, include the entire sphere of knowledge in that particular domain, so substances, in order to be an object of experience, must stand in a unified space, a whole that is the product of its various constituents. Consequently, the category of community has two names: ‘Reciprocity’ (with an emphasis on the relation of causal interaction) and ‘Community’ (with an emphasis on objects’ being part of one space). In order to illuminate the surprising connection that Kant stipulates, between the understanding’s representation of relations among concepts and empirically given things in space, we need to take a closer look at the Critique of Pure Reason’s section on the ‘Analogies’ (CPR A 177–218, B 218–265). There, Kant tries to show how precisely the categories of relation provide the human understanding with ‘schemata’ through which we synthesise the manifold of appearances into an intelligible horizon of spatiotemporality. Each of the three analogies examines how a particular category constitutes the condition of a particular type of temporal experience. In the third Analogy (CPR A211/B257), Kant claims that we can only experience appearances as co-existing simultaneously by applying the concept of community.¹⁰ This, in turn, is to suppose that the objects are in relations of mutual interaction—they ‘reciprocally contain the ground of the determination’ of the other (CPR B 258). How so? It would seem that I can just look at my chair, then look at the table standing next to it and simply know without further ado that they co-exist simultaneously. Yet, Kant does not think it is that easy, for while we always apprehend objects successively (we see one object first, then the other), we have no given (absolute or objective)

⁹ Guyer (1987 p. 452, fn.17) notes that ‘as is often pointed out, Kant’s connection of the real relation of reciprocal influence with the logical notion of an exclusive disjunction is the most tenuous of all’. ¹⁰ For extensive treatments of the third Analogy (which was for a long time neglected in Kant scholarship), see Watkins (2005 pp. 217–229); Longuenesse (2005 pp. 184-210); Shell (1996 pp. 133-160).

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framework within which we might locate events and states of affairs in time. Hence, we need the help of the categories that relate the perception of objects in time ‘prior to all experience, and indeed make it possible’ (CPR A177/B219). For instance, if we look at the table first and then at the chair, we can only judge that they exist simultaneously (instead of being two perceptions following onto each other) if we could reverse the perception, i.e., look at the chair first and then at the table (CPR A211). Unfortunately, given that time is not perceivable, we cannot directly read this reversibility off our perception—it requires subjecting our apprehension to a rule that cannot be derived from that apprehension itself (Allison 2004 p. 265). This rule, which allows for the judgement that each object occupies part of a larger unified space, takes a disjunctive form and requires regarding the coexisting things as constituting a community. So, the sense in which simultaneously existing objects stand in ‘dynamical community’ (CPR A213) and determine certain features of each other is primarily spatial: one substance is thought to be the cause of certain determinations in another and vice versa insofar as each is in some sense responsible for the spatial position of the other. If two things exist simultaneously, they mutually exclude each other, as each object has its place by virtue of the place of everything else. And as only spatially separated objects are capable of coexisting simultaneously, spatial positions partly condition temporal positions. To sum up, we cannot locate particular objects vis-à-vis one another without first being able to comprehend them as coordinate participants in a unified horizon of possible experience. This enlightening comparison already leads us some way to understanding what Kant seeks to suggest by calling the original community of possession ‘disjunctive’. Just as a disjunctive judgement relates mutually exclusive concepts to a unified logical space, so the idea of a disjunctive community illuminates how in virtue of sharing the earth in common, we each affect one another in the phenomenal world. Kant thus picks up the general construction of rights relations in analogy with the mechanical law of action and reaction in the Introduction to the Doctrine of Right (as discussed in Chapter 1), which now serves as a template upon which to conceive of rights relations within the empirical space constituted by the earth’s spherical surface. Again, spatial and temporal aspects are mutually constitutive: from a temporal perspective, the idea of disjunctive community grasps the essential simultaneity of our coexistence with one another on the earth’s limited surface. In explicating the notion of original common possession, Kant clarifies that the relation among participants in the original community of possession is

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not ‘a relation to the land (as an external thing) but to other humans in so far as they are simultaneously on the same surface’ (DDR 23:322, my emphasis). Our own corporeal nature and the earth’s surface are only normatively relevant (in the distinct way they are) by virtue of our concurrent existence. To sum up, Kant’s original community describes a system of mutual exclusion in which persons stand in a relation of ‘possible physical interaction’ in virtue of simultaneously occupying different parts of the earth. I believe this analogy supports my interpretive proposal. According to the standard reading, the participants of the original community of possession are related to one another only indirectly, that is, as mediated by each their occupation of (and claim to) some place on earth. I have made the case for a shift in emphasis which is borne out by our closer engagement with the idea of disjunctive community: away from the idea of a passive community of individuals each with a claim to be somewhere, to the idea of an active community of possible physical interaction. Accordingly, the idea of original common possession encapsulates a formal, relational account of global connectedness that underlies Kant’s spatial cosmopolitanism. This relation is conditioned in a crucial way by the empirical conditions of our coexistence (on a spherical surface), yet it is independent or at least only indirectly concerned with the way we each relate to biophysical space.

2.3.2 The global standpoint I now would like to go a step further in order to fully exploit and appreciate the suggested analogy between Kant’s community of original common possession and the notion of disjunction (as the as the pertinent category of community) as developed in the first Critique. Beatrice Longuenesse (1998 pp. 375–94, 2005 pp. 184–211) highlights what makes the category of community so interesting and indeed unique among the categories: the perception of spatiotemporal simultaneity does not merely require us to perceive, or presuppose, interaction among the things we observe. It also requires us to posit ourselves within that interaction as phenomenal bodies that coexist among them. Kant takes our body to mediate our perception of the simultaneous existence of other substances: we can only experience substances as standing in relations of community under the condition of experiencing them as coexisting with our own body. A change of our own location is only noticeable through its altered relation to other objects (and the other way around), as Kant explains:

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From our perspective it is easy to notice that only continuous influence in all places can lead our sense from one object to another, that the light that plays between our eyes and the heavenly bodies effects a mediate community between us and the latter and thereby proves the simultaneity of the latter, and that we cannot empirically alter any place (perceive this alteration) without matter everywhere making the perception of our position possible; and only by means of its reciprocal influence can it establish their simultaneity and thereby the coexistence of even the most distant objects (though only mediately). (CPR A213–214/B 260)

Only by experiencing the coexistence of other substances with our own body through the light that ‘strikes our eyes’ and ‘plays between the bodies’ are we able to experience their respective relations of community. Each objective change of spatial position of our body is made evident to us by the alteration of its relation to other bodies. Kant illustrates this idea nicely in his (little-known) essay What is Orientation in Thinking. There, he develops his stance with regard to the wider philosophical issue of ‘orientation in thinking’ (pertaining to the scope of reason and the existence of God) by way of a comparison with two more familiar and seemingly manageable forms of orientation. First, he reflects on the possibility of geographical orientation (WOT 8:134/135). At first sight, it may look as though we are able to orient ourselves in a landscape by drawing on certain objects or fixed points—the altitude of the sun, the position of the stars or a compass. Yet, Kant thinks the idea that we could merely orient ourselves by drawing on external things misleading. Instead, the most immediate (and important) point of orientation is in fact our own subjective feeling of left and right, which we (implicitly) rely on when distinguishing South, North, East, and West. Without this ‘feeling of a difference in my own subject’ (WOT 8:134) we would be ignorant of the relation in which we ourselves stand to the world surrounding us and thus remain entirely disoriented. This becomes even clearer when we imagine ourselves attempting to find our way around in a pitch-dark room (WOT 8:136/137). Given that we are familiar with the room’s general lay-out, all we require in order to spatially locate all items in the room is knowledge of the position of one piece of furniture together with, importantly, our feeling for left and right. If instead somebody had rearranged the furniture, we would be completely lost. In both examples, it is a subjective feeling that serves as a relevant point of orientation in space. More

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specifically, it is my body—its location in space—that provides the necessary reference point: the subjective feeling of left and right is nothing else than a ‘feeling of a difference between my two sides’ (WOT 8:137). We can only grasp space through our own position in it.¹¹ Now, Longuenesse argues that by requiring us to locate ourselves in the world,¹² the category of community provides us with what she calls a ‘standpoint on the whole’: a reflexive standpoint from which we locate and situate ourselves in interaction with the world surrounding us.¹³ I want to suggest that it is this standpoint on the whole, and in particular the reflexivity that comes with it, which can be understood as providing the template for what we can call Kant’s global standpoint.¹⁴ Unlike in the theoretical philosophy, where we relate to the external world around us with a speculative interest (to gain knowledge about it), in the domain of right we practically relate to other agents that we affect and physically encounter in it. Yet, in the two cases it is the same intellectual capacity that enables us to take a common epistemic ‘standpoint on the whole’ of objectively existing things, and which allows us to take a practical standpoint on the ‘whole of interacting beings’ (Longuenesse 2005 p. 206). Hence, there is a sense in which our interaction with other agents is perspectival as much as our perception of the world. The idea of a global standpoints illustrates how by virtue of sharing the earth in common, we each affect one another in the phenomenal world, but we are each able, from the global standpoint, to reflexively relate to the whole of human beings with which we are in thoroughgoing interaction. Kant thus radically redefines what it means to think globally. The global standpoint is not a pre-established view ‘from nowhere’, but it is a reflexive and first-personal standpoint from which individuals think and act globally with the intention of finding shared solutions for shared problems. To think of the earth as possessed in common illustrates the requirement, directed at each particular ¹¹ The larger philosophical point in this context relates to the perspectival change that comes with Kant’s ‘Copernican turn’: given that a topography of reason has to be done without the bird’s eye view (that he takes to be at the root of both rationalist megalomania and empiricist scepticism), what we are left with is our ability to determine the limits of reasons through reflection upon reason itself—similar to the way in which we can only grasp space through our own position in it. ¹² ‘Us’ here refers to the ‘empirical unities of consciousness associated to a body we represent as our own in the unified empirical space and time whose representation we thereby generate’ (Longuenesse 1998 p. 391). On the relation between self-consciousness and consciousness of one’s body, see also Longuenesse (2006). ¹³ Longuenesse goes as far as to say that ‘by the location of us in the empirically given world’, not only ‘the astonishing edifice of Kant’s Analogies of Experience comes to completion’ (Longuenesse 1998 p. 392), but in fact Kant’s Critical philosophy as a whole. It is at this point that we truly are the authors of the representation of the very world in which we locate ourselves. ¹⁴ Again, Milstein (2013 p. 124) deserves credit to drawing the connection between Longuenesse’s notion of a standpoint on the whole and Kant’s cosmopolitanism.

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agent, to take a reflexive stance towards their own existence as an embodied agent in a world of limited space. In judging the earth to be possessed in common, we acknowledge both the need and our shared ability to come to terms with the plurality of perspectives that humans bring to bear on each other on the earth’s spherical surface. This allows us to push back even more forcefully against the particularisation narrative put forward by the natural law tradition and ascribed to Kant by the standard reading. On this view, recall, original common possession depicts a (historical or conceptual) starting point that is left behind as the earth’s land and resources are privatised. According to Kant, by contrast, it is not a state of affairs that can simply left behind or absorbed by a legitimate regime of private holdings.¹⁵ For the fates of earth dwellers are bound up with one another in a way that has priority over contingent, man-made communities of rightholders or co-owners. As will become clearer in subsequent chapters, this is not to say that we should do away with all kinds of particular relations, commitments and institutions. Rather, the global standpoint is (also) one from which we critically reflect on existing relations of property, territory or sovereignty that we have inherited. To put it differently, the idea of a global standpoint shows that Kant is engaged in a kind of justificatory project that is fundamentally different from that of Grotius and his fellow natural lawyers or, for that matter, the project he is associated with by proponents of the standard reading. Kant’s aim is not to explain or vindicate the individual distribution of what was ‘originally’ given to all in common. In fact, he is interested in a much more fundamental question than how to divide up the world; he uses the idea of original common possession in order to explore the most fundamental way in which individuals relate to one another globally. As I have argued, this way is independent or at least derivative of the way in which each one of us relates to biophysical space. Kant is not interested in answering a particular distributive question but to spell out the challenge earth dwellers face by virtue of sharing the earth’s finite surface. Plausibly, Kant’s motivation for turning upside down the argumentative sequence he inherits form the natural law tradition is precisely the latter’s tendency to obliterate something like a global standpoint. By essentially consolidating existing holdings and borders rather than adopting a critical perspective, it risks losing sight of questions of global concern. For as long as we ¹⁵ This is why Kant conceives of original common possession as the conclusion of a particular argumentative sequence rather than its starting point (Flikschuh 2000 pp. 153, 163), i.e., as a reminder of the most basic kind of global connectedness rather than a license to privatise the earth’s surface.

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remain within the bounds set for any scheme of legitimate private holdings, questions of genuinely global concern do not even arise. In order to illustrate this point, let us turn from Grotius to one of his most eminent contemporary followers, Mathias Risse (2012, 2015). Risse draws on Grotius’ needs-based notion of original common ownership as providing a ’universally acceptable, non-parochial standpoint’ (Risse 2012 p. 114) that he takes to be ideally suited for the adjudication of issues of global concern—including those pertaining to resources, territory, immigration, and environment. The need to theorise from such a standpoint is said to arise from a twofold empirical development: in a globalised economy, humanity is increasingly interconnected, while at the same time confronting more and more problems that ‘concern our way of dealing with the earth as a whole’ (Risse 2015 p. 84) and thus point out to us the limitations of our planet. Risse actually modifies the Grotian framework as just outlined in two respects. First, he explicitly dehistoricises the account. His talk of ‘original’ common ownership does not aim at an originally actual state of affairs but seeks to highlight the exclusively normative sense in which resources and spaces that exist independently of human activities might be taken to be owned in a way that is prior to the moral claims that individuals or groups have to these resources based on, for instance,¹⁶ occupancy or invested labour. Second, he secularises Grotius’s account by replacing the appeal to God (and His ‘divine gift’) with intuition-based natural rights talk.¹⁷ Risse’s aim is to ‘make maximally uncontroversial claims’ that would allow us ‘to adjudicate question of global reach’ (Risse 2012 p. 114). More specifically, his notion of original common ownership draws on the intuitive plausibility of three separate claims: first, the fact that resources and space are valuable and necessary for all human activities. Second, the (normative) claim that the satisfaction of human needs matters morally. And finally, the assumption that nobody has a claim to resources and space based on contribution or personal achievement, given that they exist independently of human activity. These three claims in conjunction are supposed to warrant the theoretical starting point that ‘all human beings, no matter when and where they were born, are in some sense symmetrically located with regard to the earth’s resources and space’ (Risse 2015 p. 88)—in a nutshell: they originally own the earth in common.

¹⁶ I say ‘exclusively’ because Grotius’s own account seems to have both a normative and a historical dimension—as seen in his shifting back and forth between a priori and a posteriori perspectives. ¹⁷ Risse (2012 p. 91) defines natural rights as ‘moral rights whose justification depends on natural attributes of persons and facts about the non-human world’.

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Risse’s move to dehistoricise and secularise the notion of original common possession would appear to move it closer to Kant. That said, he closely abides by Grotius’s argumentative sequence: original common ownership figures as a conceptual starting point from which a distributive rationale unfolds. Interestingly, while Grotius himself actually does not show much interest in questions of genuinely global concern, Risse explicitly sets out to employ the notion as a conceptual pillar of a theory of global justice.¹⁸ Yet, it strikes me that this endeavour is fundamentally curtailed from the outset by the fact that, within the Grotian framework, original common possession in fundamentally concerned with the ‘usefulness for human purposes of three-dimensional spaces’ (Risse 2015 p. 91). In Risse’s terms, the notion thus provides an explicitly ‘nonrelational’ (Risse 2012 p. 89) ground of justice: it gives rise to principles of just entitlement that ‘apply among all human beings regardless of what relations they share’ (Risse 2012 p. 7); notably in contrast to Kant, for whom to say that the earth constitutes the basis of possible physical interaction just is to make a claim about how individuals relate to one another globally.¹⁹ Consequently, the purview of Risse’s discussion remains largely confined to justifying particular holdings; questions of global concern are collapsed into the question to what extent or under which conditions two coercive and exclusionary social institutions, private property and territorial states, are acceptable. I believe that his underlines, once again, how fundamentally Kant departs from the natural law tradition, whether embodied by its early modern or contemporary adherents. It also opens up a wider contrast between Kant’s global thinking and the (distributive and needs-based) methodological framework predominant in the more recent global justice literature that Risse reflects paradigmatically.

2.4 Earth dwellers as justificatory equals In Section 2.3.2, I developed the notion of a global standpoint by linking Kant’s characterisation of the original community of possession as ‘disjunctive’ with the first Critique’s discussion of the category of community. Now, as valuable as this analogy has turned out to be, it is important not to overstretch it or ¹⁸ Strictly speaking, the idea of common ownership only provides one of five grounds of justice that Risse appeals to in the course of On Global Justice (2012), but it undoubtedly figures crucially in its overall argument and is developed at length. ¹⁹ Johan Olsthoorn has pointed out to me that Kant’s ‘relationality’ is conceptually distinct from what Risse invokes as ‘relational’ grounds of justice in a way familiar from current normative debates, where relations are taken to be mediated by social practices (Risse 2012 pp. 130-166). Yet, I take it that the contrast I construe still helps to illustrate the way in which a Grotian notion of common ownership is only indirectly or derivatively interpersonal.

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even to equate the disjunctive communities in the theoretical and juridical domains respectively. The step from the community of material substances, to a cosmopolitan community of individuals each with their own respective standpoints is all but trivial. For what we now relate to are no longer objects, but a plurality of diverse and interacting agents, each of whom makes claims (to exercise their capacity for choice and action) upon us from their own perspective. In other words, the meaning of the very notion of disjunction shifts from a mere logical category that depicts relations of incompatibility between objects inhabiting the same space, to a normative one that articulates the way in which agents with diverse and potentially incompatible sets of principles and forms of political organisation nevertheless share a common world. It would be more accurate, hence, to refer to the original community of possession as constituted of a plurality of standpoints in disjunctive relation. This points to a distinctive feature of Kant’s grounded cosmopolitanism, as conceived from the global standpoint: it does not depict humankind as already unified, either in a shared idea of humanity (as in accounts of moral cosmopolitanism) or in a shared set of institutions (as in accounts of political cosmopolitanism). Instead, it depicts a more antagonistic kind of community of agents in ‘disjunctive relation’, i.e., capable of physically interacting with one another in real time and space (Longuenesse 2005 pp. 206–207; Milstein 2013 p. 125). As we will see in the subsequent chapter, Kant’s awareness that the original community of possession is constituted by an (abstract) plurality of agents and perspectives allows him to take seriously the (concrete) plurality of specific forms of life and political association he encounters in the real world. Moreover, by virtue of its genuinely practical rather than epistemic nature, Kant’s global standpoint imposes duties on human beings.²⁰ What it depicts is not just a mode of reasoning, but a mode of coexisting—literally, a place to ‘stand on’—that binds earth dwellers to comport themselves in a certain way vis-à-vis one another. What it binds them to is not to respect other earth dwellers as claimants of certain natural rights-like entitlements to this or that piece of earth; this would be the implication of the natural law-based framework I have sought to reject. Instead, it binds them to treat each other as justificatory equals, i.e., agents with whom they share not only the predicament of co-inhabiting a finite space, but also the ability to come to terms

²⁰ I take it that this distinguishes my concept of a global standpoint from Flikschuh’s (2017) account of ‘orientation in global thinking’, which is developed in terms of epistemological, not ontological, categories from the outset.

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with it by finding mutually agreed terms of coexistence. Kant’s grounded cosmopolitanism conceives of earth dwellers as justificatory equals in the process of structuring the shared space in which they find themselves. In order to spell out the normative implications of this idea, Chapters 3 and 4 will turn from the context of private right to Kant’s discussion of cosmopolitan right [Weltbürgerrecht] at the very end of the Doctrine of Right.²¹ Up to this point, I have not mentioned that there, we find the argument from earth dwellership that I identified in the earlier section on ‘private right’ (DoR 6:262), repeated almost verbatim:²² Nature has enclosed them all together within determinate limits (by the spherical shape of the place they live in, a globus terraqueus). And since possession of the land, on which an inhabitant of the earth can live, can be thought only as possession of a part of a determinate whole, and so as possession of that to which each of them originally has a right, it follows that all nations stand originally in a community of land, though not of rightful community of possession (communio) and so of use of it, or of property in it; instead they stand in a community of possible physical interaction (commercium), that is, in a thoroughgoing relation of each to all the others of offering to engage in commerce with any other […]. (DoR 6:352)

The striking similarity between the two passages suggests an important conceptual connection. I leave a detailed and systematic exploration of the category of cosmopolitan right as well as its relation to the earlier passage, which has been at the centre of attention so far, for subsequent chapters. At this point, my aim is simply to illuminate further the argument developed in the present chapter and reassert my case against the natural law-based conception of original common possession underlying the standard reading. ²¹ Cosmopolitan right itself has only recently received increased attention in the literature, with different motivations: Benhabib (2004) makes it fruitful as a way to think about refugee and asylum rights; Byrd and Hruschka (2010 pp. 205–211) take it to be dealing with rights to engage in international trade; Niesen (2007 pp. 90–108) stresses its role within Kant’s critique of colonial occupation; Reinhardt (2019) stresses the implications for migration and movement. ²² In the context of discussing cosmopolitan right in his earlier essay ‘Toward Perpetual Peace’ (8:358), Kant argues along similar lines that the pertinent right to hospitality belongs ‘to all human beings by virtue of the right of possession in common of the earth’s surface on which, as a sphere, they cannot disperse infinitely but must finally put up with being near one another; but originally no one had more right than another to be on a place on the earth’. I will occasionally refer to this essay in the course of my argument yet largely focus on the Doctrine of Right, given that only there I find both Kant’s spatial cosmopolitanism and his juridical theory of statehood (with which the former is in tension) fully developed.

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Taking his cue primarily from Perpetual Peace, Peter Niesen (2007) plausibly distinguishes a positive (or humanitarian) and a negative dimension of the cosmopolitan right to hospitality. On the one hand, if an individual ends up at some place through no fault or responsibility of their own, but merely due to unfavourable circumstance, they can only be turned away ‘if this can be done without destroying [them]’ (PP 8:358). As Kant illustrates in the two examples from the preparatory notes to Perpetual Peace that I mentioned previously, both the victims of a shipwreck washed ashore and the sailors seeking refuge from a storm in a foreign harbour can legitimately claim hospitality rights to remain on the host lands and cannot be returned to the sea or their homeland if this would in any way endanger their lives. On the other hand, what this ‘right to visit’ emphatically does not contain is a ‘right to be a guest’, let alone to remain permanently on foreign land or even settle there.²³ This is defied, Kant laments, by the ‘inhospitable behaviour of civilised, especially commercial states in our part of the world’ and the ‘the injustice they show in visiting foreign lands and peoples (which with them is tantamount to conquering them)’, which on his view ‘goes to horrifying length’ (PP 8:358). Given that the claimants of cosmopolitan right are explicitly characterised as participants of original community of possession, we can ask to what extent the normative substance of the former can help us make sense of the latter. The positive or humanitarian dimension in particular seem to sit nicely with the standard reading. From the very fact that people need to be somewhere and that they need a place as well as spatially located goods to satisfy their needs (while taking into account that there is a plurality of such beings), Kant seems to derive a fundamental place-related kind of entitlement that acknowledges the territory-based nature of human life. As I have indicated previously, proponents of the standard reading conceptualise this as a kind of compensation from the global commons for late-coming individuals, who retain a right to be somewhere even once the earth’s surface is particularised. Notice, however, that the humanitarian dimension of cosmopolitan right essentially disappears in the Doctrine of Right. There, the negative or constraining dimension of cosmopolitan right is front and centre. Kant appears to be primarily preoccupied to condemn European states’ colonial practice at the time, whose attempts at conquering foreign lands under the pretext of ²³ This is why Kant speaks of cosmopolitan right as being ‘limited’ to a right to hospitality. In the early modern scholastic tradition (e.g., thinkers such as Vitoria or Suarez), the concept of hospitality had often been invoked in order to justify colonialism on the basis of a supposed right to be treated hospitably upon arrival on foreign territory.

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establishing a civil condition leaves a ‘stain of injustice’ (DoR 6:353). Newly ‘discovered’ lands may not be appropriated without the consent of those who have already settled in the region. This aspect of cosmopolitan right is much less well suited to bear out the standard reading. Why is Kant seemingly concerned now with rights over particularised parts over the earth’s surface, such as the rights of non-state peoples over their land? And why do the relatively small nomadic communities have a right to occupy the ‘great open regions’ they traverse (DoR 6:353)—disallowing other people, to whom the land might be equally useful, to even settle in the proximity of these lands? More generally speaking, how much space do I have a right to as part of this cosmopolitan right to hospitality? Sure, given that human agency is at stake, it is hard to deny that someone who is locked up in a suitcase fails to have a place on earth in the relevant sense.²⁴ But beyond that? I think the difficulty we face in answering these questions on the basis on Kant’s conceptual resources provides further evidence against the standard reading and in favour of the genuinely relational account underlying the argument from earth dwellership. Defending the latter, my aim in this chapter has been to push back against the idea that the participants of original common possession are claimants of parts of the earth’s surface, be they particularised or unparticularised. I argued that Kant’s grounded cosmopolitanism, as it is both sketched in the relevant passages in the ‘private right’ section and much later in ‘cosmopolitan right’, is precisely not concerned with the legitimacy of material entitlements. Instead, Kant is concerned with framing the question how individuals relate to one another globally by virtue of sharing the earth. The original community of possession is not a community of proto-ownership, but a community of earth dwellers who find themselves in a particular kind of interdependence relation. Such a conception does have normative implications, yet they are procedural rather than material. Kant’s grounded cosmopolitanism does not assign natural rights-like entitlements over parts of the earth’s surface that individuals bring to bear in their interactions with distant strangers; we saw that for Kant (in contrast to his natural law predecessors) our empirical existence as vulnerable beings with bodily needs simply does not have direct rights grounding justificatory force, such that the very structure of those needs would equip us with substantive entitlements when it comes to resources and land. Instead, it prescribes how they ought to treat one another in the process of ²⁴ I am grateful to Markus Willaschek for this example.

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regulating their interaction and structuring the common space. We are dutybound to treat distant strangers as justificatory equals who share with us not only the task of coming to terms with the fact that we affect and constrain each other with our choices merely by virtue of the spatial circumstances we find ourselves in, but also the ability to reflexively and critically relate to our own respective standpoints (Milstein 2013 pp. 125–128). In this vein, I have sketched Kant’s global standpoint not as a view from nowhere, as conceived by an Archimedean observer who provides us with a formula for carving up the earth (such as the principle of need as determined by human nature and discerned by reason) but as encapsulating a duty to acknowledge the shared earth dwellership of distant strangers. Against this background, we can read the section on cosmopolitan right as drawing attention to the process through which shared norms, including those concerning land and territory, are established. Hence, it prescribes a certain mode of interaction among embodied agents. Guests may ‘present themselves for community’ (PP 8:358) or at least offer to engage in cultural, economic or political exchange (‘commerce’, DoR 6:352). They may pass through, but not stay against the will of the inhabitants; this constraint holds even where inhabitants fail to accord with visitors’ view of what it is to make proper use of territory. It is this mode of comportment that I take to be at the normative core of cosmopolitan right: earth dwellers can legitimately claim to be dealt with in a certain way when they interact with distant strangers, namely as justificatory equals when it comes to structuring the shared space they inhabit. This confirms, I believe, not only the profoundly relational structure of original common possession. It also shows that’s Kant’s grounded cosmopolitanism is concerned with the quality of human interactions, not the quality of matter; it encapsulates a universalism not of shared principles or institutions, but of procedural standing. As will become clearer in the subsequent chapter, this general perspective also fits with Kant’s condemnation of colonialism that becomes so significant to his discussion of cosmopolitan right in the Doctrine of Right. The wrong of colonialism, on his view, does not consist in the violation of natural territorial claims but in an objectionable form of interaction, one that ‘denies its members equal and reciprocal terms of cooperation’ (Ypi 2013 p. 158). Substantive claims to land and territory do not precede but are contingent on associative relations that first allow all parties involved to determine the terms of interaction as equals. Colonialism is thus just an instance of the more general wrong of setting up political relations in a morally objectionable way.

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The territorial distinctness of the colonised is descriptively relevant but not normatively; colonialism is a wrong of association rather than a wrong of attachment.

2.5 Conclusion There is no doubt that we find a variety of cosmopolitanisms in Kant (Cavallar 2012). Otfried Ho¨ffe (2012 pp. 47–66) even distinguishes up to seven respects in which Kant’s oeuvre deserves to be called cosmopolitan broadly speaking. In the introduction to this book, I indicated that when it comes to his practical philosophy, interpreters usually focus on either of two frameworks: as a moral cosmopolitan, Kant is read is depicting a community among all rational beings who constitute a ‘kingdom of ends’ qua shared humanity.²⁵ Human beings, on this view, have universal rights and obligations in virtue of being joint members of a ‘supersensible world’. Others (briefly discussed in Chapter 7) ascribe to Kant a distinctly political cosmopolitanism of shared membership in some kind of global polity. This approach takes the notion of ‘world citizenship’ literally, aiming at a worldwide legal and political order that unites all individuals in one political body. Kant’s grounded cosmopolitanism neither depicts a community of shared humanity, nor of shared citizenship, but of embodied agents in direct physical confrontation with each other. In order to lay out this view, I have focused in this chapter on the concept of original common possession. Kant employs the notion not in order to divide up the material world or arrive at a set of substantive entitlements over particular objects or pieces of land from the armchair. Instead, his aim is to convincingly frame the question how individuals relate to one another globally and to ask which constraints on interactions across borders we can derive from this. From what I have called the global standpoint, we do not (as an Archimedean observer) objectively adjudicate distributive shares but reflexively acknowledge (from a first-person perspective) our unavoidable interdependence with others in a world of limited space. Kant’s global standpoint does not come with ready-made solutions to shared global problems but seeks to provide a perspective from which agents can resolve to find them as justificatory equals.

²⁵ On the distinction between moral and political cosmopolitanism in wider debates about global justice, see Kleingeld & Brown (2014).

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As I have indicated along the way, the contrast between Grotius’s material conception and Kant’s relational conception has implications that go beyond the two thinkers. Drawing on Mathias Risse’s work, I argued that Grotius’s needs-based framework neatly fits into a widespread tendency, among contemporary normative theorists, to reduce questions of global concern to questions of how to divide the world up. Kant’s earth dwellers are not construed as passive recipients of goods but as equal normative authorities with the capacity to create mutually justifiable relations across borders.

3 The Right to Visit (I) Cosmopolitan Encounters

Against the so-called standard reading, my ambition over Chapters 1 and 2 has been to show that Kant’s argument from earth dwellership cannot be absorbed into the property-based dynamic of state entrance; this, despite making its first appearance in the midst of the Doctrine of Right’s section on private right. Instead, it articulates a distinct juridical concern arising from the fact that a plurality of corporeal agents coexist on the earth’s circumference. The participants of Kant’s ‘disjunctive’ community of possible physical interaction are not to be conceived as proto-owners with (qualified) rights to appropriate parts of the earth, but as justificatory equals tasked to come to terms with the predicament that they find themselves on a spherical surface. This leaves open how precisely the argument from earth dwellership is related to the property argument and, consequently, the systematic place of Kant’s grounded cosmopolitanism within the Doctrine of Right as a whole. In order to answer these questions, the subsequent two chapters turn to Kant’s discussion of cosmopolitan right. Recall from the preceding chapter’s final section that Kant there effectively repeats the argument familiar from the earlier § 13: by virtue of the fact that ‘nature has enclosed [us] all together within determinate limits (by the spherical shape of the place they live in, a globus terraquaeus)’, we stand ‘originally in a community of land’, which is a ‘community of possible physical interaction [commercium]’. The participants in this community stand in a ‘thoroughgoing relation of each to all others of offering to engage in commerce with any other’ and ‘and, to this end, to visit all regions of the earth’ (DoR 6:352/3). To say that the claimants of cosmopolitan right have a right to visit is to say that they are entitled to roam the earth’s surface and attempt contact with distant strangers in order to offer all kinds of cultural, economic, or political exchange but that they must not (without explicit permission) stay or settle anywhere.

Kant’s Grounded Cosmopolitanism. Jakob Huber, Oxford University Press. © Jakob Huber (2022). DOI: 10.1093/oso/9780192844040.003.0004

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The present chapter will specifically address the anticolonial dimension of cosmopolitan right.¹ Indeed, the pertinent discussion in the Doctrine of Right seems to be heavily focused on a particular kind of interaction: that between Western emissaries who travel to ‘newly discovered lands’ (DoR 6:353) with the intention to settle or colonise, and the non-state peoples they encounter there. The systematic question raised by this cosmopolitan encounter is on which juridical basis Kant is able to radically curtail the former’s comportment, denying them in particular a right to force non-state peoples to enter the civil condition; for instance, they might simply settle in their vicinity, thus unleashing a property-based dynamic of state entrance. I will argue that it is their shared earth dwellership which constrains travellers to cautious offers for interaction and exchange. The thought is that membership in the original community of possession ‘limits’ the travellers’ right to visitation even in the absence of a shared property practice. The present chapter thus highlights the respect in which Kant’s grounded cosmopolitanism is a cosmopolitanism of self-constraint vis-à-vis distant strangers or unfamiliar forms of collective life. The argument proceeds as follows. I start by rejecting the idea that Kant’s anti-colonialism is reconcilable with or even driven by his earlier racism by pointing to its distinctly juridical nature (Section 3.1). This raises the question how to conceptualise a juridical relation that is ostensibly not propertymediated. Attempts by Arthur Ripstein and Anna Stilz respectively to solve this puzzle, while insisting on the unconditionality of the property argument, I argue, struggle to demarcate the dynamic of state entrance from the limitations of cosmopolitan right (Section 3.2). Katrin Flikschuh’s radical contextualisation of the property argument, on the other hand, remains unable to conceptualise any juridical constraints in the absence of a shared property practice (Section 3.3). This opens the door for my own attempt to conceive of Kant’s anticolonialism as prescribing comportment from the global standpoint (Section 3.4). Construing a regress from the property argument to the more fundamental domain of earth dwellership, which is shared by both sides of the cosmopolitan encounter, I show how Kant is able to conceptualise a distinctly juridical critique of colonialism as wrongful comportment.

¹ I will develop this claim by focusing on Kant’s anticolonialism as it is primarily articulated in cosmopolitan right. There are related discussions in the context of private right (DoR 6:266) as well as of ius post bellum in the section on the right of nations (DoR 6:348, see also Ripstein 2021a pp. 187-213).

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3.1 Kant’s juridical anticolonialism The category of cosmopolitan right is generally considered to be one of the major conceptual innovations of Kant’s mature political thought (e.g., Ho¨ffe 2012 p. 275; Niesen & Eberl 2011 p. 248). Up to his essay on Theory and Practice Kant had operated with a bifurcated notion of public right distinguishing only between state law (concerned with relations among citizens as well as between citizens and their state) and international law (concerned with relations among states). This had left him unable to account for rights relations across borders, i.e., between individuals and state or non-state collectives of which they are not a citizen. Kant now ascribes to the claimants of cosmopolitan right a ‘right to visit’: a distinct kind of mobility right that entitles its holder to move around the earth in order to make contact with distant strangers without, however, being permitted to stay or even settle abroad without permission. Unfortunately, the relevant discussion is painfully short and no less enigmatic. Consequently, interpreters continue to dispute its various aspects, including the precise scope,² content, justification,³ and institutional realisation (Kleingeld 2011 pp. 72–91). From the outset, Kant is eager to highlight the architectonic reasons for completing the threefold system of public right. In the Doctrine of Right, he emphasises that ‘if the principle of outer freedom limited by law is lacking in any one of these three possible forms of rightful condition, the framework of all the others is unavoidably undermined and must finally collapse’ (DoR 6:311). It is certainly part of Kant’s motivation in introducing cosmopolitan right to close a particular conceptual gap in his system of right. Arthur Ripstein proposes to read this against the background of Kant’s (in-)famous tendency to systematise in categories of threes, with the third being the second applied to the first. Along these lines, cosmopolitan right would have to be conceived as the right of nations understood as the right of the state, or in other words, as the ‘horizontal relation between nation-states conceived as the vertical relation between a state and those who are not members of it but nonetheless subject to it’ (Ripstein 2021a p. 237). I shall soon take a closer look at Ripstein’s proposal. For now, notice that his framework is problematically reductionist for the straightforward reason that cosmopolitan rights relations hold not only between individuals and states but also non-state peoples. This shows ² Niesen (2007) convincingly points out that individuals, state and non-state collectives are all subjects of cosmopolitan right. ³ For a helpful overview of various justification of cosmopolitan right, see Reinhardt (2019, pp. 170–193).

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that we cannot make sense of Kant’s discussion of cosmopolitan right in all its complexity without considering also the distinctly anticolonial motivation underlying and ultimately, I believe, driving it. Indeed, in Perpetual Peace, cosmopolitan right still had a wide(r) scope of application. Recall from Chapter 2 that, there, Kant could be read as juxtaposing a negative account of constraints on deliberate visitors, who can go no further than making communicative offers to their hosts, with a positive or humanitarian aspect that protects the involuntary visitor in distress (for instance, a shipwrecked crew) from rejection if that would result in their death (Pinheiro Walla 2016 p. 174).⁴ In the Doctrine of Right, by contrast, Kant drops any reference to the humanitarian dimension of cosmopolitan right and is no longer interested to distinguish the reasons for a particular encounter.⁵ Given that he appears exclusively concerned with the rights and obligations of voluntary travellers, which are typically citizens of Western states, it makes more sense to distinguish constraining and permissive aspects of the cosmopolitan right to visit respectively. The latter, which will be at the centre of the subsequent chapter, authorises travellers to roam the earth’s surface in order to make contact abroad, including those parts that are exclusively claimed by states (as territories) or individuals (as property in land). The former prohibits travellers from staying or settling anywhere without the locals’ explicit consent. This constraint is central to Kant’s critique of European colonisation and explicitly directed against those of his predecessors (such as the Spanish scholastics) who put forward philosophical apologies of this project. Let us start by having a closer look at the central passage of Kant’s critique of colonialism, which takes up a considerable part of the Doctrine of Right’s section on cosmopolitan right: The question arises, however: in newly discovered lands, may a nation undertake to settle (accolatus) and take possession in the neighbourhood of a people that has already settled in the region, even without its consent? If the settlement is made so far from where that people resides that there is no encroachment on anyone’s use of his land, the right to settle is not open to doubt. But if these people are shepherds or hunters (like the Hottentots, the Tungusi, or most of the American Indian nations) who depend for their ⁴ In the preparatory notes to Perpetual Peace (DPP 13:173), Kant himself had suggested to normatively structure cosmopolitan right according to the reason for a particular encounter between distant strangers. ⁵ In the Doctrine of Right, Kant even drops the notion of hospitality. Karoline Reinhardt (2019 pp. 117–119) plausibly speculates that he came to conclude that by virtue of its ethical connotations the notion should be reserved for the Doctrine of Virtue.

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sustenance on great open regions, this settlement may not take place by force but only by contract, and indeed by a contract that does not take advantage of the ignorance of those inhabitants with respect to ceding their lands. This is true despite the fact that sufficient specious reasons to justify the use of force are available: that it is to the world’s advantage, partly because these crude peoples will become civilized […] But all these supposedly good intentions cannot wash away the stain of injustice in the means used for them. (DoR 6:353)

Kant is obviously concerned here with Europeans’ comportment towards non-state peoples. While Western emissaries can claim not to be treated with hostility when they arrive on foreign soil, they can go no further than offering themselves for a wide range of interaction or exchange (referred to by Kant as ‘commerce’) and have to put up with such offers being rejected. In particular, newcomers must not deprive the latter of their land by effectively treating it as ‘res nullius’ and stay or even settle there without the locals’ explicit consent.⁶ In obtaining this consent, they should not make fraudulent contracts, for instance by taking advantage of the ‘ignorance of those inhabitants with respect to ceding their lands’. This is in line with Kant’s prohibition, earlier in the Doctrine of Right, on forcing a people to adopt (what are for them) unfamiliar kinds of land use—for instance, forcing a hunting people to become a farming people (DoR 6:265). Kant connects these remarks with a more general critique of the burgeoning colonial practice of his time and the very idea of a civilising mission. Europeans cannot just go around establishing a civil condition for others wherever they may take it to be absent. While Kant suspects the travellers’ intentions (to civilise the supposedly ‘crude peoples’ of the New World) to be ‘specious’ anyway, even good intentions ‘cannot wash away the stain of injustice’ (DoR 6:353) associated with colonial occupation and domination.⁷ On non-state peoples themselves, Kant actually says very little. Arguably, he takes them to lack the kind of established property systems Westerners are used to, at least as far as land use is concerned.⁸ The groups he has in mind—nomadic, hunting, ⁶ This argument seems particularly directed against a Lockean tradition of justifying colonialism based on appropriation of land qua innocent occupation. ⁷ Earlier in the Doctrine of Right, Kant formulates a general prohibition to ‘found colonies, by force if need be in order to establish a civil union with them [i.e., non-state peoples, JH] and bring them into a rightful condition’ (DoR 6:266). ⁸ Whether Kant’s assumptions in this respect are historically accurate at all is immaterial at this point, given that what we are interested in is a purely conceptual question. Stilz (2014, p. 204) worries that many nonstate peoples, such as the native Americans, did actually claim distinct territories within which they allocated land rights to individuals.

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and pastoral peoples ‘like the Hottentots, the Tungusi, or most of the American Indian nations’—follow a nonsedentary way of life and merely use the land over which they roam for their sustenance without claiming property rights over it. Kant had explicitly confirmed this in an earlier passage about the idea of the sovereign as the ‘supreme proprietor of the land’ (DoR 6:324): ‘A ll land belongs only to the people (and indeed to the people taken distributively, not collectively), except in the case of a nomadic people under a sovereign with whom there is no private ownership of land’. As a (possible) form of political association, non-state peoples are even more difficult to make sense of. Clearly, they do not live in what we commonly think of as modern states, that is, territorial forms of centralised authority exercised through formal structures of government. Arguably, they are not just a wild, uncivilised bunch of individuals, either. Kant’s preferred term ‘peoples’ [Vo¨lker or Vo¨lkerschaften], defined elsewhere as a union of a multitude of human beings with a will uniting them (DoR 6:311, DoR 6:343), indicates as much.⁹ While he thus intimates that non-state peoples have some kind of (possibly informal) internal constitution or political organisation, he hesitates (i.e., he is unwilling or takes himself to be unable) to specify it any further. What Kant does not say is that they have a duty to enter the state. Given that elsewhere he calls it a ‘wrong in the highest degree’ (DoR 6:307) to remain in the state of nature, the total omission of any claim to the effect that non-state peoples commit a moral wrong is at least remarkable (Muthu 2009 p. 199).

3.2 Racism and anticolonialism The Doctrine of Right’s discussion of cosmopolitan right reads as a bold anticolonial statement. Strikingly, Kant thus appears to depart quite radically from his earlier views on racism and colonialism. In both his lectures on Anthropology and Physical Geography, as well as two essays on race from 1775 (On the Different Human Races) and 1785 (Determination of the Concept of Race), he had laid out a detailed theory of human races.¹⁰ While all races go back to a common Stammgattung, Kant had argued, they differ in physical appearance (such as skin colour or facial traits) in a way that is inheritable and, hence, ⁹ Mary Gregor translates both ‘Vo¨lker’ and ‘Vo¨lkerschaften’ as ‘nations’ (a notion closely associated with nation-states), yet particularly the latter is clearly supposed to be neutral between statist and nonstate peoples (Niesen 2007 p. 106 fn.13). Kant’s remark that the notion ‘right of nations [Vo¨lkerrecht]’ is actually a misnomer and ‘should instead be called the right of states’ (DoR 6:343) further confirms this. ¹⁰ See e.g., Bernasconi (2011) and Larrimore (2008).

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passed on regardless of geographical location. Kant does confine himself to distinguishing various races on a physiological level but ascribes to them— most explicitly in the Anthropology Lectures’ section on the ‘character’ of the races—varying intellectual, mental, and ultimately moral capacities.¹¹ Blacks, for instances, are supposed to be lazy and useful as slaves, Indians lack the mental capacities to motivate themselves, Native Americans (the lowest of his four races) have a ‘half extinguished vital energy’ (DHR 2:438). Unsurprisingly, European Whites, as the only nondeficient race, sit at the top of his racial hierarchy. In his 1788 essay On the Use of Teleological Principles in Philosophy, Kant doubles down on the claim from European superiority. Responding to the remark of his critic Georg Forster that the inability of races to adjust to different climates would be counter-purposive, Kant connects racial difference to seeds that are once triggered by climate but eventually become permanent. Native Americans are doomed to weakness and inertia, for instance, because their ancestors had migrated from one climate zone to another against nature’s ‘encouragement’ (TPP 8:174). Notice also that from his views on race Kant derives an affirmative view of colonialism. In the Idea for a Universal History, for instance, he predicts that European nations ‘will probably eventually legislate for all other continents’ (IUH 8:29). Similarly, in his lectures on Physical Geography, Kant casually asserts that the Indian people were much happier ‘if they were to be ruled by a European sovereign’ (LPG Do¨nhoff p. 178). The assumption seems to be that their alleged intellectual and moral deficits render nonwhites incapable also of governing themselves. Hence, in Kant’s writings of the 1770s and 1780s, the arguments for racial hierarchy, colonialism, and even slavery,¹² go hand in hand. There is no doubt that these remarks are as appalling as they are empirically ill-informed. It remains contested among interpreters, though, what they imply for (our understanding of ) his universalist moral commitments.¹³ According to critics such as Robert Bernasconi (2001); Emmanuel Eze (2001), or Charles Mills (2005), Kant’s writings on race reveal him to be a consistent inegalitarian from the outset, who in referring to ‘humanity’ has all along ¹¹ While Kant himself arguably thought these two dimensions (physiological and moral) could be kept separate, it would be historically naive to deny that, in his time, justifications of racial hierarchy and colonial domination were closely intertwined and usually worked in conjunction. ¹² In a footnote to Teleological Principles, Kant approves of an anti-abolitionist pamphlet according to which if slaves were emancipated ‘they soon abandon an easy craft which previously as slaves they had been forced to carry out, and instead become hawkers, wretched innkeepers, lackeys, and people who go fishing and hunting, in a word tramps’ (TPP 8:174 n). ¹³ Keep in mind that all of the mentioned texts are from Kant’s Critical period and were written alongside works such as the Groundwork and the second Critique.

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been concerned with White European men exclusively. Interpreters on the other end of the spectrum seek to downplay Kant’s racist remarks by locating them at the systematic margins of his philosophical thinking (e.g., Do¨rflinger 2001; Hill & Boxill 2001). In contrast to both camps, I believe that we are welladvised not to dissolve the tension between Kant’s racism and his universalist moral theory in either direction rather than to make it explicit, if only in order to be reminded of our own possible prejudice. More to the point in our context, however, is yet another observation: in the course of his writings, Kant appears to have changed his mind quite substantially. As Pauline Kleingeld (2007) has shown meticulously, from the early 1790s onwards Kant starts to drop the talk of racial hierarchy (while initially holding on to a physiological theory of races) and moves towards a more egalitarian and genuinely cosmopolitan view. This shift proceeds alongside his development of a distinct philosophy of right and is expressed through the introduction, first in the context of his essay on Perpetual Peace (1795),¹⁴ of cosmopolitan right as the third domain of public right. It is cosmopolitan right that provides a conceptual basis for ascribing ‘full juridical status to nonwhites’ (Kleingeld 2007 p. 586) and, accordingly, for strongly condemning Western colonial activity. His critique, there, of the ‘inhospitable behaviour of the civilised states in our part of the world, especially the commercial ones, the injustice that the latter show when visiting foreign lands and peoples (which to them is one and the same as conquering those lands and peoples) takes on terrifying proportions’ (PP 8:358), the gist of which is repeated in the Doctrine of Right, is completely at odds with the views he had voiced a few years earlier. Kleingeld’s interpretive claim is by no means uncontested. Inés Valdez (2017, 2019), for instance, has provided an interpretation of Kant’s anticolonialism as compatible with, in fact plausibly driven by a continued commitment to racial hierarchy. Locating Kant’s mature political writings in the historical context of intra-European colonial conflict as well as the American and French revolutionary wars, she argues that Kant turned into a critic of colonialism only out of a narrow concern that it would be detrimental to the prospects of (progress towards) republicanism and peace in Europe.¹⁵

¹⁴ Sankar Muthu (2009 p. 202) suggests, for instance, that the mature Kant’s comments about the ‘barbarous, crude, and brutish’ (PP 8:355) can be read as following Montaigne’s ironic play with the idea of New World individuals as natural savages and cannibals, intended to criticise the violent behaviour of European states. ¹⁵ Compare this to McCarthy’s (2009) claim that Kant deemed colonialism necessary for progress.

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On the one hand, Valdez argues, Kant worried that Europeans’ involvement in cruel and uncivilised practices abroad would negatively affect the development of their own character. More importantly yet, he took colonial rivalry to undermine the antagonism and ‘productive resistance’ among European powers, which Kant thought could lead to an enduring and lawlike peaceful balance (cf. IUH 8:24–36).¹⁶ In this context, he was particularly critical of British domination in terms of naval power, slave trade, and colonial possessions, which he saw as hindering its rival republics from developing and fuelling progress toward peace. Non-Europeans themselves, on their part, could not form part of such a productive equilibrium, given that they were considered too weak to stand up to the European conquerors. Hence, Kant deemed them not merely irrelevant to progress towards peace (cf. Larrimore 1999), but indeed a ‘central obstacle’ to it (Valdez 2017 p. 832). The protections they enjoy under cosmopolitan right are effectively a way of accommodating inequality rather than recognising equality. Hence, Kant introduced the notion of hospitality in order to tightly regulate European activity abroad and to prevent European warfare from expanding to other parts of the world. His anticolonialism should not be read as giving voice to a cosmopolitan rather than an isolationist commitment, a retreat from the world that coexists with hierarchical views of race and civilisation (Valdez 2017 p. 820). Valdez draws the conclusion that, even for contemporary purposes, Kant’s political thought constitutes an inapt vantage point for anything like a normative vision of world justice (Valdez 2019). Valdez certainly provides a timely reminder against too hastily and seamlessly replacing the racist Kant of the 1770s and 1780s with the textbook anticolonialist from the 1790s. I even agree with her to some extent that cosmopolitan right is primarily concerned with constraining the comportment of Western travellers rather than articulating a natural rights-based global order. I am not persuaded, however, by her claim that it encapsulates an essentially inward-looking spirit. After all, cosmopolitan right is concerned with the ‘possible union of all nations with a view to certain universal laws for their possible commerce’ (DoR 6:352, my emphasis) and aimed to ‘bring the human species ever closer to a cosmopolitan constitution’ (PP 8:358), not just with peace among a number of European rivals who should otherwise retreat from the global arena.

¹⁶ Valdez borrows the term ‘productive resistance’ from Muthu (2014). Muthu himself, however, employs this notion in a way that is a more sympathetic to Kant’s anticolonial credentials.

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More importantly, keep in mind that in both Perpetual Peace and the Doctrine of Right, Kant explicitly characterises cosmopolitan right as concerned not with philanthropy but juridical obligations (PP 8:357; DoR 6:352). Rights relations, we saw earlier, are reciprocal relations among a plurality of agents who can affect one another with their respective capacities for choice (DoR 6:230). The participants of such a relation must regard each other as constitutively equal in a juridical respect.¹⁷ It is against this background that Kant demands non-state peoples’ contractual consent concerning any use of their land. And it is against this background that he talks about the ‘stain of injustice’ (DoR 6:353) left by colonisers’ de facto refusal to do so. In other words, the problem with colonialism is not (primarily) that it would be a threat to (intra-European) stability or equilibrium but that one party wrongs the other, in other words, that it violates the juridical equality of the colonised. These considerations seem to bolster Kleingeld’s hypothesis that the notion of cosmopolitan right allows Kant to conceptualise his shifting position with regard to race and colonialism by granting to nonwhites a status of full juridical equality. Valdez’ claims that Kant is not concerned with ‘the relation of colonizer-colonized’ or with ‘exploring the political agency of the colonized’ (Valdez 2019 p. 4), by contrast, are difficult to sustain. She appears to underestimate what Kant commits himself to in ascribing a set of distinctly juridical obligations to Europeans vis-à-vis their non-European counterparts. Taking seriously Kant’s juridical anticolonialism requires that we make sense of the cosmopolitan encounter as a rights relation of sorts.

3.3 The rationalist predicament I have just argued that Kant’s anticolonialism in the Doctrine of Right departs sharply from his earlier views about racial hierarchy, and that his aim specifically in the section on cosmopolitan right is to articulate a growing unease with Western colonial activity. Yet, we will see that it is not straightforward to identify the conceptual grounds on which he intends to do so. Looming particularly large in the background is the account of property and the state Kant had developed in earlier parts of the Doctrine of Right. We must be in a position, systematically speaking, to distinguish two kinds of juridical obligations: a property-mediated (coercible!) obligation to enter the state that we have ¹⁷ As Flikschuh and Ajei (2014 p. 231) remind us, given that right abstracts from inner motives and maxims (DoR 6:214). There is still space left for ‘attitudinal’ racism, i.e., the disposition to view another as morally inferior on the grounds of race.

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towards our fellow citizens, on the one hand, and a (noncoercible!) obligation to limit ourselves to hospitable offers for interaction that we have towards distant strangers, on the other. Our ability to make this distinction is crucial in order to explain why the statist visitors cannot simply settle in the vicinity of a local population, thus unleashing a property-based dynamic of joint entrance into the civil condition, i.e., force non-state peoples into the state with them. This suggests that there is a direct link between attempts to make sense of the cosmopolitan encounter, and the view about (the scope of ) Kant’s account of property and the state that respectively underlies them. With regard to the latter, I will distinguish between a rationalist framework that takes Kant’s justification of statehood to be unconditional, and a contextualist framework that reads it as falling out of a recursive reflection on the conditions of possibility of (contingently raised) property claims. The latter, in contrast to the former, exempts non-state peoples, who are taken by Kant to make no claims to objects as exclusively their own, from the property-based dynamic of state entrance. We will see that this fundamentally shifts the justificatory burden proponents of either account face in conceptualising the cosmopolitan encounter.

3.3.1 Rationalism about property and the state According to what I call the rationalist account of property and the state, nonstate peoples are not exempt from the property-based duty of state entrance. For, the introduction of intelligible possession and the subsequent entrance into the state are rational requirements. This corresponds to the way the property argument is widely read, and how I characterised it in Chapter 1. On this view, recall, Kant starts the section on private right by distinguishing empirical possession (physically holding an object) and intelligible possession (possessing an object without holding it). Given that the former is analytically contained in the innate right, Kant sets out to investigate how the latter is possible (DoR 6:249).¹⁸ This is not self-evident, for in unilaterally appropriating an object we impose on all others an obligation they did not have before (thus violating the principle of innate juridical equality contained in the Universal Principle of Right). On the other hand, I must be able to claim objects of my choice as mine simply because I have the physical power to do so. This seems to be implied ¹⁸ On Kant’s view (and in contrast to Locke), property rights specify relations between subjects with regard to objects rather than between subjects and objections. Hence, what needs to be shown is that a particular kind of moral relation is possible.

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by the postulate of private right, which actually proceeds ex negativo: if objects could not be owned, freedom would be ‘depriving itself of the use of its choice with regard to an object of choice’ (DoR 6:246). The formal feature of an object as an object of choice means that I must be able to choose it to be mine; it must be considered at least potentially in rightful possession of some person or other. The postulate is required to resolve the ensuing conflict of reason with itself (DoR 6:247). As a permissive law, it provisionally authorises me to unilaterally appropriate objects on the condition that I enter the civil condition with all others. In making public coercive law in the name of everyone, state entrance constitutes a move from unilateral to omnilateral willing. Kant, according to the rationalist account, thus presents an argumentative sequence that (unavoidably) proceeds from innate to acquired right and from there (unavoidably) into the state. Given that we each have claims to external freedom, we cannot but claim for ourselves external objects of our choice. In so doing, we cannot but unilaterally impose obligations on others. And given that this amounts to predicating of ourselves an authority we do not in fact have, our unilateral acquisition can only be redeemed through joint entrance into the civil condition. Kant repeatedly presents the obligation to enter the state as coercible (e.g., DoR 6:356, 256, 307, 318). Any person with a property claim ‘can constrain everyone else with whom he comes into conflict about whether an external object is his or another’s to enter along with him into a civil condition’ (DoR 6:256). To remain in a condition that is not rightful is thus described as ‘wrong in the highest degree’ (DoR 6:307). The corollary of this argument seems to be that the duty to enter the state holds unconditionally, including for peoples who do not (yet) live in states. This also means, however, that proponents of the rationalist account are particularly hard-pressed to systematically distinguish the limitations of cosmopolitan right from the dynamic of state entrance, according to which individuals in the state of nature can very well force each other into the state. What stops Westerners from initiating such a dynamic wherever they go, simply by acquiring land or property in the vicinity of whomever they encounter?

3.3.2 Stilz on provisional rights and avoidable interaction The idea underlying Anna Stilz’s (2014) account of the cosmopolitan encounter is that we should think of non-state peoples as operating under a system of property rights (if an incomplete or imperfect one), such that they

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can legitimately claim a kind of moral status that protects them against outside interference by statist settlers. Her key move is to argue that merely by virtue of their occupation of the land on which they reside, non-state peoples acquire some form of rights over it. However, given that conclusive property rights are possible only under state authority, these rights are ‘provisional’. That is to say, they are ‘rights of empirical possession that are established through a process of physical appropriation that occurs in time and space’ (Stilz 2014 p. 213).¹⁹ Importantly, notwithstanding their provisional status, these rights are still strong enough to impose binding duties on others. More precisely, they have a ‘rightful presumption’ (DoR 6:257) in their favour even before and beyond their vindication by political authority. That is why European settlers have an obligation to respect indigenous peoples’ first possession of land (and thus, more generally, their political form of life).²⁰ I should note that while Stilz subscribes to the rationalist account of property and the state, she slightly diverges from the way I have just reconstructed this argument. In particular, she operates with a different understanding of the way in which, outside the civil condition, property claims are merely ‘provisional’ such that we require the state in order to make them ‘conclusive’ (DoR 256/257). My previous exposition implied a justificatory relation between provisional and conclusive property, according to which the former notion points to a conceptual (or, more accurately, a moral-juridical) problem with unilateral acquisition in the absence of public authority: only the state is able to make the required judgments that constitute property rights. Stilz, in contrast, defends a temporal reading, according to which provisional property merely precedes conclusive property in time (see also Byrd & Hruschka 2010).²¹ That is to say, in the state of nature, people can have almost fully defined (yet insufficiently secure) rights in objects of their choice, for the vindication or enjoyment of which they (have to) enter into the state. I worry that the latter interpretation, in virtue of the ensuing instrumental justification of state authority, risks losing sight of what is most distinctive

¹⁹ Stilz construes the piece of space I occupy with my body as a generic kind of empirical (physical) possession. Hence, expelling someone from a piece of land they occupy is no different from wresting an apple from their hand. ²⁰ In her nonexegetical work, Stilz (2013) develops this idea under the label of ‘occupancy rights’. ²¹ Along similar lines, Flikschuh (2017 p. 52/53) distinguishes between an empirical and an analytical reading of provisionality. In fact, Stilz (2014, pp.209/210) takes her account to strike a middle way between the two interpretations. The claim, however, that provisional rights ‘have moral content, and they make normative demands on others in the state of nature’ (Stilz 2014, p. 218) warrants my suspicion that she is much closer to the temporal reading.

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about Kant’s account of political obligation as incurred through the problematic act of property acquisition.²² It seems to me that, on a textual level, this reading does not take seriously enough the inability of unilateral wills to legislate ‘coercive law for everyone with regard to possession since that would infringe upon freedom in accordance with universal laws’ (DoR 6:256). Hence, its proponents have a hard time making sense of the way in which Kant sees himself (or reason more generally) confronted with an actual antinomy when it comes to the moral vindication of property rights. While I am thus sceptical of attempts to assign much prominence to the idea of provisional (property) rights, I shall not pursue this line of argument further at this point. For even if Stilz’s reading holds up, she still needs to explain why non-state peoples’ acquisition of land does not unleash a dynamic of state building. As we have seen, Stilz does not deny that provisional rights function as a conceptual link between state of nature and civil condition (as that condition in which property is conclusive). She concedes that they come with political obligations, thus serving ‘as a prerequisite to the future establishment of a civil condition’ (Stilz 2014 p. 213). Consequentially, ‘stateless people may wrong one another by refusing to enter into the civil condition’ (Stilz 2014 p. 205). Yet, how come that the pertinent dynamic is no longer applicable in their encounter with would-be colonisers? Why do Europeans lack ‘the authorization to coerce others to fulfil their political obligations’ (Stilz 2014 p. 213, my emphasis), if by settling on and thus making claims to their land?²³ Stilz’ answer to this question draws on the idea that the duty to enter the state (and the authorisation to coerce others to do so) is conditional on our physical coexistence being unavoidable rather than resulting from ‘nature or chance’. European would-be colonisers bring about the pertinent interaction with non-state peoples wilfully and could easily avoid it by ‘leaving their vicinity’ (Stilz 2014 p. 207). This is why the process of state entrance does not get off the ground. Stilz thus opts for a reading of Kant’s ‘unavoidability clause’ according to which the need to enter the civil condition is contingent on a certain configuration of people at a particular geographic location. This argument is reminiscent of Jeremy Waldron’s (2011) similarly empiricised version of Kant’s unavoidability clause that he dubs the ‘proximity principle’.

²² The distinction between instrumental and noninstrumental readings has generally been blurred somewhat in the course its absorption into contemporary liberal theory (Applbaum 2007; Stilz 2011; Valentini 2012). ²³ Sankar Muthu (2009 p. 208) even goes a step further in denying such a duty on the grounds that non-state peoples could easily exit their social group. Only within groups with a sedentary lifestyle, he thinks, are internal interactions sustainable and unavoidable enough to trigger a duty of state entrance.

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However, as I hope to have shown in previous chapters, this misconstrues the modality at stake. When Kant talks about unavoidability of contact and the way rights relations become pertinent among those living ‘side by side’, something other than what I called subjectively contingent proximity relations is at stake. Keep in mind that Kant introduces the idea of ‘unavoidable physical interaction’ in the context of remarking on the earth’s circumference (e.g., DoR 6:262; PP 8:358). In Chapter 1, I called the fact that the earth’s surface is spherical objectively contingent. While it could have been otherwise, it is not a result of human agency: it constitutes the objectively given spatial condition in which earth dwellers are constrained to establish possible rights relations. Consequently, what matters in the pertinent context is the necessity of interaction and the ensuing sense in which, ultimately, nobody can avoid living side by side with all others. The fact that we cannot just disperse infinitely in the way we could if we did, for instance, live on an unbounded plain, is juridically relevant. In a nutshell, it seems that Kant is not interested in the question whether an actual encounter has been brought about deliberately or could also have been avoided. Rather, the way in which the earth is shaped makes it impossible for us to avoid interaction once and for all such that we must somehow put up and get to terms with being close to each other. This insight, however, blocks Stilz’s intended move and throws her back onto the shaky terrain she entered by invoking the notion of a provisional right. It thus remains unclear how we can ascribe the relevant juridical status (somewhat analogous to that of propertied citizens) to non-state peoples without following the implications of the ensuing argumentative logic all the way down.

3.3.3 Ripstein on taking private rights across borders Like Stilz, Arthur Ripstein (2014, 2021a) is committed to the rationalist account of property and the state. Accordingly, he wants to at least leave open the possibility that non-state peoples may themselves have a duty to enter the state with one another. What he denies is Europeans’ entitlement to rectify this wrong. In taking charge of stateless peoples’ affairs, Europeans wrongfully and ‘forcibly deprive’ them of the ‘possibility of making their own arrangements’ (Ripstein 2014 p. 168). Regardless of whether we are aware of non-state peoples’ obligations or not, Ripstein argues, what we do know is that our own obligations do not extend so far as to tell them what to do: we must not take it upon ourselves to make arrangements for them. Even if we do not know ‘who

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is in charge’ around here, we can reliably rule out ourselves. Like Stilz, Ripstein thus opts for an essentially anti-paternalist strategy.²⁴ He blocks the extension from a particular moral conduct that (may) hold for members of one party, to the authorisation of a third-party to actively enforce this conduct for them; while X may be doing wrong, it simply lies outside Y’s sphere of authority to prevent X from doing it. I have no issue with this anti-paternalist argumentative strategy, which seems to capture an important aspect of Kant’s position. However, its success is predicated on our ability to distinguish interactions regulated by cosmopolitan right from interactions between private individuals in the state of nature. Ripstein is well aware that in the latter (but not the former) scenario, ‘everyone is entitled to use force to bring others into a rightful condition with them’ (Ripstein 2014 p. 145). We saw previously that Stilz helps herself to the idea of provisional property rights in order to suggest that non-state people do fit, at least on some level, into the property argument’s conceptual parameters. Ripstein is more sceptical whether, as newcomers, we are actually in a position to make a guess of this kind, about the extent to which non-state peoples correspond to the ideas of property and political community familiar to us. Instead, he stipulates that we should simply refrain from judging whether they instantiate a rightful (or rather a lawless) condition. Again, I find myself largely agreeing with Ripstein’s case for what is effectively a kind of epistemic humility. We saw previously that Kant gives away very little about non-state peoples’ form of social and political life. Yet, I am wary of the conclusion Ripstein draws from this. Any uncertainty about the kind of arrangement we have in front of us notwithstanding, he argues, we ‘must treat a nomadic or hunter-gatherer society as though it is in a rightful condition’ (Ripstein 2014 p. 165, my emphasis). Their actual juridical situation is completely irrelevant as far as Westerners’ juridical obligations towards them under cosmopolitan right are concerned. We can only understand this argumentative move against the background of Ripstein’s underlying view about the function of cosmopolitan right within Kant’s tripartite system of public law more generally. I have already indicated that cosmopolitan right closes a gap in Kant’s system of law: on their own, the right of a state and the right of nations would fail to conceptualise all human interactions as rights relations. It is important to notice that Ripstein focuses on a very specific problem: what happens to the private rights an individual has acquired ‘at home’ in case they find themselves (for whatever reasons) on ²⁴ Sankar Muthu (2009 p. 199) similarly grounds Kant’s take on nonstate peoples in anti-paternalist considerations, claiming that stateless people are ‘duty-bound to become civilised through their own internal efforts’.

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the territory of another legal order. For instance, are the goods they carry with them still ‘theirs’, or is their marriage still valid (Ripstein 2021a p. 239)?²⁵ Accordingly, ‘the first thing that cosmopolitan right must do—analytically first if not morally—is make it possible for private rights to travel’ (Ripstein 2021a p. 239). That is to say, cosmopolitan rights should explain why you are wronged when your coat is stolen abroad, your debt is not paid or if you are arbitrarily separated from your children. The thought is that while you can indeed bring your private rights with you as a traveller, you cannot bring your entire legal order. On Ripstein’s view, then, cosmopolitan right is concerned with private rights relations across boundaries. Accordingly, we can only conceptualise juridical rights and obligations that hold against other legal orders or its members (qua citizens); even obligations under cosmopolitan right conceptually presuppose that ‘everyone is always already a member of some legal order’ (Ripstein 2021a p. 251). By implication, there is no space really in this account, conceptually speaking, for nonstate collectives or their members. Ripstein is left in the somewhat awkward position to insist that we must regard any multitude of human beings we encounter abroad as already in a rightful condition. This, not by way of empirical hypothesis; the claim is not that members of nonstate peoples are actually part of a legal order, or that their collective form of life is sufficiently similar to states with regards to their constitution. Instead, what constrains the travellers’ comportment is simply a requirement of practical reason: Kant’s anticolonialism is based on a juridical assumption that must be regulative for a visitor arriving in an inhabited region of the earth, namely, that it is always already a legal order. It is on this basis that any newcomers ‘must seek the permission of its inhabitants to visit’ and ‘take every precaution to have interactions with those inhabitants governed by discussion rather than force’ (Ripstein 2021a p. 252). I welcome that Ripstein leaves the question of non-state peoples’ internal constitution to one side. I do not agree, however, that it is enough simply to insist that non-state peoples’ very ‘existence’ (Ripstein 2014 p. 165) imposes on their visitors the pertinent ‘obstacle to colonization’. We do need to know what it is about the existence of the former that limits the claims of the latter to the conditions of hospitality. Rights relations, including under cosmopolitan right, are reciprocally structured, such that we must be able to identify both parties as having juridical standing. ²⁵ In Kant and the Law of War (2021a), Ripstein treats Kant’s view of colonialism as a problem of the law of war (in particular ‘ius post bellum’) and hence to be addressed in the context of the right of nations as much as cosmopolitan right.

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I worry that Ripstein’s principal concern with the possibility of taking private right across borders curtails the ability of his account to systematically distinguish relations between European settlers and nomads from a private rights relation among individuals in the state of nature, in the first place. For it is bound to ‘stipulate away’ the fact that there are collectives who ostensibly do not live in a civil condition. Thus, it remains unclear why in one scenario we are bound to treat the party opposite hospitably, while in another scenario we can presumably simply settle in their vicinity and initiate a property-based dynamic of state entrance. In a nutshell, Ripstein argues that all we need to know about the claims of non-state peoples are the limits of ours yet falls short in giving a plausible account of those limits.

3.4 The contextualist predicament I have now looked at two attempts to normatively structure the cosmopolitan encounter put forward by proponents of the rationalist account of Kant’s property argument. Stilz strains the argument so as to include non-state peoples, while Ripstein leaves the empirical question to one side and asks us to treat them as if in a rightful condition. Both, I argued, struggle to systematically separate the grounds of cosmopolitan right from the dynamic of state entrance and, consequently, to account for a kind of rights relation that differs from that among propertied citizens. If the entire juridical landscape is tightly knit around property, as it is on the rationalist account, non-state peoples appear not to fit into it. This opens the door for approaching Kant’s anticolonialism against the background of a different, the contextualist account of property and the state.

3.4.1 Contextualism about property and the state Proponents of the contextualist account frequently take their cue precisely from Kant’s discussion of cosmopolitan right. Indeed, what can be read as Kant’s implicit denial, there, of a universal duty to adopt property practices and statehood, sits uneasily with the supposed unconditionality of both institutions that Kant seems to propound in the Doctrine of Right’s earlier sections. In this vein, a number of interpreters have proposed to contextualise the obligation to enter the state as well as the authorisation to coerce others to do so. On the emerging view, as defended for instance by Peter Niesen (2006

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p. 268), the duty of state entrance is not actually unconditional but instead ‘wedded to a specific vision of individual private property as the exclusion of others from the use of objects’. Similarly, Sankar Muthu argues that ‘the problems that the state is created for […] are those of settled peoples’ (Muthu 2009 p. 207).²⁶ These authors defend what I want to call a contextual account of Kant’s property argument, which has been developed most systematically by Katrin Flikschuh (2017 pp. 37–68). Flikschuh’s attempt to restrict or contextualise the property argument’s scope of validity unfolds against the background of a wider methodological picture. Emphasising Kant’s profound non-foundationalism, what she calls his method of ‘recursive justification’ does not start from indubitable first premises or innate ideas but from first-personally affirmed experiential (hence fallible and revisable) conditions, i.e., a subject’s own cognitive awareness of her having an experience of a specified kind (Flikschuh 2017 pp. 42–46).²⁷ Recursive justification regressively ‘turns in’ on this premise by inquiring into its subjective possibility conditions, that is, the transcendentally necessary (mind-dependent) presuppositions that a person must accept as valid for her given that she affirms the experience in question. Flikschuh (2017 p. 46) puts particular emphasis on the strictly first-personal nature of the recursive argumentative structure, distinguishing sharply ‘between subjective necessity and objective validity (reality)’.²⁸ That is to say, the justificatory regress affords the agent insight into that which they must accept about themselves given their initial affirmation of the relevant experiential premise. This is particularly pivotal in the context of practical reasoning, where the bindingness of recursively vindicated principles of action is limited to the reasoning subject herself and cannot be third-personally attributed to others given that they may not share the relevant experiential conditions. The thought is that I cannot infer a reason’s objective or indeed universal bindingness for everyone from its unconditional validity for me.

²⁶ Muthu (2009 p. 185) points to Kant’s claim in the Idea that where people depend for their livelihood on the cultivation of the soil (and on the planting of trees in particular), they require permanent accommodation; and the defence of such property against all encroachment requires a large number of people who are prepared to assist one another. Hence, those who adopted this way of life could no longer live in scattered family units, but had to stick together and set up village communities (incorrectly described as towns) in order to protect their property against savage hunters or tribes of pastoral nomads. (IUH 8:119) ²⁷ Flikschuh borrows the term recursive justification from O’Neill (1989 pp. 21, 23, 43). ²⁸ This makes for an important contrast with other proponents of (versions of ) the recursive reading such as O’Neill, Korsgaard, or Ameriks, who typically vindicate the relevant initial experiential context as something we cannot but hold such that the ensuing regress accrues a novel (characteristically Kantian) kind of objectivity that is not mind-independent but indexed to the human standpoint.

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In line with this methodological stance, Flikschuh reads Kant’s property argument ‘against the grain’ (Flikschuh 2017 p. 37), as a recursive inquiry into the moral conditions of the possibility of existing property relations. To be more precise, the relevant first-personally affirmed experience consists in the fact that I raise (what I regard as) morally valid property claims against you. This claim in turn—to be more precise, the intelligible relation I thereby implicitly invoke—is morally possible only in the civil condition. Hence, the duty of state entrance is a necessary presupposition of the rightfulness of my property claim against you. The question, that is to say, is not whether I can claim objects of my choice as ‘rightfully mine’ (DoR 6:245), but rather how I can do so, morally speaking. The answer is that the possibility of property is contingent on state entrance. For, only under public authority is the kind of moral relationship that our conventional property practices presuppose possible. Notice that the experiential context Kant is said to have in mind is not some kind of prepolitical property convention, which then leads (in the course of a historical sequence) into the state. Rather, he takes the empirical reality of a system of publicly enforced property rights as given and asks for its condition of possibility. That is to say, the argument proceeds from within the state context. Flikschuh (2017 p. 56) finds evidence for this view already in the opening paragraphs of the Doctrine of Right’s Introduction (DoR 6:230), where Kant characterises his project as providing a normative criterion—(‘what is right’ in a moral-juridical sense) for a positively given body of laws (‘what is laid down as right’). Kant’s question does not seem to be whether a system of public law making (i.e., statehood) is possible, but how it is morally possible. The regulation of reciprocally raised property claims is a core feature of such a system of public law making and, as it turns out, its justificatory ground. Flikschuh (2017 p. 56) moreover alleges that, throughout the section on private right, Kant presupposes that his readers are familiar with the concept and practice of property rights and argues by way of an interpersonal rather than thirdpersonal idiom, i.e., in terms of ‘acts of acquisition I cannot avoid engaging in and of the unavoidable effects of my actions upon you’ (Flikschuh 2017 p. 56). To sum up, Flikschuh’s contextualist account reconstructs Kant’s property argument as providing reflexive insight into the moral requirement of state entrance as a (recursively) necessary condition of reciprocally raised property claims: given that I raise property claims against others, I ought to enter into the state with them (Flikschuh 2017 p. 55). Only the state as a particular, territorially structured institutional arrangement with a claim to exercise its authority over a specified geographical area makes property morally possible.

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Crucially, from the fact that the duty of state entrance is triggered by, and hence premised on, the existence of a practice of property claims, it follows that anyone who does not engage in such a practice—as is the case, qua hypothesis, with non-state peoples—simply does not incur the pertinent duty in the first place.²⁹ Kant can thus simultaneously (and consistently) affirm an unconditionally valid duty of state entrance for those who share the relevant experiential context, while denying it in relation to others.

3.4.2 Colonialism as a performative contradiction The contextualist account pushes back against an idea held dearly by proponents of the rationalist account and indeed widely considered to be one of the Doctrine of Right’s stalwart commitments: the idea of the modern state as a universally required form of political organisation. In developing this line of thought, Flikschuh’s regressive reading is meant to show that Kant derives the duty of state entrance from the contingent act of acquisition, such that nonstate peoples lack the pertinent duty. What it does not show—and Flikschuh is well aware of that—is that settlers are wrong in depriving them of their lands by simply acquiring it. More generally speaking, while her account explains why one party (members of states) of the cosmopolitan encounter has a duty that the other side (members of non-state peoples) lacks, the question remains what constrains the comportment of the former as they encounter the latter. In response, Flikschuh points out that to say that non-state peoples themselves may not be in a rightful condition is not to say that Western settlers do not stand in a relation of right with them (Flikschuh 2017 pp. 59–61; see also Flikschuh & Ajei 2014). In particular, the very fact that the latter are themselves in a rightful condition binds them to a certain form of interaction with non-state peoples. In other words, by virtue of their membership of already established polities from which they have ‘sailed forth’, Westerners do not only have obligations of domestic and international right, but also of cosmopolitan right. Hence, they are bound in their interactions with non-state peoples by the very narrow confines of the right to hospitality: they can offer themselves for trade and commerce and attempt contact with those on whose shores ²⁹ The encounter between Western emissaries and non-state peoples itself is crucial for this narrative, for only the actual confrontation with ways of doing things otherwise is able to unsettle Westerners’ assumption as to the universality of their own experiential context and to reflexively acknowledge the contingency of their own duty to enter the state (and, as a corollary, non-state people’s lack thereof ).

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they find themselves; what they cannot do is simply acquire territory with the intention of unleashing the property-based dynamic of state entrance. Their own public rightful condition ‘back home’ binds would-be colonisers’ conduct on whichever soil they set foot and, more generally, differentiates the cosmopolitan encounter from that between individuals in a state of nature. Despite their fundamental disagreement regarding the scope of Kant’s property argument, Flikschuh (in joint work with Martin Ajei) thus shares Ripstein’s view that ‘cosmopolitan rights claimants act in a distinctively public capacity’ (Flikschuh & Ajei 2014 p. 237). In other words, Western emissaries are bound to comport themselves in a certain way by virtue of their membership in the state from which they originate; their obligations vis-à-vis stateless peoples are based on their own juridical standing as state citizens. However, we still need to account for the nature of the requisite obligations. What is it about non-state peoples that binds Western travellers to comport themselves in the requisite way? Looming in the background at this point is not (as it was for proponents of the rationalist account) the coercible duty of state entrance; Flikschuh circumvents that problem by indexing the relevant dynamic to an ‘experiential context’, the presence of property conventions, that is confined to a particular form of life. The contextualist predicament, instead, it how to conceptualise any kind of juridical constraint without the experiential context of a shared property practice. What compels Western emissaries to identify their counterparts as juridical subjects in the first place and to constrain their comportment accordingly? Given her wider rejection of rights foundationalism, Flikschuh is reluctant to ascribe the requisite standing to non-state peoples on the basis of what she conceptualises as ‘third-personal considerations’. On her view, any kind of formal juridical standing manifests itself only indirectly through empirically instantiated rights relations.³⁰ In the pertinent context, Flikschuh (and Ajei) help themselves to the normative implications of Western settlers’ widespread de facto (though abusive) appeal to hospitality rights in their interactions with non-state peoples (Flikschuh & Ajei 2014 pp. 232–233). The idea is that by virtue of invoking a juridical concept such as hospitality, they necessarily presuppose the formal juridical equality of their claim’s addressees. And in subsequently denying their counterparts the kind of treatment to which their claims’ reciprocal structure binds them, they commit a ‘critical conceptual error’: they use a juridical concept in order to justify an action that is ³⁰ See also her related argument that the innate right, understood as a relation of reciprocally acknowledged legal imputability, requires acquired right for its empirical instantiation (Flikschuh 2017 pp. 93–95).

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inconsistent with rights talk in general. The purported rights claim fails to meet the condition of its own validity. This move strikes me as elegant given that, historically speaking, appeals to hospitality did indeed frequently serve as a pretext for colonial conquest. Conceptually, however, I am not persuaded by the idea that the wrong of colonial conquest lies in the ‘colonizers’ ‘Jesuistic’ appeal to traditional substantive hospitality rights’ (Flikschuh & Ajei 2014 p. 230). Juridical obligations, including those we have under cosmopolitan right, are not mere obligations of rational consistency demanding that we use the pertinent concepts consistently. Instead, they require that we treat relevant others as required by their juridical standing. Hence, we can violate our obligations of cosmopolitan right regardless of the juridical concepts we de facto invoke for specious justificatory purposes. The problem with the colonist is not so much that she ‘misunderstands the language of rights reciprocity’ (Flikschuh & Ajei 2014 p. 233) but that fails to respect rights reciprocity as it pertains to cosmopolitan right. She fails to treat another party in a way they can claim to be treated by virtue of their juridical standing. Put differently, my worry is that if we understand the wrong of colonialism as a kind of performative contradiction, i.e., as a violation of norms the perpetrator has bound herself to by using rights language in a particular way, we have not really made sense of it in juridical terms. Juridical obligations are reciprocal in the sense that they correspond to and are grounded in the validity of the claims of relevant others. On Flikschuh’s account, those others remain juridically invisible: they do not even appear as a party with standing on par with their visitors. Reversely, it is not clear at all on which grounds Western emissaries are entitled to make their offers ‘without the other being authorized to behave toward it as an enemy because it has made this attempt’ (DoR 6:353), or to complain if their good faith efforts are met with hostility or violence rather than hospitality. Given that non-state peoples do not share the requisite experiential context (of membership in a civil condition), how can we ascribe to them any obligations under cosmopolitan right? It is simply not obvious on which basis the visitors can ‘expect to be treated honourably by the nomads in return’ (Flikschuh 2017 p. 60). The larger underlying problem seems to be that without a shared firstperson perspective to fall back on, we are left with a kind of juridical void. As Flikschuh herself puts it, the two parties of the cosmopolitan encounter lack a ‘moral meta-language’ (Flikschuh 2017 p. 60), i.e., a shared juridical vocabulary or perspective that could normatively structure their dealings. On some level, this hits the mark: the ways of collective life and forms of

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political association respectively familiar to Western travellers and their stateless hosts differ so fundamentally that they do not encounter each other already with shared principles (for instance concerning land use) or institutions in hand that could regulate their coexistence. This is not to say, however, that the encounter itself cannot be structured by juridical norms, as Kant seems determined to do by conceptualising it as a rights relation. To sum up, Flikschuh’s contextualist account—i.e., the idea that Kant’s justification of statehood falls out of a recursive reflection on the conditions of possibility of contingently raised property claims such that non-state peoples, who make no claims to objects as their own, lack the pertinent duty of state entrance—does not at all make it easier to come to terms with the cosmopolitan encounter. Given that she ties the obligations of propertied citizens under cosmopolitan law to their rightful condition ‘at home’, we lack an explanation for how non-state peoples can figure as equal participants in the cosmopolitan encounter. For once there is no shared experiential context (i.e., property practice) to fall back on, there is no foundation for juridical claims in interaction, either. Something more needs to be said, hence, about the juridical standing of non-state peoples themselves under cosmopolitan right.

3.5 Cosmopolitan right from the global standpoint The fact that Flikschuh struggles to make sense of the cosmopolitan encounter in terms of a genuine juridical relation despite the fact that she fundamentally reconceives of the property argument’s scope of validity directs us to a structural feature her account shares with those of Stilz and Ripstein respectively: all three authors remain faithful to the idea that cosmopolitan right is itself property-mediated. Ripstein and Stilz, on the one hand, insist that the cosmopolitan encounter can be likened to an encounter among propertied citizens (from different civil conditions). Flikschuh, by contrast, insists that any obligations under cosmopolitan right are ‘ambassadorial rights dut[ies] of citizens on business abroad’ (Flikschuh & Ajei 2014 p. 237). Against this background, she struggles to account for the juridical standing of non-state peoples and their members under cosmopolitan right. In the absence of a shared experiential context and hence a mutually accessible normative standpoint, it is impossible to conceive of the relation between propertied citizens and propertyless nomads as juridical. Ultimately, neither account is in a position to make sense of the cosmopolitan encounter in terms of a rights relation between

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juridical subjects each with reciprocal claims to hospitable treatment, or to show specifically why Western emissaries are constrained by cosmopolitan right to offer themselves for ‘commerce’. I shall now propose that Kant’s grounded cosmopolitanism provides us with the concepts needed to get out of this predicament and to explain why Western travellers are subject to narrow constraints under cosmopolitan right. What binds them to comport themselves accordingly vis-à-vis non-state peoples is their shared earth dwellership, i.e., their membership in the disjunctive community of original common possession. Moreover, I hold that this claim does not in fact commit us to take sides in the dispute between rationalist and contextualist accounts of property and the state. From the preceding discussion, I take it that the textual evidence in this respect remains genuinely inconclusive. From the perspective of Kant’s property argument, which so many interpreters (not implausibly) put front and centre of their interpretation of the Doctrine of Right, it is hard to fathom why any agent should be exempt from its logic. If we focus primarily on cosmopolitan right, however, the supposed universality of statism is clearly on shakier grounds. Yet, I want to suggest that we can make sense of Kant’s anticolonialism while leaving this textual predicament to one side. At the centre of my argument is consequently not the status of the property argument itself, but its justificatory relation with the argument from earth dwellership. I claim that we can conceptualise this relation as a regress to the global standpoint.

3.5.1 Regressing to the global standpoint Let us leave the context of cosmopolitan right behind for a moment and return to the earlier section on private right, where Kant first introduces his grounded cosmopolitanism. Recall from preceding chapters that what I called the standard reading absorbs the pertinent passage into the property argument, i.e., an argumentative sequence that proceeds from innate to acquired right and further into the state. Specifically, in licensing original acquisition of land, the notion of original common possession initiates a particularisation narrative in the course of which the earth is carved up by individuals and states. My aim has been to excise the argument from earth dwellership from the larger context of the property argument. I now want to make more explicit an idea that I have previously only hinted at: that the argument proceeds by way of a regress from reflection on the moral possibility of property (and the ensuing duty of state entrance), to a reflection on the possibility of having a place to act at all, as well

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as the ensuing need to think of the earth’s surface as possessed in common, as its condition of possibility. We do not have to answer the question whether the act of unilateral acquisition should itself be conceived as a contingent experiential starting point (as the contextualist account has it) or one that is unconditionally required (as the rationalist account has it). What matters for our purposes, instead, is that Kant depicts a regress from a standpoint that is not shared by both sides of the cosmopolitan encounter, to one that is. The aim of this regress, I would like to suggest, is to bring to light the way in which having a place to be somewhere is a necessary presupposition not only of claiming rights over objects of our choice, but of juridical agency within the spatial constraints set by the earth’s surface, in the first place. From the fact that we regulate our external interactions on the basis of a publicly enforced scheme of property, we regress to the need to acknowledge that our (unavoidable) claim to be somewhere unites us with all other earth dwellers in a disjunctive community. Textually, my proposal hinges on a particular interpretation of Kant’s claim that unilateral acquisition ‘is based on’ (DoR 6:262) original common possession. Proponents of the standard reading take this to confirm that the necessary inference from a state of original common possession (where everyone only has to a right to be somewhere), to unilateral acquisition of land (as initiating a privatisation process). However, it strikes me that the German Grund der Mo¨glichkeit (‘condition of possibility’) is more plausibly read as suggesting that original common possession is a presupposition of unilateral acquisition rather than entailing the need for it. What Kant seems to be saying is that propertied citizens must necessarily also think of themselves as earth dwellers. We can conceive of this argumentative move as a regress to the global standpoint. Drawing on Flikschuh’s conceptual vocabulary (without thereby necessarily committing to her contextualism as a whole), it reveals that there is indeed an ‘experiential context’ shared by both parties of the cosmopolitan encounter that serves as a basis on which they can normatively structure their interaction: the reflexive awareness of shared earth dwellership, grounded in the simple fact that they cannot but claim a place on earth for themselves. This is what grounds both the obligation of state citizens to think of themselves as in a cosmopolitan relation with members of non-state peoples, and their right against the hosts not to be treated ‘as an enemy’ (DoR 6:353). In other words, Western emissaries and their hosts are bound to interact with distant strangers from the global standpoint. Consequently, obligations under cosmopolitan right are not obligations we have by virtue of being propertied citizens, but by virtue of being earth dwellers. It addresses us qua membership

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in the disjunctive community of original common possession, which is independent of our membership in particular institutions or collectives. The reflexive awareness of our systematic interdependence with other agents in a world of limited space is not dependent or predicated on the property argument; nor are the pertinent (formal) constraints on our comportment when we engage with those others with the aim of finding shared terms of coexistence. The regress to the global standpoint extends the scope of our obligations beyond those with whom we are in a property-mediated relation to all participants in the disjunctive community. From the perspective of propertied citizens who have sailed forth from their state, this allows us to distinguish clearly, and in notable contrast to alternative accounts, between two different kinds of juridical obligations: on the one hand, they have scope-restricted obligations of domestic right towards one another and their states. On the other hand, they have obligations of cosmopolitan right towards members of non-state peoples qua earth dwellership. These are obligations to act from the global standpoint vis-a-vis all those with whom they are in a disjunctive community in virtue sharing the earth’s spherical surface. Conceived as a constrained first-person perspective, this standpoint binds them to a particular mode of comportment. As mentioned in Chapter 2, it does not issue obligations to acknowledge certain natural law-like entitlements to particular parts of the earth’s surface, but to treat distant strangers as justificatory equals in coming to terms with the fact of our concurrent existence on the earth’s spherical surface.

3.5.2 Cosmopolitanism as self-constraint In Chapter 2, I argued that Kant’s global standpoint does not provide us with shared institutions or principles that could normatively structure interactions among a plurality of agents and collectives. Instead, it issues a set of obligations that prescribes how to interact precisely in the absence of shared foundations. In addressing the question how to comport ourselves towards distant strangers and in the face of unfamiliar forms of collective life or political association, Kant’s grounded cosmopolitan becomes pertinent where the coexistence of a plurality of agents is at stake that do not naturally or harmoniously converge on shared principles. I further indicated that Kant’s global standpoint is not a single standpoint on the whole but constituted by a plurality of perspectives in disjunctive interaction. Recall that, as we moved from the epistemic to the juridical domain, the notion of disjunction shifted from a merely logical category

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that depicts relations of incompatibility between objects inhabiting the same space, to a normative one depicting the way in which agents with diverse and potentially incompatible sets of principles and forms of political organisation nevertheless share a common world. Picking up on this strand of thought, the present chapter confirms that Kant’s grounded cosmopolitanism enables us to accommodate deep differences among collective ways of life.³¹ Kant’s community of earth dwellers is not a homogenous community of individuals already united in shared principles or institutions, but it is made up of a plurality of perspectives in disjunctive relation. What the participants of this community share is the ability to find mutually agreed terms of coexistence despite their differences.³² From the visitor’s perspective, Kant’s grounded cosmopolitanism is thus fundamentally a cosmopolitanism of reflexive self-constraint in the face of unfamiliar others. To take the diversity of perspectives seriously is to constrain oneself in the face of it. Yet, it is not the kind of self-constraint Valdez associated with an essentially inward-looking retreat from the world. Instead, it is a kind of selfconstraint that expresses our openness towards the radically different and our willingness to accommodate it. Rather than going around ‘blessing’ the world with their supposed civilisational achievements, the would-be colonist should limit themselves to cautiously approaching distant strangers abroad. This is precisely why the normativity of cosmopolitan right is such as curious normativity of attempts and offers—Western emissaries or travellers (whatever the intention of their visit) have a formal, communicative right to attempt contact with distant strangers and offer themselves for exchange and interaction. While they can claim to be treated hospitably, their attempts and offers are by no means guaranteed to be accepted or reciprocated. In a somewhat curious departure from Kant’s general conception of rights relations as intrinsically coercive, Western emissaries must not coerce non-state peoples to take up these offers of contact. They can claim but not enforce their ‘right to make this attempt without the other being authorised to behave toward it as an enemy because [they have] made this attempt’ (DoR 6:352).

³¹ Notice also that this fits nicely with my argument from the first section in the present chapter. It is through a systematically developed philosophy of right that Kant is in a position to conceptualise non-state collectives who find themselves at the receiving end of colonial activity as juridical equals and, consequently, to condemn such activity as unjust. ³² This is broadly in line with what Sankar Muthu (2009 p. 204) describes as Kant’s ‘pluralistic defense of peoples’ freedom to lead their collective ways of life as they see fit’. Muthu takes the notion res merae facultatis to depict that part of the faculty of desire by which individuals exercise their cultural freedom to make distinctively ‘human choices’ that necessarily yield a plurality of perspectives and practices.

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Kant’s remark that we need to interact with non-state peoples on a contractual basis (DoR 6:353) reflects this predicament. In an earlier section of the Doctrine of Right, Kant had described a contractual relation as the acquisition of the right to another person’s deed (which may simply consist in handing over an object one has acquired) through a voluntary and mutually advantageous exchange (DoR 6:272–274). One party (A) acquires another party’s (B) action, while B acquires a right to whatever A has promised in return. Characteristically, a contractual interaction consists of two parts or moments (Vanhaute 2014 pp. 136–9): someone making an offer and someone else taking up or assenting to that offer. Agent A offers their bike to B, while B offers a piano lesson in return. Only if both parties have a positive and voluntary intention to exchange deeds do they enter a contractual relation, such that their wills can be conceptualised as ‘united’ in agreement (DoR 6:272). This structure is very much reflected in the cosmopolitan encounter: while Western travellers are perfectly entitled to make an offer to engage in commerce (widely understood), whether the interaction actually comes about depends on whether the other side takes up that offer; it cannot be compelled. The contractual vocabulary is puzzling yet indicative in another respect. A contractual relation actually has a specific technical meaning for Kant. In the Doctrine of Right’s section on private right (DoR 6:284), contract is introduced as one of three ‘instances’ of acquired right alongside property and status relations. Given that Kant likens a contract to a property exchange, it should not come as a surprise that he takes non-state peoples—who, following my earlier argument, do not share in Western property practices—to be ‘ignoran[t]’ (DoR 6:353) also of the kind of vocabulary that would allow them to enter contracts in the first place.³³ I take this to highlight how striking the mutual unfamiliarity is between both parties in the cosmopolitan encounter. This is not to say, however, that wouldbe colonisers do not know very well how to tell the difference between honest attempts to propose good faith or fair terms of interaction, and ‘fraudulent’ offers, for instance when it comes to purchasing nomadic land. So even if Westerners recognise the very idea of a contractual interaction to be parochial, they are duty-bound to ‘comport themselves honorably towards the nomads in the only way they, the settlers, know, i.e., by offering to engage with the nomads

³³ Kant’s requirement to interact with nonstate peoples on a contractual basis has been much ridiculed by critics in the past, who took it to offer ‘proof of Kant’s incapacity to judge of culturalhistorical things’, since ‘primitive peoples’, according to one critic, ‘lack concepts of right, [and thus] treaties [with them] cannot be made, as Kant demands’ (Medicus 1900; cited in Wood 1999 p. 342 fn.8).

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on what the settlers consider to be rightful terms’ (Flikschuh 2017 p. 60). This difference, I would like to suggest, is one between either interacting with distant strangers from the global standpoint or denying their earth dwellership by deceiving them through ‘specious’ (DoR 6:353) appeal to contractual conventions. Merely in so doing, they have not yet overcome the fact that they encounter one another without shared principles, practices or institutions in hand that might actually serve to regulate their coexistence. What it does, however, is get a process off the ground, a process in the course of which they can get to know and understand each other (Flikschuh 2017 pp. 59–61). Ideally, this process may ‘yield some modicum of mutual understanding’ (Muthu 2009 p. 90) that leads both side to ‘enter peaceably into relations with one another, which can eventually become publicly lawful and so finally ring the human race ever closer to a cosmopolitan constitution’ (PP 8:358).

3.6 Conclusion The aim of the present chapter was to turn to cosmopolitan right in order to spell out the normative implications of Kant’s grounded cosmopolitanism and its structural role in the Doctrine of Right as a whole. Foregrounding Kant’s anticolonialism, I argued that the interaction between travellers and their hosts is normatively structured by their shared earth dwellership. Substantively, this entails that newcomers may offer themselves for interaction and exchange but must not stay or settle without explicit permission. While it is hard to deny that Kant’s critique of colonialism in cosmopolitan right is ultimately politically motivated, the argument from earth dwellership provides the conceptual resources to coherently fit this critique into his philosophy of right, i.e., to articulate it in distinctly juridical terms. The main systematic implication of this chapter is that Kant’s grounded cosmopolitanism is not a cosmopolitanism of propertied citizens. Neither rights nor obligations under cosmopolitan right, that is to say, are predicated on (property-mediated) membership in a state. Against the avowed position for instance of Flikschuh and Ripstein respectively, I argued that cosmopolitan right does not address individuals qua state citizens. Reaching this conclusion did not even require that I take a conclusive stance on the status of Kant’s property argument itself and thus on the question whether members of nonstate peoples (despite lacking a shared property practice) have a duty to enter the state vis-à-vis each other. What matters is that cosmopolitan right is explicitly tasked to structure interactions among members of different forms of

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political association, statist and nonstatist alike. The shared normative standpoint to which they can refer in interaction is their joint membership in the disjunctive community of original possession, hence their shared capacity as earth dwellers to come to terms with the fact of their concurrent coexistence in limited space. Textually, I reconstructed a recursive argumentative move from Kant’s reflection on the possibility of property (and the ensuing duty of state entrance), to the more fundamental domain spelling out the moral implications of embodied agency under spatial constraints. I construed this as a regress to the global standpoint. Kant’s grounded cosmopolitanism, this chapter has shown, is a cosmopolitanism of juridical self-constraint in the face of real diversity and unfamiliarity. Hence, it addresses a very specific question that would arise (in this precise way) neither in something like a global state of nature, nor in a world exclusively divided into states: the question which norms apply to the interactions between members of very different forms of collective life and political association who have to come to terms with the fact that they ‘cannot avoid living side by side with all others’ (6:307).

4 The Right to Visit (II) Mobility as Juridical Agency

In Chapters 1 and 2 of this book, I argued that Kant’s community of original common possession depicts a community of individuals who share the predicament of concurrent existence on the earth’s spherical surface. Its participants find themselves in a relation of ‘possible physical interaction’ by virtue of each unavoidably occupying a shared space. In order to spell out the normative implications of this thought and hence its role in the Doctrine of Right’s larger conceptual structure, Chapter 3 turned to the category of cosmopolitan right. In a first step, I explored Kant’s juridical critique of colonialism and thus the constraining part of the right to visit, i.e., that which it prohibits. It is shared earth dwellership, I argued, which constrains Western emissaries to offer themselves for a wide range of interactions vis-à-vis non-state peoples they encounter abroad. As I mentioned in Chapter 3, the cosmopolitan right to visit does not only contain a limiting but also an authorising component. Hence, I now turn to the second, complementary dimension of cosmopolitan right, which is concerned with cosmopolitan mobility. For, the right to visit is not only a right to be treated hospitably upon arrival on foreign shores. It is also a right to move around freely and without hindrance on the earth’s surface in order to seek what Kant calls ‘commerce’ in the first place. In Perpetual Peace, Kant affirms that the permission to travel and ‘present oneself for society’ everywhere enables ‘distant parts of the world [to] enter peaceably into relations with one another, which can eventually become publicly lawful and so finally bring the human race ever closer to a cosmopolitan constitution’ (PP 8:358). And in the Doctrine of Right, he speaks of the ‘right of citizens of the world to try to establish community with all and, to this end, to visit all regions of the earth’ (DoR 6:353). To understand why Kant includes in cosmopolitan right such a right to roam the earth’s surface—a public right of way, as it were—is the purpose of this chapter.

Kant’s Grounded Cosmopolitanism. Jakob Huber, Oxford University Press. © Jakob Huber (2022). DOI: 10.1093/oso/9780192844040.003.0005

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My aim is to show that individuals can claim such a right to roam the earth as earth dwellers. As cosmopolitan agents ‘on the move’, they create the conditions for lawful peace among the entire cosmopolitan plurality, including both states and non-state peoples. Global mobility is a fundamental precondition for transforming the disjunctive community of original common possession into a juridical community of legal subjects. Kant’s grounded cosmopolitan thus contains a distinct justification for global mobility rights, which can be brought to bear both vis-à-vis individuals with exclusive claims over land (i.e., propertied citizens) and collectives with exclusive claims over territory (i.e., states). The argument proceeds as follows. I start by showing that the standard reading of original common possession cannot make sense of the mobility aspect of cosmopolitan right (Section 4.1). For, as the earth’s surface is being particularised by individuals and states, our presence at some place is juridically protected only insofar as it is inadvertent and involuntary. Put differently, if cosmopolitan right did in fact articulate a residual right to be somewhere, this right would not entitle me to be anywhere other than the place I happen to occupy through no fault of my own. I then proceed to develop my own account through an analysis of Kant’s threefold system of public right that conceptualises distinct though interlocking forms of right at state, international, and cosmopolitan levels (Section 4.2). Enigmatically, both domains of right beyond the state are placed in the section on public right, thus ostensibly belonging to a distinctly institutional kind of normativity, yet characterised as noncoercive. I argue that they spell out the conditions for bringing about peace under conditions where a global institutional order can neither be established nor maintained by force. Constraining their own comportment in line with the specified norms is the only way states, non-state peoples and individuals can contribute to realising a ‘cosmopolitan constitution’ (PP 8:358) in the future. In his discussion of the right of nations, Kant spells out conditions for lawful peace among states under these conditions of juridical self-constraint (Section 4.3). States’ duty to comply with the natural laws of war as well as (subsequently) to join and comply with a voluntary federation is a corollary of their standing as moral agents with an artificial (sovereign) will, which rules out on conceptual grounds their subjection to a coercive institution. Analogously, Kant’s discussion of cosmopolitan right is concerned with the conditions of bringing under law the interactions of states and non-state peoples, or as Kant puts it, of a ‘possible union of all peoples [Vo¨lker] with a view to certain universal laws for their possible commerce’ (DoR 6:352). I show

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that these conditions include global mobility, for in roaming the earth’s surface with the aim of establishing cultural, intellectual, economic or political exchange, individuals learn to critically relate to one another as well the contingent practices and institutions that separate them (Section 4.4). The obligation of individual property owners as well as states to let outsiders pass through their territory is a corollary of their obligation to treat them as earth dwellers, i.e., as agents with the capacity to solve the shared predicament of concurrent existence within finite space. Earth dwellership thus limits exclusive claims to land or territory to the conditions of global mobility.

4.1 Whence cosmopolitan mobility? We saw in the preceding chapter that Kant is radically critical of European colonial activity in ‘newly discovered lands’ (DoR 6:353) and curtails legitimate behaviour to offers of interaction and exchange. In ‘limiting’ cosmopolitan right along these lines, he takes it up in particular with early modern scholastics from Vitoria to Suarez and Grotius. Proponents of this tradition had made the case for far-reaching hospitality rights that gave Western colonisers a license to occupy the territories of, and wage war against, those who would refuse to associate or enter into commercial relations with them (Niesen & Eberl 2011 p. 255; Ripstein 2009 p. 296). However, Kant does not go quite as far in his conclusion as some of his contemporaries did. At the other end of the discursive spectrum, there is a strand of ardent, if less well-known, scepticism against global mobility tout court in the European political thought of the time. Diderot, for instance, disapproved of travel on the (distinctly anti-imperial) basis that, away from home, even civilised and moral people would turn into corrupt and ferocious beasts (Muthu 2009 p. 194). Anthony Pagden (1994 p. 157) notes that, in so doing, Diderot picks up on an ancient European tradition to disapprove of travel, a tradition that ‘locates the source of all civility—which is, after all a life lived in cities (civitates)— in settled communities, and which looks upon all modes of nomadism as irredeemably savage. Crossing the ocean was an act contrary to nature, for the gods—or God—had filled half the world with water precisely in order to keep humans apart’. Kant’s insistence that ‘although the seas might seem to remove nations from any community with one another, they are the arrangements of nature most favouring their commerce by means of navigation’ (DoR 6:352) can be read as an explicit repudiation of this trope.

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Kant appears unwilling to draw isolationist conclusions from his critique of Western colonial activity abroad. In Perpetual Peace, he argues that the cosmopolitan right to visit includes a license to ‘make use of the right to the earth’s surface, which belongs to the human race in common, for possible commerce’ (PP 8:358). If appropriately constrained, it serves ‘distant parts of the world’ to ‘enter peaceably into relations with one another, which can eventually become publicly lawful and so finally bring the human race ever closer to a cosmopolitan constitution’ (PP 8:358). And even in the Doctrine of Right, where his anticolonialism is at its sharpest, Kant continues to defend, if not celebrate, global mobility. The right ‘to visit all regions of the earth’ (DoR 6:353) is of such significance that even contemporary Europeans’ ‘possible abuse’ cannot ‘annul’ it. As already indicated, these passages highlight the authorising as opposed to the constraining aspect contained in the notion of a right to visit. Kant explicitly vindicates the entitlement of cosmopolitan right claimants to roam the earth’s surface in order to seek exchange and interaction of all kinds. From the perspective of intellectual history, Kant’s right to visit thus occupies an intriguing middle ground between two extremes with imperialist and isolations implications respectively. Interestingly, in contemporary interpretive debates, the mobility aspect of cosmopolitan right is similarly under pressure from two opposing directions. Particularly those authors who approach the issue from the perspective of contemporary debates about migration and membership tend to express disappointment about Kant’s rejection of open borders. His own moral universalism, they intimate, should have led him to endorse a more expansive global mobility regime including a right to stay and become a member or at the very least to be a guest.¹ Seyla Benhabib has arguably been the most vocal critic of the ‘unbridgeable gap’ (Benhabib 2004 p. 38), within Kant’s right to visit, between the right of temporary sojourn and the privilege (requiring the host’s express agreement) of permanent residency. In response, some have proposed to expand the humanitarian content of cosmopolitan right by putting forward an encompassing reading of Kant’s remark, in Perpetual Peace, that newcomers cannot be rejected if that would result in their ‘destruction’ [Untergang]. If that were to include, for instance, ‘mental destruction or incapacitating physical harm’ (Kleingeld 1998 p. 77; see also Reinhardt 2019 pp. 212–232), the protections under cosmopolitan right would apply even to a large array of contemporary refugees and arguably serve to account for what in modern parlance is known as the principle of ¹ This came to the surface, for instance, during the 2015 refugee ‘crises’ in Germany (see e.g., Niesen 2017a).

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non-refoulement.² I believe there is a somewhat unfortunate and systematically unrewarding tendency implicit in this line of critique to blend the question what Kant should have said given his other commitments, into the question what we would prefer him to have said with a view to our own normative concerns. We must not forget that the migratory dynamics Kant’s sought to address in his discussion of cosmopolitan right were fundamentally different from those of our contemporary world. Moreover, I have argued at length in earlier chapters against the broader claim that we should conceive of cosmopolitan right as equipping its claimants with anything like (needs-based) natural rights. Hence, at this point I shall put this challenge to one side and focus instead on the contrasting question: why does Kant even allow for a right to visit? This is a question much less frequently addressed in the literature. Yet, as I briefly indicated in Chapter 2, it ineluctably arises for proponents of what I have characterised as the standard reading of original common possession. Recall that this view conceptualises the notion as the justificatory starting point for a privatisation process in the course of which individuals appropriate land (thus particularising their initially unspecified right to be somewhere) and states enclose territory. Original common possession, on this view, serves as a ‘normative orientation point’ (Niesen 2021 p. 69) as we carve up the earth’s surface. Now, the process of unilateral acquisition is bound to bring about scenarios where some people find themselves on a piece of land involuntarily yet illegally (think of the shipwrecked crew washed ashore on foreign territory). In the extreme case, where the entire surface of the earth is under exclusive control, latecomers may even be left without any place they can legally occupy at all. The very rationale for introducing the possibility of property, which, according to this view, is to particularise our original right to be somewhere (Byrd & Hruschka 2010 p. 134), would thus be undermined. This, according to the standard reading, is the problem to which cosmopolitan right responds. It compensates latecomers by ascribing to them a right to be somewhere in case of involuntary presence and privatised land and/or territory. We are entitled to be physically present wherever we end up through no choice of our own, even if the relevant place is already under exclusive control. As a remedial right akin to the Grotian right of necessity, this cosmopolitan right can be ‘derived’ (Byrd & Hruschka 2010 p. 207) or ‘lingers’ (Vanhaute 2014 p. 129) from an original state of affairs, which is one of common possession. Cosmopolitan right, on this view, asks under which condition it is ² Benhabib (2004 p. 39) herself is sceptical of this strategy.

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legitimate for someone to disregard boundaries of state and private territories, and provides an answer by linking back individual holdings to original common possession and its corollary, the right to be somewhere. Notice that this remedial right only protects the kind of involuntary presence that, I have argued, Kant is no longer interested in when it comes to the Doctrine of Right. What, then, about encounters that are brought about voluntarily, as the mobility aspect of cosmopolitan right apparently allows for? I should clarify at this point that I take the relevant right to include, but not to be limited to, those parts of the earth’s surface that are not yet privatised, or those that must remain a common resource accessible to all, such as the seas or deserts.³ Niesen (2021 p. 73) is certainly correct to point out that Kant highlights the latter’s significance in providing a kind of a natural global infrastructure as well as the significance of ships and camels in allowing humans from different parts of the earth to ‘approach each other over these ownerless areas, and to utilise as a means of social interaction that right to the surface, which the human race holds in common’ (PP 8:358). However, I believe that Kant takes mobility rights to be claimable also by a person who has ‘arrived on the land of another’ (PP 8:358), i.e., an area that has already been acquired. Indeed, if global mobility were confined to the movement between the countries around the rim of a given sea, it would not amount to very much at all. Instead, I take it that the right of a traveller to move around freely effectively amounts to a right to infringe on foreign property or territory. Viewed from the perspective of Kant’s account of property, the former interferes with the latter’s right to determine, at any point in time, how and by whom what is ‘theirs’ is used. As Kleingeld (1998 p. 90) puts it, ‘the injunction to let the stranger use this property, even if it is perhaps a piece as small as the space needed for his or her body, seems to constitute an infringement upon the property rights of the owner’. Notice that, by entailment, a right to access and traverse any part of the earth’s surface also infringes on a state’s claim to exclusively control its territory. As Kant puts in the Doctrine of Right’s ‘General Remark B’, the sovereign is to be ‘regarded as the supreme proprietor (of the land)’ (DoR 6:323) in the sense that each particular piece of property in land is thought to be derived from a prior, institutional claim to jurisdiction. This tension between cosmopolitan mobility and individuals’ private property as well as states’ territorial jurisdiction, I want to argue, is particularly pressing for the standard reading. For this view rests on the assumption that ³ Niesen (2017b) proposes that there is in fact a second notion of original common possession in Kant: a nondisjunctive kind of continuous possession in common of the globe’s communicative infrastructure, which is permanently barred from privatisation by individual agents.

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the condition of original acquisition is left behind in the process of privatisation. As a corollary, ‘after such acquisition, others no longer have a rightful claim to use or occupy what is mine, and in the case of national territory this means that when a people has a rightful claim to the use and property of their land, foreigners do not, except when expressly permitted’ (Kleingeld 1998 p. 90); or as Niesen (2017a p. 104) puts it, ‘all unilateral acquisitions, but especially the statist control of territorial boundaries, turn surface movement into trespass’. We have seen that, by linking back private holdings and territorial claims to the rationale for introducing them (i.e., the disjunctive right to be somewhere), we can make space for a remedial right to temporary presence. On this basis, though, our presence at some place is juridically protected only insofar as it is inadvertent and involuntary. For, once the earth’s surface is fully carved up and all the land particularised, the original ‘right to be in a place other than the one an individual rightly occupies disappears, and with it the right to visit that other place’ (Byrd & Hruschka 2010 p. 207). The residual right to be somewhere would then not appear to entitle me to be anywhere other than the place I happen to occupy through no fault of my own. In other words, if cosmopolitan right is to be read as spelling out a kind of remedial entitlement that lingers from the original right to be somewhere in a scenario where all available space is particularised, there is no reason for it to include anything like a global mobility right. Arthur Ripstein (2021a pp. 250, 253) has tried to get around this impasse by linking the right to global mobility to the distinct juridical status all individuals have as members of the ‘global public’.⁴ Underlying this claim is a broader view about the importance of public roads in a political community (Ripstein 2009 pp. 232–266). The thought is that a system of right, in which free persons interact and land is subject to private ownership, requires a ‘system of public rights of way’ where ‘every member of the public has a right to pass and repass on public roads, and has that right purely as a member of the public’. (Ripstein 2021a p. 249). If a state’s territory were simply a patchwork of individually owned plots of land, we could only move around by crossing someone else’s plot and would have to ask for their permission. Hence the sovereign, as ‘supreme proprietor (of the land)’ (DoR 6:323),⁵ has the obligation and the authority to create a public infrastructure that enables all citizens to move around freely within the relevant territory. This includes the opportunity ‘to stay in a ⁴ Reinhardt (2019 pts. 131–134) favours a similar strategy. ⁵ To say that the sovereign if the supreme proprietor of the land is to say that, conceptually speaking, the state’s territorial jurisdiction precedes private land ownership.

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public inn, […] to be accommodated by a ferry across a river with no bridge, and, most fundamentally, […] to use public roads and buy and sell in a public market’ (Ripstein 2021a p. 248). Ripstein proceeds to justify cosmopolitan mobility rights on analogous grounds, that is to say, as rights we all have as members of the global public. The freedom of movement every individual enjoys under cosmopolitan right is akin to the freedom of movement members of a domestic legal order enjoy. As a corollary, states and their representatives—border officials, innkeepers or ferry operators, who are thus always representatives also of a global legal order—have obligations under cosmopolitan right to provide access to all travellers, including those who are not their citizens, lest they be locked into their own territory (see Ganesh 2018).⁶ This move allows Ripstein to effectively derive a compensatory right to travel the world from the disjunctive community of possession. As Peter Niesen (2021 p. 73) paraphrases the argument, ‘given that people have divided up the globe into states and private territories, they have to provide for each other’s border-crossing use of roads, etc., in a remedial fashion’. The legitimacy of the (global) legal order hangs on the provision of certain public goods including the necessary infrastructure. The problem, which I address in more detail in the subsequent section, is that Kant is very hesitant to even sketch anything like a global legal order, including the requisite kinds of publicly coercive institutions. The sense in which we are members of the global public is certainly not equivalent to our membership of a particular juridical order. On Ripstein’s account, the possibility of getting from one location to another within a territory is a formal requirement of sharing a united will with other members of the political society. No such political society or a concomitant sense of global citizenship, however, exists at the global level. As I have argued in earlier chapters, to participate in the ‘commercium’ of original common possession is not to participate in an actual political community, but in a (spatial) community of possible physical interaction. This distinguishes Kant’s grounded cosmopolitanism from a political cosmopolitanism as traditionally conceived. Hence, I do not believe it is plausible to conceive of the cosmopolitan right to roam the earth itself as taking place within or against the background of a global framework of public right, such that the latter might serve to justify the former. The intended analogy between

⁶ Ripstein’s endorsement of legitimate interference with private property in the context of rejecting Grotius’s idea of harmless use suggests that he ultimately intends his argument to justify access to both privately and publicly owned infrastructure.

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intra-state and global freedom of movement does not hold.⁷ Even if Ripstein is correct to assume that the provision of public roads on which citizens can move around freely is a juridical requirement immanent to an existing legal order, it remains unclear why representatives of that order would have to provide outsiders with access to the relevant territory on those very grounds. A very similar problem arises for Kleingeld’s (1998 p. 80 ff., 2011 p. 85 ff.) attempt to draw an analogy between the cosmopolitan right to traverse any privately owned land and (thus) publicly controlled territory, and Kant’s justification of taxes. According to ‘General Remark C’ of the Doctrine of Right (DoR 6:236), ‘the state is founded on the general will of the people (as a rational idea, not an empirical reality), and that the people unite themselves into a commonwealth under the rule of law in order to ensure that those members of society who are not able to maintain themselves will be maintained with the help of the state’ (Kleingeld 1998 pp. 80–81). This idea is supposed to ground the state’s right to tax the wealthy in order to sustain its needy citizens. In the same way, Kleingeld argues, ‘those who own territory on which foreigners arrive due to forces beyond their control can […] be required under cosmopolitan law to let foreigners use part of their property if this is necessary for the survival’ (Kleingeld 1998 p. 81). The thought is that, in both cases, property owners are legally obliged to give up some rights to their property in order to provide for the sustenance of those whose existence would otherwise be endangered. Notice, first, that this argument leads no further than the humanitarian dimension of cosmopolitan right (which is absent from the Doctrine of Right anyway); it can at most justify involuntary presence in dire need, rather than extensive mobility rights. Leaving this problematic limitation aside, we face the problem, again, that there just is no global public institution on Kant’s account upholding the rule of law and instantiating a general will in which we all, insider or outsider, participate.⁸ Like Ripstein’s, the argument rests on a dubious analogy ‘between a state and a “universal state of humans”’ (Kleingeld 2011 p. 85). Against this background, it is no surprise that some proponents of the standard view express uneasiness about the mobility aspect of cosmopolitan right. Kleingeld (1998 p. 78) laments that Kant’s argument ‘is terse and its structure […] not immediately clear’. Byrd and Hruschka (2010 p. 207) complain that

⁷ The analogy between domestic and global freedom of movement remains popular among in contemporary normative disputes about migration (e.g., Cassee 2016). ⁸ Reinhardt (2019 pp. 128–134) provides a number of further objections to Kleingeld’s view.

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the idea of a retained ‘right for everyone to visit everyone [is] simply an assumption’ that cannot be derived from the original community of the earth. And Peter Niesen (2017b), who deserves credit for unpacking this predicament in most detail, takes it to be basically irresolvable. What he diagnoses as Kant’s inability to conceptualise global mobility rights points to a larger underlying conceptual inconsistency contained in the conception of original common possession itself. In prior chapters, I have rejected the standard reading and its claims (1) that original common possession constitutes a distributive criterion and (2) that cosmopolitan right is concerned with compensatory entitlements from privatisation of land and delimitation of territories. Rather than ‘react[ing] to a potential scarcity problem’ (Niesen 2021 p. 69), cosmopolitan right normatively structures the interactions of individuals in their capacity as earth dwellers (i.e., a distinct juridical standing that I showed not to be propertymediated) with other states and non-state peoples. In Chapter 3, we saw that this puts us in a better position to make sense of Kant’s anticolonialism. But how does global mobility fit into Kant’s grounded cosmopolitanism? The answer to this question is not obvious from the perspective of my own interpretive framework, either. Having focused on the normative constraints that apply to travellers in their interaction with distant strangers (and vice versa), it remains to be seen on which basis they are entitled to roam the earth’s surface in order bring about such encounters, in the first place.

4.2 Kant’s system of public right My aim in the remainder to this chapter is to make sense of cosmopolitan mobility rights in terms of Kant’s grounded cosmopolitanism. In Section 4.4, I will argue that travellers are entitled to pass through foreign territory by virtue of their earth dwellership. As cosmopolitan agents ‘on the move’, they create the condition for lawful peace among the entire cosmopolitan plurality, including both states and non-state peoples. Global mobility is thus a fundamental precondition for transforming the disjunctive community of original common possession into a juridical community of legal subjects. In preparing the ground for this claim, I will now sharply change direction. The present section develops a particular interpretation of Kant’s threefold system of public right that conceptualises distinct though interlocking forms of right at state, international, and cosmopolitan levels. I will then proceed to develop this framework

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in more detail with regard to the right of nations (Section 4.3), before returning to cosmopolitan right (Section 4.4). Kant first develops the claim that (what he calls) a ‘cosmopolitan constitution’ (PP 8:358) should consist of public rights relations on three distinct (though interrelated) levels in the course of laying out the three ‘Definitive Articles’ of Perpetual Peace (PP 8:349–357). While his focus there is very much on the significance of the tripartite structure for establishing the conditions of peace, the Doctrine of Right develops its formal grounds more systematically. The basic thought is that […] under the general concept of public right we are led to think not only of the right of a state but also of a right of nations (ius gentium). Since the earth’s surface is not unlimited but closed, the concepts of the right of a state and of a right of nations lead inevitably to the idea of a right for a state of nations (ius gentium) or cosmopolitan right (ius cosmopoliticum). So, if the principle of outer freedom limited by law is lacking in any one of these three possible forms of rightful condition, the framework of all the others is unavoidably undermined and must finally collapse. (DoR 6:311)

Let me start by making two observations about this passage. First, Kant emphasises that the three forms of public right that constitute the pertinent system each derive from one and the same general concept of right. It lies in the very concept of right (conceived through its three forms) that it be global in nature. Second, Kant suggests that there is a sense in which international and cosmopolitan right are somehow predicated on the existence of states. ‘Since the earth’s surface is not unlimited but closed’, he argues, we cannot stop at the right of a state (or domestic right) but are ‘led’ to the two further levels. Kant’s ensuing discussion in both Perpetual Peace and the Doctrine of Right reflects this structure of exposition. He starts, respectively, with the domain of domestic right (or right of a state) as concerned with the institutional relations between individuals and their state. In Perpetual Peace, this domain is all about the nature of republican government (PP 8:349–353).⁹ The Doctrine of Right repeats the claim that a perfect republic, where the people act as a collective body rather than a loose collective, is the only kind of state that ⁹ In being defined by the three principles of political freedom and equality, separation of powers, and political representation of citizens, Kant’s republicanism describes more of a way or mode of governing than a specific institutional setup (Niesen & Eberl 2011 pp. 209–231). In the Contest of the Faculties (CF 7:91), Kant famously claims that even a monarch can govern in a republican way by treating their people accordingly.

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fully accords with its own internal standards. Yet, the focus as a whole shifts to the (prior) property argument as justifying a duty to enter the civil condition in the first place. From there, Kant goes on to claim that the concept of domestic right entails a requirement for right between states, which in turn ‘inevitably’ (DoR 6:311) gives rise to cosmopolitan right as specifying just relations between states as well as non-state peoples and outside individuals. As far as international right is concerned, Kant advocates a voluntary federation of states that are said to have ‘outgrown’ (PP 8:355) the need to be under coercive law. Finally, cosmopolitan right—well-known to us at this stage—is ‘limited’ to a right to visit. While the three levels are distinct and functionally differentiated, Kant puts great emphasis on the way in which they are also constitutively intertwined and mutually implicating forms of public right. Only in conjunction do the different domains constitute a complex, self-sustaining system. ‘If the principle of outer freedom limited by law is lacking in any one of these three possible forms of rightful condition’, Kant insists in the passage just quoted, ‘the framework of all the others is unavoidably undermined and must finally collapse’. None of the three levels, that is to say, fully instantiates the idea of rightful relations such that it could persist on its own. Ultimately, securement even of domestic right requires an institutional manifestation of international and cosmopolitan right. In placing his discussion of international and cosmopolitan right in the Doctrine of Right’s section on public right, Kant appears to locate them within the realm of a specifically institutional kind of normativity. Strangely, however, both are presented by Kant as distinctly noncoercive. In his discussion of international right, Kant first advocates a range of laws of war that are supposed to regulate conflicts among states. He then proceeds to vindicate a loose institutional framework in the form of a voluntary league of nations that can neither force states to join nor enforce its own pronouncements. About the institutional realisation of cosmopolitan right, Kant says virtually nothing (Kleingeld 2011 pp. 84–91). All we get are the enigmatic remarks, mentioned previously, that cosmopolitan right ‘has to do with [geht auf ] the possible union of all nations with a view to certain universal laws for their possible commerce’ (DoR 6:353) and that ‘in this way distant parts of the world can enter peaceably into relations with one another, which can eventually become publicly lawful and so finally bring the human race ever closer to a cosmopolitan constitution’ (PP 8:358). Given that Kant does not appear to envision any kind of omnilateral rights enforcing authority that, in making and enforcing laws in the name of all parties involved, could ‘unify’ the entire cosmopolitan plurality, it is unclear what even warrants the inclusion

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of international and (most importantly for our purposes) cosmopolitan right within the domain of public right. I would like to propose that Kant treats international and cosmopolitan right as part of public (rather than private) right because they each lay out conditions for realising a lawful condition that covers states in their relation to other states (international right), on the one hand, and to non-state peoples (cosmopolitan right), on the other. Put differently, the pertinent norms lay out conditions of juridification: only if the relevant agents constrain themselves to the requisite comportment of their own accord is a stable and lasting global legal order that includes the entire cosmopolitan plurality even conceivable. Kant’s discussion of international and cosmopolitan right lay out conditions for peace in the absence of coercive world government. These conditions, I hope to show, include global mobility. In allowing them to pass through their territory, states treat noncitizen individuals as cosmopolitan agents on the move, i.e., as earth dwellers with the capacity to solve the shared predicament of concurrent existence. Before I return to cosmopolitan right in order to vindicate this claim, I will spell out the implications of my interpretive framework with regard to the right of nations.

4.3 Realising public international right Interpretive debates around the right of nations (or international right) have traditionally focused quite narrowly on Kant’s rationale for endorsing a voluntary, lose and noncoercive international federation as the pertinent institution. Notice, however, that he only turns to the idea of a voluntary federation at the very end of the relevant discussion, in §§ 61 and 62. Much of the section of the Doctrine of Right (§§ 53–60) is instead concerned with states’ comportment in the absence of such an institution, which is no less puzzling. There, Kant extensively considers traditional questions of the law of war, including ius ad bellum (regulating resort to armed force), ius in bello (regulating conduct in war), and ius post bellum (regulating the behaviour of the victorious party after a war). Given that Kant explicitly characterises war as a ‘barbaric way’ of deciding disputes (DoR 6:351),¹⁰ this raises the question how there can be rules ¹⁰ At the very end of the Doctrine of Right, Kant puts it even more succinctly: morally practical reason pronounces an irresistible veto: there is to be no war, neither war between you and me in the state of nature nor war between us as states, which, although they are internally in a lawful condition, are still externally (in relation to one another) in a lawless condition; for war is not the way in which everyone should seek his rights. (DoR 6:354).

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for just conduct of war in the first place. More generally speaking, why does Kant give specific guidance at all on rightful comportment in a state of nature among states, if that condition is itself apparently unjust and ought to be left by joining a voluntary federation?

4.3.1 Self-constraint in international right Arthur Ripstein (2021b, 2021a) has developed a compelling answer to this question. What he calls ‘rules for wrongdoers’ encapsulate a general requirement to act in a way that is ‘consistent with the possibility of a future peace’ (Ripstein 2021a p. 2). In other words, it is the very idea of peace that regulates the conduct of war. Kant’s account of ius ad bellum, for instance, limits the rationale for legitimate warfare to cases of self-defence. Anticipating a future rule-guided approach to international conflict, the state taking to arms must formally declare war, while the opposing party ‘must be assumed’ to accept this declaration. More explicitly yet, war itself is conducted ‘in accordance with principles that always leave open the possibility of leaving the state of nature among states (in external relation to one another) and entering a rightful condition’ (DoR 6:347, see also Niesen & Eberl 2011 p. 156). For instance, Kant explicitly prohibits the use of any means in war that ‘would destroy the trust requisite to establishing a lasting peace in the future’ (Niesen & Eberl 2011 p. 156), such as the use of spies and snipers or the spread of misinformation. Finally, Kant’s discussion of ius post bellum puts a premium on the acceptance of both sides that past disputes have been conclusively settled, even if by force rather than right. Hence, the victorious party is authorised to simply dictate the conditions of peace after war; with the exception that they must not colonise the defeated state or make it ‘as it were, disappear from the earth, since that would be an injustice against its people, which cannot lose its original right to unite itself into a Commonwealth’ (DoR 6:349). In § 60, moreover, Kant introduces the idea of an ‘unjust enemy’, defined as a state ‘whose publicly expressed will (whether by word or deed) reveals a maxim by which, if it were made a universal rule, any condition of peace among nations would be impossible and, instead, a state of nature would be perpetuated’ (DoR 6:349). In essentially prefiguring the voluntary federation Kant proceeds to advocate, states are authorised to ’unite against such misconduct in order to deprive the state of its power’ to prohibit the transition to a condition of peace. To sum up, while war is a way of resolving disputes independently of their merits,

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according to Ripstein, it can be conducted such that a future peace remains possible. In other words, in the absence of a publicly rightful condition, constraining themselves to conduct war in line with these principles (a form of ‘juridical self-constraint’) is the only way for states to work towards ‘universal and lasting peace’ (DoR 6:355). This takes us to the second interpretive puzzle in the context of international right, Kant’s vindication of a loose and voluntary ‘congress of states’ (DoR 6:350). To many interpreters, this is in tension not only with his claim as to the intrinsically coercive nature of right in the Introduction to the Doctrine of Right (DoR 6:231). It also constitutes a notable departure from his earlier writings. In particular the early Idea for a Universal History had been emphatic on the need for a strong, coercive kind of federal global authority ‘resembling a civil commonwealth that can preserve itself like an automaton’ (IUH 8:25; cf. Kleingeld 2009 pp. 177–179).¹¹ At the heart of Kant’s argument there had been a sustained analogy between the respective states of nature on the individual and international level, matching the requirement for persons to submit to a public authority with a corresponding obligation of states to join a coercive federation. Indeed, both Perpetual Peace and the Doctrine of Right start with the very same analogy: ‘peoples, as states, can be judged as individual human beings who, when in the state of nature (i.e., when they are independent from external laws), already harm one another by being near one another’ (PP 8:354; see also DoR 6:344). Yet, Kant surprisingly backs away from his earlier endorsement of a coercive form of world government. The ‘federation’ (Bund) of states that he continues to argue for now depicts a much weaker kind of institution.¹² It is a merely voluntary association of states without coercive powers, one that ‘involves no sovereign authority (as in a civil constitution)’ and ‘can be renounced at any time and so must be renewed from time to time’ (DoR 6:344). This institution, whose sole purpose is to prevent war and conflict among its constituents, is neither established or maintained by force, nor are its decisions coercively enforced. Kant’s motivation for replacing his early model of an internationally coercive sovereign power with a relatively powerless federation remains highly

¹¹ Kant makes a very similar argument in the early Anthropology Lectures (AL 25:696, 25:843). ¹² Kleingeld (2004 pp. 322/323, fn.18) points out that the term federation itself is neutral as to whether or not the institution has the power to enforce its laws.

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contested among interpreters.¹³ Taking their cue from the claim in Perpetual Peace (8:357) that states ‘do not at all want’ to have their sovereignty curtailed in the way required for a coercive federation, a number of interpreters have read this as a concession to the realities of power politics (e.g., Habermas 1998; Ho¨ffe 2006 pp. 198–201). Proponents of this feasibility argument see Kant as simply acquiescing in states’ refusal to do what they ought to do, that is, submit to a supra-state coercive authority. This would be a pointedly un-Kantian move. Since when does it matter to Kant whether or not you want to act on your duty? Nevertheless, it has been a major driving force behind interpreters’ attempt at making Kant ‘consistent’ with his own ideas by vindicating a world state solution even amidst his own explicit refusal to do so (e.g., Hodgson 2012; Hruschka & Byrd 2008). Alternatively, Kant could be addressing a conceptual problem (call this the contradiction in conception argument). In Perpetual Peace, he had argued that in the idea of a state of states ‘lie[s] a contradiction’ (PP 8:354), for the very notion of international right is predicated on a plurality of states that their subjection to or even unification under a single coercive sovereign would do away with. Critics, however, have complained that—taken on its own—this is a mere semantic point without much purchase (e.g., Carson 1988; Guyer 2000 p. 416): the idea of international right may very well presuppose a plurality of states such that it would cease to be applicable under a global political body. Yet, this does not go to refute the desirability of the latter ideal as such. For we may question the very assumption that a right of nations (rather than a ‘right of a state of states’) is of inherent significance. Maybe Kant is actually rejecting a fusion of states on the straightforwardly normative basis that it would be either ineffective or dangerous (the normative argument)? There is indeed some textual evidence for this view. On the one hand, Kant seems concerned that a global state would just be too big in size so as to effectively govern and protect its citizens (DoR 6:350, Kleingeld 2004 p. 318). On the other hand, he famously worries that a hegemonic global empire in the form of a ‘universal monarchy’ would be likely to turn into a ‘soulless despotism’ (PP 8:367). Absorbing all subsidiary political units such that it is freed of any checks on its power, the peace such an institution creates would be that of a graveyard. Notice, however, that the purchase of Kant’s attack on ‘universal monarchy’ is limited to highly centralised forms of

¹³ Pertinent discussions include Ho¨ffe (2006); Kleingeld (2004); Lutz-Bachmann (1997 pp. 59–87). Most recently, see Corradetti (2020); Rostbøll (2020).

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global government that essentially amount to a world state. The normative argument cannot account, on similar grounds, for Kant’s scepticism concerning possible institutional arrangements that go beyond his voluntary federation, for instance in requiring partial sovereignty transfers, without dissolving all political communities into a single super-state (Kersting 1996 pp. 437–438).¹⁴ A more promising take on Kant’s position starts from the observation that, in Perpetual Peace, he continues to argue that the ‘continual approximation’ (PP 8:350) of the stronger, coercive kind of federation is possible and a duty prescribed by pure practical reason. Indeed, Kant does insist on the ‘positive idea of a world republic’ before seemingly putting up with its ‘negative surrogate of a lasting and continually expanding league’ (PP 8:357). Now, the idea is not (as on the feasibility argument) that the voluntary league of nations is ‘second best’ to a coercive federation of states in the sense of being all we can hope for amidst the realities of state interest and power politics. Rather, proponents of what I call the provisional argument (Corradetti 2020; Ellis 2005; Kleingeld 2004; Ypi 2014) suggest that it constitutes a necessary transitional or interim stage on the way to a coercive world government. The thought is that the loose federation gives states at least some means to resolve their differences, thus paving the way for a deeper union in a stronger type of federation, which remains the ultimate ideal. Kleingeld (2004 p. 315), for instance, suggests that ‘mediating institutions (even if voluntary) can prevent, postpone, or mitigate conflicts in a way that allows for internal improvement within states, and the gradual development toward a more peaceful world’. Once created, these institutional structures will, in the course of time, be consolidated such that states at some point willingly and autonomously enter a global institution that allows their relations to ‘eventually become publicly lawful and so finally bring the human race ever closer to a cosmopolitan constitution’ (PP 8:358). The noncoercive federation thus plays an important preparatory role for state’s voluntary submission to a coercive institution in the future. My worry is that while the provisional argument seems plausible as far as Perpetual Peace is concerned, in the Doctrine of Right Kant is much more reluctant to demand or affirm anything like the (eventual) curtailment of state power. The question no longer seems to be a merely pragmatic one of how to institutionalise or bring about a coercive federation anymore. Rather, Kant

¹⁴ In particular, we could conceive of arrangements in which states transfer only part of their sovereignty to the federal level. See, e.g., Scheuerman (2014) and Ulas¸ (2015) for recent alternatives to a global ‘Leviathan’.

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has come to see the idea of a world government as conflicting more fundamentally with the juridical authority of states. What accounts for this shift? The idea underlying what we may call the sovereignty argument is that by instantiating a public rightful condition among some individuals, states accrue a specific kind of moral status that renders them immune from being juridically compelled themselves (Flikschuh 2010a; Ripstein 2009 pp. 225–230).¹⁵ This is not to deny that states (like individuals) are in a disjunctive relation such that, by remaining in the international state of nature, they do ‘wrong in the highest degree’ (DoR 6:344). At the same time, though, as supreme rights enforcers domestically, states cannot be compelled to leave this condition or consequently to submit to the norms issued by a coercive institution. Their juridical standing prohibits supranational compulsion, such that we are left with a voluntary league. As Ripstein puts it, because states have ‘outgrown’ the need for coercion, ‘forcing them into a larger federation is nonrightful, and the larger federation is itself not a mandatory end’ (Ripstein 2021a p. 227). Proponents of the provisional argument are likely to object here. Surely it is one thing to say that states cannot be forced into a coercive federation, yet quite another thing to say that the federation itself can never be binding with respect to enforcement—the claim that states are immune from coercion, they may argue, requires disambiguation.¹⁶ Where is the problem if a coercive union is itself created through a voluntary act on the part of states—such as the US or EU, which were voluntarily created by their constituent units? Why, in other words, would states lose their moral status as artificial persons if they restricted their willing with respect to some matters (e.g., external sovereignty and federal competencies) while retaining the ability to legislate internally, to undertake contractual obligations, sue and be sued, and so one? In creating the US or the EU, states did not arguably dissolve themselves or their moral personality, but simply transfer part of their sovereignty to the federal level. I do not disagree with the substance of this critique. The problem is that Kant, implausibly perhaps, operates with a notion of sovereignty as essentially indivisible (e.g., Pinzani 1999 p. 253): to give it up in part is to lose it altogether. This is why the very fact of being subject to a coercive institution (irrespective

¹⁵ Kleingeld (Kleingeld 2004 p. 311) effectively combines a provisional argument with a sovereignty argument, claiming that the need for a transitional stage is motivated ‘by a concern that a state of states that is established by coercing unwilling states into it runs counter to the political autonomy of the citizens of the member states’. ¹⁶ I am grateful to Pauline Kleingeld and Annie Stilz, who have voiced this concern in conversation.

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of how it comes about) destroys states’ sovereign will as tied to their standing as supreme enforcer of rights relations. Against the provisional argument, hence, such an institution cannot even remain the ultimate ideal. Notice that we find traces of the sovereignty argument already in Perpetual Peace, where Kant argues that a coercive duty to leave the (international) lawless condition is not applicable to states ‘since, as states, they already have a rightful constitution internally and hence have outgrown the constraint of others to bring them under a more extended law-governed constitution in accordance with their concepts of right’ (PP 8:355).¹⁷ But only in the Doctrine of Right does he seem to be fully aware in what way this is the case. For only there is Kant’s view of juridical statehood fully developed. By this, I mean the notion that the state’s essential function is to guarantee and enforce rights relations that could not exist otherwise and more importantly that, in so doing, it accrues a specific kind of moral status or personality. That is to say, in instantiating a general united or public will that imposes coercive laws on everyone subject to it, the state acts as a distinctly public authority overriding the plurality of conflicting private wills. This status renders the state itself immune from juridical compulsion (Flikschuh 2010a p. 480). This allows us to see how far the analogy between lawless conditions among individuals and among states precisely goes: states, like individuals, have a will (while theirs is artificial) in virtue of which they have moral personality. Though unlike individuals, their will is what we may call ‘juridically sovereign’ (Flikschuh 2010a p. 480): the status of being the supreme enforcer of rights relations among some individuals is constitutive of their distinct kind of public will. Subjecting them to a superior coercive authority would effectively do away with their very personality and thus violate their moral status. This is not the case with individuals who, in contrast to states, are thus indeed liable to being compelled into the civil condition. Against this background, Kant’s denial, in the Doctrine of Right, of a coercive form of international right does not stem from a pragmatic but rather a conceptual difficulty. This kind of difficulty cannot be solved by simply hoping that, over time, states will come to a point where they want to do away with their own (sovereign) juridical standing.

¹⁷ As Kant puts it in the preparatory works to Perpetual Peace, states are allowed to resist the attempt by others to force them to join a state of states ‘because within them public law has already been established, whereas in the case of individuals in the state of nature nothing of the kind takes place’ (DPP 23:168).

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4.3.2 Publicity without coercion The surprising implication of my previous argument is that, beyond the state, public right has to remain noncoercive.¹⁸ Crucially, given that each state already constitutes a public rightful condition internally, ‘their voluntary participation in international legal institutions is sufficient to create a unique international standpoint, one that is public as between the participants’ (Ripstein 2021a p. 228). Simply by issuing determinate answers with regard to international conflicts, a voluntary federation constitutes a public condition of right among nations, even if states can neither be compelled into membership nor to accept its judegments. That said, we are certainly dealing with a peculiar kind of public right. The voluntary federation solves part of the predicament states confront in the international state of lawlessness, namely that they are each bound to act on their unilateral interpretation of the natural laws of war. In laying down ‘what is good and right’ from a public standpoint, the voluntary federation absolves states of the need to judge as they see fit. The problem is that without the power to also enforce its own judgements, an institution’s authority to advocate conflicts is strictly limited. The publicity that the voluntary federation creates remains a distinct kind of noncoercive publicity. Of course, states’ failure to submit to the voluntary federation and comply with its commands would be a failure to treat themselves as moral agents.¹⁹ By virtue of their claim to moral personality, states do not only have the requisite standing that protects them from being compelled into a coercive federation. They are also morally accountable and thus bearers of obligations.²⁰ Yet, nobody but themselves has the authority to force them to do so. States can simply disregard the federation’s pronouncements or withdraw when push comes to shove without any repercussions in terms of threat or punishment. Strong states may even use the league as an instrument to dominate and impose their will on weaker ones. Hence, while a noncoercive institution establishes a procedure ‘for deciding their disputes in a civil way, as if by a lawsuit, rather than in a barbaric way (the way of savages), namely by war’. (DoR 6:351), it ultimately leaves states in a situation where they are each bound to constrain themselves to comply with its commands. This is why I disagree with Ripstein ¹⁸ This is surprising not least because, as I have mentioned previously, in the Introduction to the Doctrine of Right, Kant himself had insisted on the analytic connection between right and the authority to coerce. ¹⁹ Analogously, in the ethical domain, anyone who lays claim to the capacity for autonomy thereby acknowledges their own status as obligation bearers (cf. Flikschuh 2010a). ²⁰ Possession of a will marks personhood and thus moral imputability for Kant (DoR 6:223). As bearers of an artificial will, states are thus morally accountable.

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that a voluntary federation provides institutional ‘closure’ (Ripstein 2021a p. 231) concerning international relations. Institutional closure, as I understand it, requires that it is not left to your discretion whether you comply with the law, or (reversely) that you do not depend on everyone’s continued willingness to abide by common rules. On some level, the juridical status of a noncoercive institution is not categorically different from that of a conventional agreement among agents who happen to converge (for the time being) on terms in a given domain of interaction. In other words, the creation of a voluntary federation does not change the juridical landscape as radically as the formation of the state does. We remain in a scenario of juridical self-constraint, where it is up to states themselves to comport themselves as required. To sum up, within the section on the right of nations, Kant specifies two (sequential) ways in which states comply with the command of reason that ‘there is to be no war’ (DoR 6:354): by following the laws of nature and, subsequently, by joining a voluntary federation of states and complying with its decisions. In the absence, indeed inconceivability of coercively public right, juridical self-constraint is the only way for states to work towards peace. And even if they do their part, states are left to hope that others will follow their example such that their juridical self-constraint is not in vain but serves the ‘continual approximation to the highest political good, perpetual peace’ (DoR 6:355).

4.4 Realising public cosmopolitan right I just argued that Kant’s discussion of the right of nations spells out conditions for lawful peace under circumstances of juridical self-constraint. Given that a coercive form of global government is conceptually inconceivable, submitting to and complying with the verdicts of a voluntary federation is the only way states can work towards establishing peace. Juridical self-constraint allows for a publicly (thought noncoercively) mediated interaction among states. In complying with the norms of international right of their own accord, they act in a way that is consistent with future (lawful) peace. I shall now develop a similar line of argument with regard to cosmopolitan right. Recall the structural analogy detected earlier. Both international and cosmopolitan right are deliberately placed by Kant in the section on public (rather than private) right as characterised by a specifically institutional kind of normativity, yet presented as depicting noncoercive kinds of rights relations. Cosmopolitan right is even more enigmatic in this respect. All that Kant

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indicates is that relations among states and non-state peoples are eventually to be brought under law. In Perpetual Peace, he argues that through interaction in accordance with cosmopolitan right, ‘distant parts of the world can enter peaceably into relations with one another, which can eventually become publicly lawful and so finally bring the human race ever closer to a cosmopolitan constitution’ (PP 8:358). Similarly, in the Doctrine of Right we are told that the relevant norms have ‘to do with the possible union of all peoples [Vo¨lker] with a view to certain universal laws for their possible commerce’ (DoR 6:352). Systematically speaking, this should not be surprising. What I have called the global standpoint, even if reflexively constrained, remains first-personal. And from such a standpoint, we cannot come up with principles on the basis of which a plurality of agents can coordinate their interaction. Only a shift from the global to the distinctly public standpoint of the law allows us to ultimately overcome the condition where are plurality of different standpoints are in conflict.²¹ In making rights pronouncements valid for all, a law-giving institution transforms the disjunctive community of original common possession into a juridical community of legal subjects. The establishment of a legal-institutional condition overcomes the problematic unilaterality and inherent instability of diverging interpretations that characterises rights relations in their absence. Hence, I agree with Peter Niesen that cosmopolitan right as laid out by Kant is ‘liable to institutional consolidation and transformation’ (Niesen 2021 p. 67). In other words, what we might call provisional cosmopolitan right is to be ‘completed via a process of institutionalisation and law-making’, i.e., made peremptory in a public legal order. Niesen also provides a timely reminder that ‘cosmopolitan law-making would have to chime with Kant’s overall strategy of contractual, noncoercive international law-making, and cosmopolitan institutions would have to reflect international law’s binding, yet non-violent character’ (Niesen 2021 p. 67). I disagree, however, about the very point of bringing cosmopolitan rights relations under law. As a proponent of what I have called the standard reading, Niesen assumes that the subjects of cosmopolitan right can claim certain natural law-like entitlements including, most importantly, individual entitlements over land and collective entitlements over territory. These entitlements are made conclusive as we move from provisional to peremptory cosmopolitan right. In this process, some of them may persist and simply have to be ²¹ Another way of putting the point is that principles with the required interpersonal kind of authority to coordinate the interactions of a plurality of agents cannot be self-legislated but have to be externally legislated. This is often mentioned as one of the core difference between right and ethics, e.g., by Flikschuh (2000); Horn (2014); Ripstein (2009); Willaschek (1997); Wood (2002a).

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confirmed or determined, while others undergo a radical re-evaluation; for instance, because they were established by means of unjust annexation (grounding claims to compensation or rectification for historical injustice), or because they cannot be reconciled with everyone’s right to be somewhere (grounding humanitarian claims) (see also Niesen 2017a). I laid out in Chapter 2 how this view links the ‘remedial’ entitlements of cosmopolitan right to a specific view of original common possession as the starting point and normative foundation of a hypothetical privatisation process. Earlier in this chapter, I argued that this view struggles in particular to account for cosmopolitan mobility rights. My own account construes both the normativity of (provisional) cosmopolitan right and the transition to its peremptory, publicly lawful version differently. Public cosmopolitan right is primarily conceived as transforming the formal relation between a plurality of diverse parties rather than the material claims (over parts of the earth) they each bring into this relation. Consequently, the cosmopolitan right to visit is not a self-standing material claim subject to vindication and determination through juridification. Instead, it is inherently transitional in nature, specifying the conditions for transforming the disjunctive community of original common possession into a juridical community of legal subjects that includes both non-state peoples and states.²² This is the suggested analogy with the right of nations: in the absence of public institutions (and the authority of coercively bring them about), we ought to act in a way that leaves open their establishment in the future. What this entails can be derived from unpacking the idea of a right to visit. In Chapter 3, I highlighted the importance of juridical self-constraint in the face of unfamiliar forms of political association. The right to visit is not a right to settle or ‘civilise’ but allows for encounters among distant strangers who initially lack a basis to coordinate their interaction. We are now in a position to see that its permissive aspect is equally important. By roaming the earth’s surface in order to contact distant strangers, travellers initiate a process in the course of which states and non-state peoples may hope to learn to understand each other and ultimately bring their relations under law. I would like to unpack this idea by explicating two more specific ways in which mobility is a precondition for lawful peace: by creating a cosmopolitan public sphere (i.e., making injustices committed abroad a shared concern), and by creating interdependence and shared interests (i.e., through trade and commercial exchange). The respective lines of argument take their cue from two different ways in which ²² I read Corradetti (2017) as occupying a middle ground between my own and Niesen’s view. While he defends the standard reading of original common possession, he emphasises the ‘transitional’ nature of cosmopolitan right.

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we can understand Kant’s claim that the relation among members of the original community of possession depicts a ‘thoroughgoing relation of each to all the others of offering to engage in commerce with any other’ (DoR 6:352).

4.4.1 A cosmopolitan public sphere One way in which global mobility is a precondition for lawful peace comes to the fore when we conceive of ‘commerce’ in the broadest sense possible as communicative engagement.²³ Taking their cue from the remark that global mobility ‘provides the occasion that troubles and acts of violence in one place on our globe to be felt all over it’ (DoR 6:353, see also PP 8:360), a number of theorists have taken Kant to suggest that cosmopolitan interaction can contribute to the emergence of something like a ‘global public sphere’ in which violations of hospitality—for instance, in the context of colonial activity—can be communicated as well as publicised and their perpetrators held to account (e.g., Bohman 1997; Cavallar 2015 pp. 49–76; Corradetti 2017 p. 429; Niesen & Eberl 2011 pp. 257–258). Proponents of this view tend to foreground what we might call a descriptive sense of publicity conceived as a global infrastructure of news transmission, i.e., the straightforward fact that misdeeds and atrocities abroad (e.g., those committed by colonisers) reach those ‘back home’. As Diane Morgan (2009 p. 115) puts it, it was only through ‘ever developing lines of communication’ that ‘injustices in one part of the globe (such as slavery in the West Indies) sent out shock waves’ that could be felt on the other side of the globe. This is certainly part of Kant’s point. Yet in highlighting the moral outrage created ‘at home’ by the knowledge about inhospitable behaviour abroad, he seems to have more in mind. To see this, we need to conceive of publicity in the more substantively normative terms Kant develops in the essay ‘What is Enlightenment?’²⁴ There, he distinguishes ‘private’ and ‘public’ reasoning somewhat unconventionally (from a contemporary perspective at least) according to the respective audiences addressed. The former is fit for a limited audience, for instance while in a specific role such as that of an employee: as a civil servant, military officer or churchman, we are bound by the dictates of a given authority. Rather than making up our own minds, we rely exclusively on books for intellectual reflection, on spiritual advisors for our consciousness, on ²³ In his early work, Peter Niesen (2005) has been particularly emphatic on the communicative dimension of cosmopolitan right. ²⁴ Onora O’Neill (1989 pp. 28–50) has made much of this distinction.

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doctors for our diet (En 8:35). In the essay, Kant famously associates this with the situation diagnosed as ‘self-incurred immaturity’, where we do not think for ourselves, but defer to the judgement of others. What we must do to free ourselves from this predicament is to ‘make public use of [our] reason in all matters’ (En 8:36), that is, to subject our disputes to the ‘free and critical debate among all those involved’ (O’Neill 1989 p. 38). The public use of reason is not bound to any given ends and is accountable to all: one speaks as a ‘citizen of the world’ (En 8:37). The only authority we respond to is the authority of reason, as that which we share with all other human beings. If we follow this line of thought, global mobility first creates the conditions for truly public reasoning, which must be directed at all earth dwellers. As the relevant audience is no longer artificially restricted, distant strangers appear on our radar not just in the straightforward sense, mentioned previously, that we know about them and their experiences of injustice. Instead, their standpoint counts in a normatively more momentous sense. In giving a voice to the formerly oppressed and dispossessed, and opening up to formerly unfamiliar forms of collective life and political association, an emerging global public sphere changes what it means to reason publicly in the first place.²⁵ It binds us to take into account the claims of all those with whom we find ourselves in a disjunctive community of common possession and treat them as equal justificatory authorities. Bohman helpfully highlights that the notion of public reasoning, thus understood, does not have the idea of convergence built into it as its goal, i.e., of ‘all the peoples of the world finally coming to have enough similar beliefs and goals to enter into a common republic; rather, it should be a matter of achieving the conditions under which a plurality of persons can inhabit a common public space’ (Bohman 1997 p. 185). The aim of a cosmopolitan public sphere is not universal agreement but universal accountability among equals. This chimes with my own attempt to construe earth dwellers as participating in a disjunctive (hence diverse and antagonistic) community of possible physical interaction, tasked to come to terms with the shared predicament of concurrent existence. By enabling us to debate, discuss and deliberate from a global standpoint, a cosmopolitan public sphere creates ‘a space in which citizens can come to understand one other, work out their differences, and create new institutions’ (Bohman 1997 p. 197).

²⁵ In contemporary parlance, we might speak of an ‘expanding circle’ (Singer 2011) of juridical concern or inclusion.

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4.4.2 From free trade to fair trade A second way in which global mobility is a precondition for juridification requires that we conceive of ‘commerce’ more narrowly, as economic interaction. We should of course not go so far as to reduce cosmopolitan right to its role in regulating trade relations, as some authors have done (e.g., Thompson 2008).²⁶ This is an implausibly narrow reading not least because Kant’s terms of Wechselwirkung and Verkehr refer to interaction in a very broad sense including not only economic but also cultural, political or simply communicative exchange. That said, trade relations certainly constitute one important part of that which is regulated by cosmopolitan right. The idea that trade is conducive to peace is one we find throughout Kant’s writings on politics and history. In early essays such as the Idea for a Universal History, he argues that commercial relations constitute a specific sort of social relation that naturally grows with the development of our natural predisposition’ to ‘unsocial sociability’ (ungesellige Geselligkeit). In so doing, it cultivates moral predispositions that will progressively bring about the enlightenment of political institutions and help overcome excessive patriotism, religious fanaticism or violent pursuits of military glory (IUH 8:27–28, see also Cavallar 2015 p. 66). Combining this narrative with a hierarchical account of human races and a stadial fourstage theory of human history, which culminates in the supposedly superior age of commercial society as laid out in the Conjectural Beginnings, the early Kant joins contemporaries such as Vitoria and Pufendorf in celebrating the civilising effects of global commerce. Notably, Perpetual Peace and the Doctrine of Right reflect a turn away from this almost unbounded optimism concerning the contribution of the ‘spirit of commerce’ to peace and human development. In the course of the 1790s, Kant seems to have become much more ambivalent about the merits of free trade and hesitant to unconditionally welcome it (e.g., Muthu 2009 pp. 186– 200). Arguably, he started to recognise the negative effects of the unregulated commercial expansion of Western states that earlier essays had been silent on: trade relations between foreign merchants and indigenous peoples in particular might very well be harmful and exploitative rather than fair and mutually advantageous (Vanhaute 2014 p. 134).

²⁶ In a similar vein, Ho¨ffe (2006) describes cosmopolitan right as depicting the paradigm of a liberal world order with extensive entitlements of economic exchange, while Byrd and Hruschka go as far as to recognise in it nothing but ‘the idea of a perfect World Trade Organization’ (Byrd & Hruschka 2010 p. 207).

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That is not to say that Kant does not continue to believe that commerce can play an important and productive role in establishing peace among all participants in the disjunctive global community. He simply no longer takes this to be the case automatically or unconditionally. Attempts to seek commerce with strangers can be productive under the condition that they take a specific form. In order to yield this effect, trade requires regulation that prevents malpractice. Kant thus becomes interested in ‘fair trade’ rather than ‘free trade’ (Kleingeld 2011 p. 137),²⁷ i.e., the limits and norms of engaging in cross-community interaction with distant others. His assumption is that rule-governed trade that proceeds in compliance with cosmopolitan right facilitates peace among the parties involved. Successful instances of voluntary and mutually beneficial commerce increase the interdependence among participants and unites them in common interest. Of course, in the absence of publicly coercive institutions, there is no guarantee that trade relations will actually be productive: some transactions will be of mutual advantage, while others are likely to be unfair, abusive, and exploitative. Hence, harvesting the productive effects of global trade requires juridical self-constraint: it is up to the trading partners themselves to proceed on equitable, that is reciprocal and mutually beneficial terms. In this context, recall Kant’s remark that Western travellers ought to interact with non-state peoples on a contractual basis (DoR 6:353). In order to make a settlement on indigenous land, ‘a specific contract is required’. This contract, Kant adds, must not ‘take advantage of the ignorance of those inhabitants with respect to ceding their lands’. Even amidst non-state peoples’ lack of acquaintance with the nature of contractual conventions, he seems to suggest, Europeans themselves can very well tell the difference between honest attempts to propose fair terms of interaction, and fraudulent offers. If, however, one party consistently refuses to constrain its own comportment and behaves inhospitably, Kant is not willing to naively hold up the flag of free trade. In Perpetual Peace, for instance, he remarks that China and Japan have ‘wisely’ restricted commerce with Europeans, ‘the former allowing them access but not entry, the latter even allowing access to only a single European people, the Dutch, but excluding them, like prisoners, from community with the natives’ (PP 8:359). Interpreters have struggled to make sense of Kant’s attempt to single out these particular instances of trade as problematic, and to make it fit with his affirmative attitude towards trade and interaction with foreigners more generally (e.g., Niesen 2007 pp. 98–100; Reinhardt 2019 ²⁷ Samuel Fleischacker (1996), by contrast, reads Kant basically as a free trade apologist.

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pp. 120–124). Plausibly, Kant intends to vindicate the pragmatic conclusion these countries seem to have drawn from past interactions with European nations (Waligore 2009 p. 39; Williams 2007 p. 66). Afterall, the remarks on Japan and China follow immediately on to a complaint about the ‘inhospitable behaviour of civilized, especially commercial, states in our part of the world’ of whom he says that ‘the injustice they show in visiting foreign lands and peoples (which with them is tantamount to conquering them) goes to horrifying length’ (PP 8:357). In the face of unfriendly behaviour on the visitor’s side, a host nation may only be left with the option to (at least temporarily) restrict interaction unilaterally and close its borders. As Arthur Ripstein (2021a p. 256) puts it, ‘the entitlement to refuse to trade with those who have shown themselves to be dangerous and warlike is not the same as a general prerogative within cosmopolitan right to refuse to trade whenever there is some advantage to be expected from doing so’. In other words, there is a difference between an appropriate response to exploitation and colonialism, and general openness to commercial offers. This should be a reminder that only fair, i.e., juridically self-constrained trade facilitates peace—in the case at hand more than ever, the authorising and the constraining elements contained in the right to visit must go alongside each other.

4.4.3 Mobility without teleology The examples of a global public sphere and global trade relations are meant to illustrate a broader point: in creating opportunities for interaction, interdependence and mutual understanding, mobility is a fundamental precondition for bringing the relations of states and non-state peoples under law. Now, one might object that it is implausible, from a Kantian perspective at least, to derive an individual entitlement (i.e., the entitlement to roam the earth’s surface) from the fact that it contributes to peace.²⁸ This is what proponents of a teleological account of cosmopolitan right actually do propose. Christoph Horn (2014 p. 294; see also Reinhardt 2019 pp. 178–180), for instance, argues that Kant’s right of hospitality is apparently justified on the basis of considerations from teleological history, given that it is conceived as a means through which ‘distant parts of the world can enter peaceably into relations with one another, ²⁸ I am grateful to Arthur Ripstein for raising this objection.

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which can eventually become publicly lawful and so finally bring the human race ever closer to a cosmopolitan constitution (my translation).²⁹

I will comment in the subsequent chapter on the notable absence of teleology in the Doctrine of Right. What matters for present purposes is that from considerations of this kind it would indeed be impermissible to derive the desired normative conclusions. In other words, I agree with the mentioned objection that justifying an individual entitlement on the basis of its potential contribution to bringing about a particular state of affairs would be a distinctly un-Kantian type of consequentialism. My intention in his chapter, however, is not to align myself with this view. I want to insist that the justificatory basis of the cosmopolitan right to visit (including, hence, its mobility component) remains purely deontological. The teleological reading construes the agents of cosmopolitan right as means to an unavoidable development, driven by nature or history. My account, by contrast, conceives of mobility precisely as a form of cosmopolitan agency exercised by earth dwellers and to be respected by states. In roaming the earth’s surface with the aim of establishing cultural, intellectual, economic or political exchange, individuals learn to critically relate to one another as well as the contingent institutions, boundaries and loyalties that separate them. In other words, face-to-face encounters can bring distant strangers ‘into understanding, community, and peaceable relations with one another, even with the most distant’ (PP 8:368). Consequently, the ability to actualise what are originally relations of possible physical interaction is a necessary condition for solving the task of transforming the community of original common possession into a rightful community of juridical subjects. As a corollary, in letting strangers pass through their territory, both individual landowners and states (who potentially stand in the way of global mobility by claiming parts of the earth’s surface as subject to their exclusive control) treat them as earth dwellers with the ability to normatively structure the common space they share as equal justificatory authorities. In the absence of public cosmopolitan right, respecting outsiders as cosmopolitan agents ‘on the move’ with a right to roam the earth’s surface is simply part of what it means to treat them as earth dwellers. That is why the original right to be somewhere is to be conceived as, and always has to remain, a right to be anywhere. ²⁹ Horn thus reads Kant’s discussion of cosmopolitan right in the context of the subsequent ‘First Supplement’ of Perpetual Peace, according to which the gradual approximation of cosmopolitan right is guaranteed by ‘the great artist nature’ (PP 8: 360).

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4.5 Conclusion In complementing my account of Kant’s anticolonialism (as a particular kind of restraint on the newcomer) in the preceding chapter, the aim of the present chapter was to make sense of the permissive dimension of the cosmopolitan right to visit as encapsulated in its mobility aspect. Structurally, both chapters connected a specific exegetical puzzle in the context of cosmopolitan right with larger conceptual issues pertaining to the Doctrine of Right as a whole. In Chapter 3, the question of how to comport ourselves (as travellers away from home) vis-à-vis non-state peoples led us to the property argument and its relation to the juridical domain I associate with Kant’s grounded cosmopolitanism. In the present chapter, I connected the question of cosmopolitan mobility to the (institutional) question why both domains of public right beyond the state are characterised by Kant as noncoercive. My claim was that individuals have a right as earth dwellers to roam the globe’s surface, including those parts privatised by individual property owners and claimed as territories by states. Cosmopolitan exchange and interaction are a precondition for the realisation of lawful peace among states and non-state peoples in the future. Hence, we can conceive of global mobility rights as a corollary of earth dwellers’ entitlement to normatively structure the common space they share as equal justificatory authorities. Very much like its constraining aspect, hence, the authorising aspect of the cosmopolitan right to visit can be made sense of against the background of Kant’s grounded cosmopolitanism. What integrates the two dimensions is the idea of a future cosmopolitan constitution: in conjunction, they spell out conditions for transforming the disjunctive community of original common possession into a legal community of juridical subjects. Hence, Kant’s grounded cosmopolitan is not primarily concerned with laying out the precise contours of a particular global order, but with the conditions of the possibility of realising such a global order under conditions where a plurality of agents and a diversity of political associations find themselves in a relation of unavoidable interaction. To act in line with the norms of cosmopolitan right is to act in a way ‘consistent with the possibility of a future peace’ (Ripstein 2021a p. 2).

5 Progress, Hope, and the Cosmopolitan State In Chapters 3 and 4, I focused on Kant’s discussion of cosmopolitan right in order to determine the conceptual role of his grounded cosmopolitan within the Doctrine of Right. In binding individuals in their interaction with non-state peoples as well as foreign states (and vice versa), the right to visit specifies the conditions for transforming the disjunctive community of earth dwellers into a juridical community of legal subject united by public (though noncoercive) law. Coming to terms with the predicament of concurrent existence is a daunting and gradual task for a community without pre-established harmony, a community of individuals who find themselves in a relation of possible physical interaction without shared principles or institutions. Juridical selfconstraint vis-à-vis distant strangers abroad and at home is the only way to incrementally expanding lawful relations among the entire cosmopolitan plurality. In developing this argument, I have implicitly complemented the spatial perspective central to Kant’s grounded cosmopolitanism as developed in Chapters 1 and 2, with a temporal perspective.¹ Juridifying relations on all three levels of public right is also a historical project.² Elaborating further on this idea, the present chapter reflects more systematically on Kant’s notion of cosmopolitan progress, i.e., how he conceptualises progress towards the ‘highest political good’ (DoR 6:355), perpetual peace. My aim is to highlight the role of the state in particular, which is conceived by Kant as an important agent of historical progress. I start by returning to Kant’s concept of ‘commercium’ (Section 5.1). The contrast with the related notion of ‘communio’ indicates that an important aspect of the notion of disjunctive community is to change our perspective ¹ Recall, however, that spatial and temporal aspects were mutually constitutive in the idea of disjunctive community from the outset: from a temporal perspective, the idea of disjunctive community grasps the essential simultaneity of our coexistence with one another on the earth’s limited surface. Our own corporeal nature and the earth’s surface are only normatively relevant (in the distinct way they are) by virtue of our concurrent existence. ² See Brandt (1982 p. 270) on historical time as the ‘schema’ for realising rights relations.

Kant’s Grounded Cosmopolitanism. Jakob Huber, Oxford University Press. © Jakob Huber (2022). DOI: 10.1093/oso/9780192844040.003.0006

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on states. In Section 5.2, I distinguish between two dimensions of political progress in Kant, which concern the perfection and the creation of political institutions respectively. These domains intersect in the idea of a cosmopolitan state, i.e., a state that binds itself and its citizens to rightful comportment towards other states and non-state peoples. Kant’s grounded cosmopolitanism highlights the transformative role of radically reformed states in bringing about a global institutional order. In Section 5.3, I turn form the nature of cosmopolitan progress and its historical realisation to the epistemic attitude we, as individuals and collectives, ought to adopt in relation to it. Highlighting Kant’s shift from a process-centred (teleological) conception of progress in Perpetual Peace to an agency-centred conception in the Doctrine of Right, I argue that hope for attaining the ‘entire final end of the doctrine of right’ (DoR 6:355) is a necessary prerequisite for our own (motivational) ability to contribute to its realisation. In allowing us to anticipate the willingness of other states and non-state peoples to reciprocate our efforts at establishing peace, this hope serves to orientate and motivate our cosmopolitan activity from the global standpoint. Just as Kant’s ‘postulates’ provide a regulative basis for ethical comportment, so hope for a justly ordered world provides a regulative basis for political action, both from within the state and beyond, aimed at establishing a condition of peace among the entire cosmopolitan plurality.

5.1 Communio and commercium Let us start by returning to Chapter 2, where I developed the global standpoint through a contrast between Kant’s notion of original common possession and that predominant in the natural law tradition as impersonated by Grotius. One of my main observations was that Kant reverses the argumentative and hence the justificatory sequence familiar from the latter. Grotius starts with the idea of a common stock of resources and land (as a historically real state of affairs) that is subsequently divided up in accordance with the principle of need. The Doctrine of Right’s argument, by contrast, proceeds from the fact that we unavoidably occupy a place to the idea of original possession in common. To think of the earth as possessed in common, that is to say, is a corollary of the unavoidable fact that we come into the world as embodied agents. Kant employs the idea of original common possession of the earth in order to visually express what it means to concurrently exist as, together with other such agents, within limited space.

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I also hinted at Kant’s underlying motivation for this inversion: his worry is that Grotius’s argumentative sequence, in aiming to overcome the condition of original common ownership, tends to obliterate the global standpoint. Kant suspects that this model, in providing the ground for a particularisation narrative, essentially entrenches the separation between individuals and borders between communities rather than inviting and enabling them to find shared solutions for shared global problems. By contrast, there is a sense in which, in arising from the unavoidable conditions of our coexistence on earth, Kant’s global community is more basic than contingent, man-made communities of rights-holders or co-owners. This point was strengthened further by my discussion of Kant’s anti-colonialism in Chapter 3. Given that nonstate peoples do not share the property-based model of the state with Western emissaries, the latter are bound to interact with the former on the basis earth dwellership, i.e., to acknowledge that they share the predicament of concurrent existence. It is this line of argument that I shall pick up in order to reflect further on the relation between existing political communities and the global community of possible physical interaction. I shall do so by elaborating on the conceptual distinction between commercium and communio. In first introducing the argument from earth dwellership in the section on private right, Kant cautions that a ‘condition of community (communio) of what is mine and yours can never be thought to be original but must be acquired (by an act that establishes an external right), although possession of an external object can originally be only possession in common’ (DoR 6:258). Later on, in the context of cosmopolitan right, we are told that the members of the original community of land do not stand in a relation of ‘rightful community of possession (communio) and so of use of it, or of property in it; instead, they stand in a community of possible physical interaction (commercium), that is, in a thoroughgoing relation of each to all the others […]’ (DoR 6:352). In Chapter 2, I took Kant to be making this distinction in order to delineate his own conception of global community as commercium from the Grotian notion of a ‘primitive community [communio primaeva], which is supposed to be instituted in the earliest time of relations of rights among human beings and cannot be based on principles but only on history’ (DoR 6:258). The problems with this conception, recall, were multifaceted. Not only is there no historical evidence of any such agreement, or an explanation how it could bind future generations. More importantly, given that communio ‘arose from a contract by which everyone gave up private possessions’ (DoR 6:250), we would need to know how people would have come to privately own things originally

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in the first place, such that they can then decide to unite them into common ownership. What matters to me at this point is that communio depicts a kind of original community that is already instituted in some way among some individuals. This tallies with the term’s Latin origin as depicting a fortress or, more generally, a demarcated and bounded space. According to Howard Caygill, Kant was well aware of this exclusionary and determinate meaning of communio as ‘exclusive sharing of space protected from the outside’ (Caygill 1995 p. 177; see also Milstein 2013 p. 124) and used it across his political writings to characterise particular social and political communities or arrangements, delineated and demarcated from others of the same kind around them, that institutionalise relations of property, territory and sovereignty. Against this background, the distinction between commercium and communio provides another opportunity to reflect on the relation between the global community of original common possession and particular communities constituted by man-made institutions such as states; a question that has come up repeatedly and in different guises throughout this book. That Kant actually has this relation in mind in contrasting communio and commercium is confirmed by a brief look at a passage from the first Critique where the conceptual distinction is first introduced. In the third Analogy (CPR A 213–214/B260/261) Kant argues that we require the category of community in order to perceive a plurality of objects as co-existing simultaneously in one spatial whole. In this context, he also identifies an ambiguity in the word community as used in common language: The word ‘community’ is ambiguous in our language, and can mean either communio or commercium. We use it here in the latter sense, as a dynamical community, without which even the local community (communio spatii) could never be empirically cognized […] In our mind all appearances, as contained in a possible experience, must stand in a community (communio) of apperception, and insofar as the objects are to be represented as being connected by existing simultaneously, they must reciprocally determine their position in one time and thereby constitute a whole.

Kant distinguishes two meanings in order to resolve the ambiguity inherent in the term Gemeinschaft. ‘Communio’ is a ‘local community’ of objects, that is our perception of things as grouped together in some respect and thus delineated from other things. Milstein suggests that, in the present context, we can read it as referring to a deemed ‘condition of commonality or shared existence,

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a more or less static condition of belonging together under some identifiable set of criteria that can demarcate that which belongs to the community from that which does not’ (Milstein 2013 p. 122). The notion of ‘commercium’, which, in the previous passage, Kant associates with the pertinent category or pure concept of the understanding, is said to depict a community characterised by mere interaction and reciprocal influence. It was this very discussion that, in Chapter 2, allowed me to develop the juridical idea of a global standpoint from an epistemic idea of a standpoint on the whole. More pertinent for present purposes is how Kant’s argument subsequently proceeds: If this subjective community is to rest on an objective ground, or is to be related to appearances as substances, then the perception of one, as ground, must make possible the perception of the other, and conversely, so that the succession that always exists in the perceptions, as apprehensions, will not be ascribed to the objects, but these can instead be represented as existing simultaneously. But this is a reciprocal influence, i.e., a real community (commercium) of substances, without which the empirical relation of simultaneity could not obtain in experience. (CPR A 214-215/B/261-262)

Having distinguished the two concepts of community and commercium, Kant now specifies their relation. The thought is that we can only mentally aggregate, individuate, or locate things with respect to one another by virtue of our ability to experience all the constituent parts as interconnected with one another in a unified horizon of possible experience. As the manifold of experience does not reach us already ordered into discrete types or groups of objects, we need an ‘objective ground’ or starting point—the idea of a dynamical community of thoroughgoing interaction—from which we intuit the composition of the world and form judgements about it. Kant’s thought is that community as ‘communio’ presupposes community as ‘commercium’ (CPR A214/B261): without the dynamic reciprocal influence of substances in ‘commercium’, there could be no empirical relation of co-existence or ‘communio’. Let us take our lead from this passage as we zoom in on Kant’s return to the distinction between communio and commercium in the Doctrine of Right. Kant suggests that his global community is in some way logically prior to or takes precedence over man-made communities of right-holders or co-owners, such as states. Echoing my argument, in Chapter 3, that Kant proceeds regressively from the property argument to the idea of earth dwellership (we all have to be somewhere in order even make use of our capacity for choice and action, let alone claims objects as exclusively ours), Kant here conceptualises the idea

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of commercium as a condition of possibility for communio, i.e., as the ‘objective ground’ on which ‘this subjective community’ is to rest. This is at odds not only with the Grotian notion, but also with its ‘Kantianised’ cousin put forward by proponents of the standard reading. On their view, the relation should be exactly reversed: communio overcomes commercium. Recall the argument put forward by Byrd and Hruschka (2010 p. 207), who claim along these lines that when the land is particularized, however, the disjunctively universal right to a place on this earth is made concrete, especially for a people. When it is, the right to be in a place other than the one an individual rightly occupies disappears, and with it the right to visit that other place.

In other words, all we owe to individuals outside our instituted communities are needs-based compensatory entitlements in case they have nowhere to be. Given that this is apparently not the kind of priority relation Kant has in mind, what is? According to one possible interpretation, the global community of commercium is meant to overcome the community of communio. For instance, we may read Kant as implying that we are meant to dissolve particular human institutions into a single global community, possibly embracing an all-encompassing political institution or even world state. I have repeatedly pointed to Kant’s scepticism concerning these ideas. While he does indeed anticipate some kind of (non-coercive) institutional framework that brings all interactions under law, he is not at all inclined to suggest that we ought to dissolve or even redraw boundaries, redistribute land and territory, or—more broadly speaking—to do away with all kinds of particular relations, commitments, and institutions. In Chapter 4, I showed that this scepticism is driven by his argument, itself undergirded by a questionable account of indivisible sovereignty, of states as a distinct kind of juridical agents who must not be subject to, let alone be forced into, a single global coercive institution. Now, there is another way in which we could read commercium as overcoming community. This construal, suggested by Christoph Menke (2015 pp. 350–354), is not predicated on expanding the scope of political community. Rather, Kant is taken to juxtapose two models of political community, that is to say, different ways of conceptualising relations among co-citizens. On Menke’s interpretation, the distinction between commercium and communio expresses two fundamentally different paradigms for conceptualising the very idea of justice. Commercium encapsulates the form of modern rights that Menke ascribes to Kant and goes on to reject himself: the reciprocal relation between the

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two parties of any interaction that only together constitute a rights relation. On Menke’s view, this modern, individualistic notion of rights as concerned with the dynamic, reciprocal relation among persons asserting themselves as ‘mere’ juridical subjects by making claims upon each other to have their actions taken into account contrasts starkly with an alternative tradition of thinking about justice: that associated with communio understood as a more comprehensive social praxis that underlies, for instance, communitarian ideals of the common good or the communist idea of true democracy. On this second view, individual actions are related not externally, thus reducing agents to a formal status of juridical subjectivity, but internally through an overarching conception of the good in which they all participate (Menke 2015 p. 355). On Menke’s view, Kant plays an important role in the context of an (early modern) paradigm shift away from a ‘thick’ conception of political community as communio to a much ‘thinner’ one associated with commercium. At the conceptual heart of this transformation is the powerful notion of individual or subjective rights as validly assertable prior to the community itself. Now, while this is a familiar story about a central conceptual shift in early modern political thought from natural law to natural rights (Tierney 1997; Tuck 1990), I doubt that Kant actually plays the role Menke envisions for him. As we saw in Chapter 1, Kant does not start with a foundational claim about subjective rights but with the general concept of right as a system of reciprocal relations of which individual claims are a constitutive component. Right is conceived in relational terms from the outset. I do agree with Menke that, in so far as it depicts our co-existence on the earth’s spherical surface, Kant’s disjunctive community is not a community of shared ethnicity, culture or law—a community based on affinity or shared conceptions of the good. In fact, what characterises disjunctive community is precisely that it has no preestablished harmony built into it but that it is constituted precisely of antagonistic relations of plurality and difference. That is not to say, however, that we should only or exclusively understand ourselves as participants in commercium. Kant simply highlights that our status as earth dwellers has logical and normative priority over any membership in positively instituted political communities. Rather than overcoming or replacing it, commercium gives us a different perspective on communio. In this, I follow Brian Milstein, according to whom the idea of commercium is intended to provide us with a critical perspective on social, cultural and ultimately political boundaries. The thought is that

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before [in a justificatory rather than temporal sense, JH] we are nations, states, or even individual property-owners, we are free beings, each with our own standpoint, who are not only capable of determining our own actions visà-vis one another but who are capable of negotiating publicly recognised principles for sharing our life on earth. (Milstein 2013 p. 125)

Thinking of ourselves as co-participants in a dynamic cosmopolitan community requires not only that we comport ourselves in a certain way towards others, it also requires that we relate critically to our own practices and institutions. We do so by asking to what extent they affirm our ability to think of ourselves as joint makers of the world around us or whether they curtail this ability by delimiting possible interaction as well as entrenching and naturalising existing separations. Taking up the perspective of commercium is thus an ‘exercise in critical reflection on the terms of our relations of community with one another’ (Milstein 2013 p. 120). From this standpoint, we are asked to reflect on our interdependence relations with others beyond our political community as well as to collectively structure and transform the terms of interaction we find ourselves in rather than putting up with them. But that is not to say that we necessarily have to dissolve or do away with the latter. While I agree with the gist of this interpretation, I worry that in arguing that we always ‘retain the reflexive capacities to build upon, critique, or revise the terms on which [we] coexist and interact with one another’ (Milstein 2013 p. 127), Milstein underestimates the bindingness of this exercise in critical reflection. The passage from the first Critique confirms that Kant has something quite strong in mind: the global standpoint is a condition of any possible communal standpoint. In other words, no local standpoint without a global standpoint. Textually speaking, we must regress further beyond the property argument to the idea of original common possession as its condition of possibility. What is more, the institutional implications of Milstein’s reading remain rather vague. His primary intention is to denaturalise the foundations and thus the boundaries of political community (Milstein 2013 p. 127). For, the distinction between communio and commercium enables us to distinguish the unavoidable conditions of our concurrent coexistence on the one hand, from the contingent products of history (such as relations of property and

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sovereignty), on the other hand.³ According to Milstein, this allows us to understand ourselves as makers of the practices and institutions we find ourselves in—to take ownership of them—and, ultimately, to critique, contest and revise them. What this leaves open is what precisely follows institutionally from what I have called the global standpoint. My aim in the remainder of this chapter is to link the question what it means to look at relations of communio through the prism of commercium with Kant’s conception of cosmopolitan progress. In particular, I want to highlight the role of the state in realising the highest political good of ‘universal and lasting peace’ (DoR 6:355). Part of the historical task set by Kant’s grounded cosmopolitanism is to transform existing states in line with their own underlying cosmopolitan principles, or so I shall argue.

5.2 States as cosmopolitan agents In the preceding section, I gathered some preliminary evidence for the idea that an important aspect of Kant’s global standpoint consists in its function as a global standpoint on existing states. I argued that his notion of global community or commercium should be thought of as transforming the way we look at particular political communities from within. I would now like to connect the previous discussion with the wider question that frames this chapter as a whole, that of cosmopolitan progress. My claim is that the way to a ‘cosmopolitan constitution’ (PP 8:358) goes through a world of radically reformed states that bind themselves and hence their citizens to rightful comportment towards other states, non-state peoples and individuals of their own accord. Hence, Kant’s conceptions of domestic and cosmopolitan progress intersect in the idea of the cosmopolitan state.

5.2.1 Political progress I would like to embed Kant’s notion of cosmopolitan progress within his conception of political progress more generally. Within the Doctrine of Right, I shall argue, political progress is conceptualised on two dimensions that concern the perfection and the creation of institutions respectively. While the former primarily pertains to the domestic and the latter to the cosmopolitan ³ Again, this is reflected in my regress, in Chapter 3, from the practice of reciprocally raised property claims (and the ensuing duty of state entrance) to the fact of entering the world as an earth dweller (and the concomitant obligation to think of the earth as possessed in common).

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context, the two domains intersect in the idea of a cosmopolitan state. In addressing Kant’s notion of domestic progress (which, somewhat unfortunately, is often equated with political progress as a whole), interpreters of Kant’s mature political thought frequently confront a puzzle: given his overwhelming focus on the importance of state entrance, how is Kant even able to conceptualise progress in the first place? The former is presented as a ‘binary’ matter: a rightful condition is something we do or do not have, rather than something that pertains to a greater or lesser extent. At first sight, this idea sits uneasily with anything like a gradual, developmental process towards some kind of final end, whether we can actually attain or merely approximate that end. Elisabeth Ellis (2005), for instance, laments that in construing the relationship between state of nature and civil condition, Kant ‘makes two arguments simultaneously’ that ‘do not fit together very well’ (Ellis 2005 p. 126): on the one hand, there is ‘the requirement to exit the state of nature based solely on the need for a common judge of the right’ (Ellis 2005 p. 126). According to this strand of Kant’s argument, the only difference between the state of nature and the civil condition is that in the latter there is a central authority or judge with the ability coercively to enforce common judgement. On the other hand, Ellis speaks of a requirement to transition ‘not merely to an orderly state but to republican governance’ (Ellis 2005 p. 126), focusing on the a priori elements of a just as opposed to simply a determinate exercise of juridical authority. Ellis considers the relation between these two arguments ‘obscure’ and ‘confused’ (Ellis 2005 p. 126). Her own strategy is ultimately to collapse them into one by suggesting that Kant envisions a single, ‘extremely long’ (Ellis 2005 p. 114) gradual transition from the state of nature to the rule of law as instantiated only in the perfect republic. The notion of ‘provisional right’ plays a central role within this narrative. It is said to be applicable both in the state of nature and within ‘faulty’ (Ellis 2005 p. 133) states that mirror their own normative principles imperfectly. I want to withstand this conclusion and take more seriously the tension Ellis herself identifies. I do so by drawing on Jacob Weinrib’s (2016) distinction between two distinct levels of normative analysis in the Doctrine of Right. These levels concern, respectively, the very nature of a rightful condition— what constitutes it—and the regulative standard with which we must bring it into increasing conformity. In a first step, this will allow us to conceive of political progress within the state as a process in which we reform an existing institution such that it gradually approaches its own underlying norm. Against Weinrib, however, I will insist that, beyond the state, political progress is conceived as a progress of creating rather than perfecting institutions.

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The contrast between constitutive and regulative principles, norms, or judgements plays an important role across different contexts in Kant’s philosophy (cf. Hanna 2016).⁴ Generally speaking, it allows us to distinguish between norms or principles that constitute a rational activity, and norms internal to that activity that guide or regulate it. In Kant’s theoretical philosophy, this distinction serves to separate the faculty of the understanding with its constitutive categories from the faculty of reason with its regulative (transcendental) ideas (CPR A642/B670ff., Buchdahl 1992 pp. 167–192; Friedman 1991). In his ethics, the pertinent contrast is one between the categorical imperative as constitutive of moral agency, and the highest good as the principle regulating our actions in accordance with the categorical imperative. Although the constitutive level is characterised by a binary logic (every particular act either accords with the categorical imperative, or it does not), as finite agents who cannot discount our desire for happiness we are ineluctably led to the (regulative) idea of a gradual progress towards a world in which all more specific ends are unified. Weinrib (2016) suggests that we can draw on this distinction in order to separate two distinct (thought related) normative dimensions in the Doctrine of Right. They concern, respectively, to the very nature of a rightful condition— what constitutes it (and hence its juridical standing)—and regulative standards with which we are to bring a legal order into increasing conformity. In systematising the distinction between the two dimensions, it is worth paying attention to two aspects in particular: their respective contexts of application (which inquiry is pertinent under which circumstances) as well as the kinds of duties they impose (and the agents to which they apply). In specifying what a legal system is, the constitutive level allows us to distinguish it from other entities in the (legal) world (Weinrib 2016 pp. 47–57). The thought is that a rightful condition exists wherever publicly authoritative institutions enable private persons to interact with one another rightfully by making and enforcing universally binding public laws. Of course, not every organised form of power constitutes a rightful condition. While Kant has surprisingly little to say with regard to what it is that distinguishes such a public agent from the pure exercise of power by a private agent who just happens to have a monopoly of force somewhere (Ripstein 2009 p. 337), at least certain formal features of the rule of law such as generality, publicity, prospectivity, clarity, and consistency will need to be in place for the minimal threshold of genuinely public law making to be fulfilled (Weinrib 2016 p. 62). ⁴ I do not have the space here to explore how this distinction relates to the apparently closely related (though not equivalent) contrast, first mentioned in the third Critique (CJ 20:211), between determining and reflective judgements.

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The norm pertinent to the constitutive level requires of private persons who raise reciprocally valid property claims against one another to enter into the state. They must establish public institutions that enact, interpret, and enforce generally valid public laws over a specified territory, and submit to their rule. In other words, the norm calls for the creation of an agent that solves a ‘horizontal’ problem among private persons, namely their respective lack of unilateral moral authority over one another. In so doing, it enables them to interact on rightful terms. This requirement is satisfied once private persons find themselves in a civil condition constituted by a public authority that makes law in the name of all. Its absence is described by Kant as a condition of ‘anarchy’ (PP 8:302, 346, 374) or—even worse, in the presence of a self-declared political power that conducts itself so egregiously that we are thrown back into a state of nature—‘barbarism’ (DoR 6:337, 351; PP 8:354–355, 357, 359, 376).⁵ In such a lawless state of affairs, individuals cannot interact with one another on terms that respect their reciprocally equal moral status; they are, rather, subject to the arbitrary powers of others. By remaining within the latter condition, persons commit a ‘wrong in the highest degree’ (DoR 6:307/308). For unlike violations of private rights in the civil condition, which can be rectified, violations of the constitutive norm are at odds with the very possibility of public institutions and perpetuate the lawless interaction of the state of nature. Let us now turn to the regulative dimension on which, according to Weinrib, Kant’s theory of political progress is located. While the constitutive level specifies what it means for a condition to be lawful (and hence legitimate), the regulative level is concerned with its adequacy or justice (PP 8:297, see also Weinrib 2016 pp. 57–65). The thought is that the very rationale for bringing about political authority has moral standards for its exercise built into it. In the first place, the regulative principle of right requires the sovereign to bring the existing legal order into the closest possible conformity with an immanent standard of justice: a criterion for the just exercise of public authority is inherent to the rationale for its establishment. The normative standard central to a rightful condition—its regulative principle—is encapsulated in the idea of the original contract (DoR 6:315, see also Ripstein 2021a pp. 198–204). Kant highlights that by introducing the original contract as the concept “on which alone a civil and hence thoroughly rightful constitution among human beings can be based “(PP 8:297), he does not intend to suggest that we should think of the state (or anything it does) as ⁵ In the Anthropology (7:330), Kant characterises a condition of barbarism as ‘force without freedom and law’. See also Ripstein (2009 pp. 336–343), Weinrib (2016 pp. 76–108), Ebbinghaus (1953).

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based on an actual contract, a product of voluntary agreement between private wills.⁶ Instead, it pertains to the normative structure of the civil condition itself and the way it regulates interactions among citizens through institutions and laws. The original contract, Kant claims, is only an idea of reason, which, however, has its undoubted practical reality, namely to bind every legislator to give his laws in such a way that they could have arisen from the united will of a whole people and to regard each subject, insofar as he wants to be a citizen, as if he has joined in voting for such a will. (PP 8:297)

The function of the original contract is to provide a ‘touchstone of any public law’s conformity with right’. It binds the sovereign in their exercise of public authority, imposing a duty to design the institutional arrangement and to make law such that the people could impose it on themselves. The institutional structure that Kant takes to ideally fulfil this function is that of a ‘true republic’ (DoR 6:341). In a fully republican system of government, the lawmaker speaks in the name of everyone through officials acting as genuinely public (rather than private) persons such that citizens can be thought of as collectively ruling over themselves. It is defined by a separation of powers between legislative, juridical and executive authorities that respectively specify, apply and enforce rules that respect each citizen as an equal. Through this threefold unity of sovereign competencies, the state reflects ‘the three relations of the united will of the people’ (DoR 6:388).⁷ Notice that the regulative level does not pertain to the (horizontal) relation between private individuals, but rather to the (vertical) relation between the sovereign and its citizens. Public institutions solve a particular problem regarding the former, yet in so doing create a new one regarding the latter. This opens up an additional normative dimension that simply lacks applicability prior to state entrance. For the relationship to which it pertains—that between sovereign and citizens—is not in existence. The state is the point of departure for considerations of justice to get off the ground in the first place. ⁶ The failure to acknowledge this has mislead a number of interpreters (e.g., Kersting 1984; Riley 1983; Rosen 1993) to read Kant as an actual social contract theorist. For a rejection, see also Flikschuh (2000 pp. 147–152). ⁷ Kant argues that the legislative authority can be held by or entrusted to one, a few or many persons, such that the republican form of government is compatible with autocracy (monarchy), aristocracy and democracy, as long as the three elements are institutionally distinct (DoR 6:338). He follows Montesquieu in defining despotism (the opposite of republicanism) through the combination of executive and legislative authority in one hand (PP 8:352, 324).

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I have already indicated that the duty to rule and legislate in accordance with the norm internal to a juridical condition is incumbent upon the sovereign rather than each private person. As the agent of authority, it is the sovereign— regardless of whether it is embodied and exercised by one, many, or all citizens—who is bound to continuously refine and perfect the legal order in line with its underlying idea, that of the original contract. This is not to deny that citizens have an important role to play in this process: in making use of their right to free expression, they can advise and petition the ruler, point out (in a cooperative spirit) existing injustices in ‘matters of taxation, recruiting and so forth’ (DoR 6:319), and urge possible reforms and improvements of the law (Niesen 2007 pp. 192–202). In holding the sovereign accountable to the standards immanent to his claim to rule, individual citizens play their limited though indispensable part in bringing the legal order as a whole closer to justice. Notice that the ‘original contract’, together with other concepts located on the same level such as the ‘general united will’ or the ‘perfect republic’ are ideas of reason with merely regulative function and hence not equivalent to any set of empirical particulars. No actually existing institution, that is, could ever be fully congruent with them: any instantiation of a civil condition necessarily mirrors its own underlying principles imperfectly (Ripstein 2009 p. 200). But to say that perfect justice is unattainable is not to say that there cannot be a duty to gradually bring a civil condition into the deepest possible conformity with its own internal standard, regardless of how defective it may seem. Strictly speaking, every existing legal order is ‘unjust’ in the sense that, while the rule of law is formally in place, the way authority is exercised does not fully conform to its own internal standard. Yet unlike violations of the constitutive principle, these pathologies do not actually undermine the normative powers ascribed to a rightful legal order. While the former point to the absence of public authority, any defective version of the ideal republican system of government presupposes it to be in place.⁸ In Kant’s politics, hence, constitutive and regulative levels issue two sets of norms that figure as distinct, while mutually implicating, stages in a conceptually sequenced argument. Keep in mind that this sequence is of a conceptual rather than a historical kind. The distinction between creating and perfecting a legal order should be seen as analytical, that is, as serving explicative purposes rather than describing a historical process. ⁸ In practice, it may be contested which pathology we face in a particular case. While Ripstein’s (2009 pp. 336–343) preferred example of Nazi Germany may be a clear instance of barbarism, in other cases the lines will certainly be blurrier.

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The contrast between the two normative dimensions and the ensuing conceptual bifurcation between (legitimate) authority and justice comes across in a particularly stark manner in Kant’s prohibition of resistance and revolution.⁹ He (infamously) argues that the authority of an existing rightful condition is ‘unconditional’ (T&P 8:299): no citizen can refuse obedience to the law on the grounds that it deviates from its regulative standard. Even a legal order ‘afflicted with great defects and gross faults’ such that it is in need of ‘important improvements’ may not be resisted (DoR 6:372). As just mentioned, citizens do very well have the right to political speech as their ‘sole palladium’ (T&P 8:304). However, when push comes to shove, ‘on the part of the people, there is nothing to be done about it but to obey’ (PP 8:297). That is to say, citizens’ right to be governed justly, as correlating with the sovereign’s duty to bring the existing legal order into conformity with the idea of the original contract, is non-coercive. With our conceptual distinction at hand, we are better positioned to make sense of Kant’s rigid stance on this issue.¹⁰ The pre-civil condition is a lawless condition: not one of injustice, but devoid of justice. In undermining the very possibility of rights relations and hence of progress towards just government, Kant thinks, revolutionaries threaten to throw us back into anarchy.¹¹ Resistance to the public authority is prohibited because it ‘would take place in conformity with a maxim that, made universal, would annihilate any civil constitution and eradicate the condition in which alone people can be in possession of rights generally’ (PP 8:229). This claim is not empirical— that widespread disobedience even against unjust laws would lead to chaos and anarchy—but conceptual: disobedience, resistance and revolution appeal to normative criteria that are not even applicable outside the existing legal order. Ultimately, I remain hesitant to fully commit myself to the constitutiveregulative distinction, which comes with much baggage in Kant’s philosophy. Straightforwardly applied to the Doctrine of Right, it may actually end up raising more questions than it answers. The argument Weinrib makes on the basis of this distinction, however, is highly persuasive. It allows us to see that, in the ⁹ On different accounts of Kant’s take on the (no-)right to revolution, see Korsgaard (2008); Flikschuh (2008); Ripstein (2009 pp. 325–355). ¹⁰ Besides the rationale I focus on here, Kant also provides a number of other arguments against resistance and revolution, including from the necessarily non-public character of acts of revolution (PP 8:381) and from the conceptual impossibility of a coercive right against the highest authority (DoR 6:320). ¹¹ Of course, we may question the underlying assumption that within every revolutionary overthrow (at the transition from old to new regime) there is necessarily an ‘intervening moment in which any rightful condition would be annihilated’ (DoR 6:355).

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domestic (!) context, political progress is conceptualised as a gradual process within the constitutive framework of the civil condition, guided and framed by a number of regulative ideas. In each doing their part to bring an existing rightful condition in ever closer conformity with its own underlying standard, both the sovereign (who makes legal and institutional arrangements) and the citizens (who advise the sovereign and hold them to account) are guided by regulative ideas such as the ‘original contract’ and the ‘perfect republic’. Recall Ellis’ expressed confusion, briefly referred to at the outset of this section, about Kant’s simultaneous argument for the need to enter the civil condition on the one hand, and to reform the pertinent institutions, on the other. Her own strategy was to cover the tension by drawing on the idea of ‘provisional’ politics, which allows us to conceive of a single dynamic from the state of nature to perfect government, rather than making productive use of it. What she overlooks is the way in which state entrance does indeed fundamentally transform the normative landscape. While we can ascertain, at any point in time, whether or not we are in a civil condition, we can simultaneously affirm the possibility of continuous political (that is, institutional) progress within that condition.

5.2.2 Cosmopolitan progress At the heart of Kant’s account of political progress as reconstructed by Jacob Weinrib lies the intriguing claim that the path from anarchy to justice goes through injustice: the move towards an ideal future proceeds through institutions that are initially unjust and gradually improve in line with their own underlying standard.¹² This is certainly not an inaccurate description of how much political change has come about historically: as an institution concentrates power so as to effectively deliver certain goods, it is being challenged and held to account by its subjects who want their voices heard. Kant’s hypothesis, however, is not deduced from real world politics, but inherent to the two-stage logic of political normativity. That is to say, the sense in which the creation of (imperfect) systems of positive law is a necessary first step towards the emergence of fully rightful relations within them is conceptual rather than speculative. Only once a condition of public right exists can respect for the more stringent requirements of the ideal civil constitution be claimed and brought to bear against the powers that be. Hence the much-criticised ¹² For a contemporary (though not Kant-inspired) argument along these lines, see Nagel (2005).

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reformist (i.e., anti-revolutionary) flavour of Kant’s politics: we honour our obligation to help bring about a more just institutional order not by undermining the current one, but by holding the sovereign accountable to the standards internal to their exercise of authority. Given that institutions come with their own immanent normative standards that guide reform, according to Weinrib’s account the very idea of political progress conceptually presupposes that institutions are in place. The somewhat perplexing implication is that, on this view, cosmopolitan progress appears to remain effectively inconceivable. For we saw that the domains of international and cosmopolitan right are both depicted as devoid of publicly coercive institutions that could be brought in line with their own underlying principle. Contradicting this conclusion, I now want to argue that the idea of progress as institutional perfection applies only within, but not beyond the state. Unlike domestic progress, cosmopolitan progress is indeed conceptualised as a gradual process of creating institutions where they are initially absent. Given that we cannot force other collectives (whether organised as states or not) into a shared juridical framework with us, institutions that encompass the entire cosmopolitan plurality are realised in a slow and gradual process in the course of which rights relations are incrementally expanded with the aim of ultimately encompassing the entire sphere. The juridical norms governing this process of progressive institutionalisation are the norms of juridical self-constraint developed in Chapters 3 and 4. Evidence for this view, I take it, comes from a remark that concludes his discussion of cosmopolitan right: Someone may reply that such scruples about using force in the beginning, in order to establish a lawful condition, might well mean that the whole earth would still be in a lawless condition; but this consideration can no more annul that condition of right than can the pretext of revolutionaries within a state, that when constitutions are bad it is up to the people to reshape them by force and to be unjust once and for all so that afterwards they can establish justice all the more securely and make it flourish. (DoR 6:353)

Kant here appears to draw an analogy between the prohibition to coercively force distant strangers into shared institutions, on the one hand, and an effort to bring about domestic progress through revolution, on the other. In the domestic context, Kant suggests, the revolutionary looks for a quick fix: rather than going the painstaking way of gradually reforming the legal order in line

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with its own underlying principles, she is after a violent shortcut. In doing so, Kant thinks, they destroy the prospect of a just order altogether. Similarly, colonisers on a ‘civilising’ mission hope for neat solutions where there are none to be had. On their view, the quickest way to establish rights relations with non-state peoples is to force them into the state or some other kind of shared coercive institution. Yet in so doing, they undermine the possibility of peaceful cosmopolitan interaction altogether. In other words, finding terms on which such interaction can take place is a daunting process in which statist and stateless peoples must slowly get to know each other through communication and interaction on equal terms. The cautious, peaceful offers of interaction to which Kant limits cosmopolitan right are only a first step intended to initiate such a process. Ideally, what they get off the ground is a dynamic of progressive institutionalisation in the course of which distant strangers learning to mutually understand each other and ultimately agree on ‘universal laws for their possible commerce’ (DoR 6:353). Hence, Kant can be read as drawing an analogy between his progressive reformism within the state, on the one hand, and progressive realisation of right beyond the state, on the other. In contrast to the domestic context,¹³ institutional creation is precisely not an all or nothing affair but proceeds incrementally. Against this background, it looks as though Kant operates with a bifurcated conception of political progress that neatly distinguishes the projects of domestic and cosmopolitan progress, each with their own dynamic. My aim in the remainder of this section is to further complicate this picture. I want to suggest that there is an important point in which the projects of creating and perfecting institutions, and thus of domestic and cosmopolitan progress, intersect. This comes through shortly after the passage just quoted, as Kant picks up once again on the theme of reform and revolution. In introducing the idea of ‘universal and lasting peace’ as the ‘entire final end of the doctrine of right within the limits of mere reason’ (DoR 6:355), he argues: The attempt to realize this idea should not be made by way of revolution, by a leap, that is, by violent overthrow of an already existing defective constitution (for there would then be an intervening moment in which any rightful condition would be annihilated). But if it is attempted and carried out by gradual reform in accordance with firm principles, it can lead to continual approximation to the highest political good, perpetual peace. ¹³ Moreover, given that institutions beyond the state remain non-coercive, their creation does not transform the normative landscape as radically as state entrance does. As I showed in the preceding chapter, we are still left with the requirement of juridical self-constraint.

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I believe Kant is suggesting here that the reform of existing institutions can actually be conceived as a component of cosmopolitan progress. To put it differently, he hints at what I want to call the cosmopolitan state. The cosmopolitan state binds itself (through constitutional provisions) and Its citizens (through positive laws) to treat foreign states, non-state peoples and individuals as required by the provisions of international and cosmopolitan right respectively. In so doing, it contributes to the establishment of rights relations that transcend it. Let me briefly spell out the implications of this idea with regard to each of the three domains of public right. To start with, already domestic progress itself has a certain cosmopolitan logic built into it. As Kant famously argues in anticipating what has come to be known as the ‘democratic peace thesis’ (Doyle 1983) republican states are more reluctant to go to war (e.g., DoR 6:345/6). For the ordinary citizens, in whose will power is exercised in a republic, will have to bear the cost of fighting wars and will suffer most from Its consequences. As Kant puts it in Perpetual Peace, nothing is more natural than that they will be very hesitant to begin such a bad game, since they would have to decide to take upon themselves all the hardships of war (such as themselves doing the fighting and paying the costs of the war from their own belongings, painfully making good the devastation it leaves behind, and finally – to make the cup of troubles overflow – a burden of debt that embitters peace itself, and that can never be paid off because of new wars always impending). (8:350)

In a republic, citizens are most likely to be effective in making their voice heard and persuade the sovereign from waging a war. So even by turning a state into a republic, we are already turning it into a cosmopolitan agent. In the context of the right of nations, states must bind themselves through their own domestic constitutional order to comply with the laws of war as well as (subsequently) to join and comply with a voluntary federation. And when it comes to cosmopolitan right, states ought to bind themselves and their citizens to treat distant strangers as earth dwellers. On the one hand, states can legislate provisions that constrain their citizens’ comportment abroad. For instance, they can enforce rightful conduct by merchants, settlers, or missionaries who claim to represent them. In the narrower economic sense, this means that they set ‘parameters on admissible behaviour in the global market’ (Kleingeld 2011 p. 146)

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and put an end to the ‘exploitative, profit-seeking practices of voyagers and the actions of the quasi-sovereign corporations like the imperial Indies companies’ (Muthu 2009 p. 195). More generally, states must prohibit all kinds of comportment of their citizens that coerces, deceives or takes advantage of another party abroad. They must stop them from engaging in ‘colonial adventures’ of any kind (Niesen & Eberl 2011 p. 266). As I argued in Chapter 3, the normative logic of Kant’s grounded cosmopolitanism is one of self-constraint: only if states coercively ensure that their citizens, when acting as traders, settlers or missionaries abroad, attempt to establish interactions with distant strangers on fair or equitable terms can we even hope for the entire cosmopolitan plurality to coexist in a condition of (lawful) peace. On the other hand, as I argued in Chapter 4, states not only ought to regulate the comportment of their citizens abroad, but also codify mobility rights of non-citizens who turn up their own shores. In particular, they must allow them to pass through their territory in order to offer themselves for interaction and exchange at the destination of their choice. In so doing, states treat those individuals as cosmopolitan agents on the move who, in roaming the earth’s surface, ‘actualise’ the community of possible physical interaction with the aim of bringing all earth dwellers into ‘understanding, community, and peaceable relations’ (PP 8:364). To sum up, a cosmopolitically transformed state acknowledges obligations of international and cosmopolitan right: it binds itself to interact with other states or individuals on peaceful terms and binds its citizens to do so with distant strangers. In the absence of a coercive form of global government, transforming states into outward-looking, cosmopolitan agents is the most promising—in fact, the only viable—strategy for finding peaceful terms of engagement with other states and non-state peoples. Taking up the line of thought developed in Section 5.1, to take up the global standpoint from within states is to transform them into outward-looking, cosmopolitan agents. On the emerging view, domestic and cosmopolitan progress are not to be thought of as independent or ultimately even competing political projects. The two intersect in the idea of a cosmopolitan state. The idea of ‘universal and lasting peace’ (DoR 6:355) guides our efforts to institutionalise the cosmopolitan domain as much as to gradually reform states from within. Put differently, Kant’s tripartite system of public right does not only lead us away from the state towards a global, multi-faceted legal order. It also equips as with a cosmopolitically informed and, ultimately, transformed notion of statehood itself. This framework chimes with what Peter Niesen (2012) calls a ‘cosmopolitanism

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within one country’,¹⁴ i.e., a cosmopolitanism that highlights transformative potential within the state rather than restricting its focus on models of a global institutional order beyond it.

5.3 Hope for perpetual peace According to the argument of the preceding section, cosmopolitan progress as conceptualised by Kant requires the creation of a radically reformed state that binds itself to rightful comportment towards other states and non-state peoples of its own accord. To take up the global standpoint from within states is to transform them into cosmopolitan agents. In order to gain a more comprehensive understanding of Kant’s conception of cosmopolitan progress, I now turn from its conceptual nature to the subjective attitude we, as individual agents, should adopt in relation to it. I want to argue that our cosmopolitan activity from the global standpoint, both within the state and beyond, is guided by the hope that other states will act likewise and that non-state peoples accept our offers for commerce, such that we can gradually approach a condition of peace. I take it that this is Kant’s position specifically in the Doctrine of Right, where he drops the teleological language of earlier writings. I will start by reconstructing this shift away from teleology (associated with the famous ‘guarantee’ passage in Perpetual Peace) and towards a hope-based framework, which I then proceed to discuss in more detail.

5.3.1 Progress without teleology The ‘guarantee’ of perpetual peace (PP 8:360)—i.e., the claim that nature ‘wills’ perpetual peace to come about irrespective of human efforts—is arguably the most perennially contested passage when it comes to Kant’s view on cosmopolitan progress. Imitating the formal structure of a peace treaty, the essay’s main part consists of a number of ‘preliminary’ and ‘definitive’ articles outlining the institutional conditions necessary to bring about peace (PP 8:384–360). The prescribed institutional arrangement, which the Doctrine of Right redescribes as a unified system of public right, in turn derives from a more fundamental duty, which ‘reason itself prescribes’ (PP 8:310/311), to ¹⁴ On Niesen’s view, this was a predominant (though subsequently largely forgotten) understanding of cosmopolitanism during the enlightenment period and can be reconstructed, for instance, in Bentham’s writings. Niesen hints at the presence of such a conception in Kant without developing it in much detail.

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work towards the establishment of a condition that puts an end to war and discord—perpetual peace. Against this background, Kant’s claim, tucked away in the first of two ‘supplements’ to the essay, comes as a bit of a surprise: What affords this guarantee (surety) is nothing less than the great artist nature […] from whose mechanical course purposiveness shines forth visibly, letting concord arise by means of the discord between human beings even against their will […]. (PP 8:360)

Kant’s stunning claim, it seems, is that nature—the totality of observable events—guarantees that peace will come about, whether we will it or not. Nature has not only created the (empirical) circumstances that require a peaceful order in the first place, for instance, by causing individuals to disperse ‘even into the most inhospitable regions’ (PP 8:363) of the planet. It actually ‘affords the guarantee that what man ought to do in accordance with laws of freedom but does not do, it is assured that he will do, without prejudice to his freedom, even by a constraint of nature’ (PP 8:365). Echoing the essay’s formal resemblance to a peace treaty, Kant argues that nature acts in analogy to a ‘guarantor’ power that enforces peace treaties should one of the parties fail to comply (Niesen & Eberl 2011 p. 267). Invoking strongly teleological language, he insists that ‘nature wills irresistibly that right should eventually gain supremacy’ (PP 8:367) and specifies unequivocally that ‘when I say of nature, it wills that this or that happen, this does not mean, it lays upon us a duty to do it (for only practical reason, without coercion, can do that) but rather that nature itself does it, whether we will it or not’ (PP 8:365). How to reconcile this appeal to nature with the argument from duty has been the subject of sustained dispute among interpreters (e.g., Kleingeld 1995 pp. 62–7; Ludwig 1997). Surely, if nature can and will achieve the pertinent task even against individuals’ wills, then whether or not agents acknowledge any duties on their part makes no difference. Conversely, if individuals do act on their obligations, what job is there left to do for nature? These questions have led interpreters to worry that Kant’s teleological account of human history threatens the normative dimension of his political philosophy by precluding meaningful action (Ellis 2005 p. 42). As just mentioned, speaking to this worry is not my primary aim in this chapter. For, we will see that in the Doctrine of Right Kant drops the pertinent teleology altogether. Nevertheless, understanding what is going on in the ‘guarantee’ passage will help us appreciate a particular problem that, I take it, Kant remains concerned also after Perpetual Peace.

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A traditionally prominent interpretation takes Kant to be engaged in a kind of proto-Hegelian reconciliation of theoretical and practical reason (most famously, Yovel 1980).¹⁵ Unsurprisingly, Kant’s supposed attempt to offer a narrative of freedom’s historical self-realisation is then diagnosed as a failure: he simply lacks the relevant metaphysical concepts required to tell the Hegelian tale. Of course, anyone familiar with Kant’s wider philosophical outlook—in particular, with the epistemological and metaphysical limits (self)imposed by the framework of his Critical philosophy—should be sceptical of such a reading: Kant’s systematic division between nature and freedom makes it impossible from the outset to get a moral argument out of nature. A similar conclusion can be drawn also from the immediate context of the ‘guarantee’ argument. After first introducing it, Kant proceeds to distinguish between ‘fate’ and ‘providence’ as two standpoints we can take on human nature and history (PP 8:361/362). The former is equated with a deterministic and thus ultimately fatalistic perspective from which we observe cause-andeffect relations in the world, while remaining ignorant both of their ultimate cause and their final end. The providential perspective by contrast, which Kant vindicates with regard to the guarantee, evaluates history from its presumed purposiveness.¹⁶ The idea of a higher cause, that is to say, is nothing we can observe. Rather, it is ‘add[ed] in thought’, i.e., employed for regulative (not constitutive) purposes. We judge nature as though it was purposive. Moreover, Kant is keen to clarify that the guarantee is concerned with a specific practical purpose, namely ‘its relation to and harmony with the end that reason prescribes immediately to us (the moral end)’ (PP 8:362). That which permits us to read nature as guaranteeing perpetual peace is our own moral duty to bring it about. Nature’s seemingly purposeful and unavoidable trajectory towards perpetual peace is nothing we ‘cognise’ in the sense in which we observe law-like regularities in time and space, instead we ‘infer’ it from a practical standpoint.¹⁷ This preliminary analysis of the pertinent passage is ¹⁵ This interpretation also reverberates with a more general reading of Kant’s politics as a domain in which self-interest trumps morality (e.g., Ho¨ffe 1992). On this view, the political teleology confirms the unavailability of a genuinely moral justification of juridical obligation—nature does what humans cannot bring themselves to do. ¹⁶ Kant emphasises that we should think of nature only, as it were, in analogy with providence, a term whose literal meaning should remain restricted to religious inquiry. Ultimately, he thus advocates that we stick to the term ‘nature’ (PP 8:362). On the relation between nature and providence, see Kleingeld (2001). ¹⁷ The kind of cognition Kant precludes here is theoretical cognition (through representation of empirical objects), which does not rule out that the providential perspective provides us with a form of practical cognition of the course of nature. The difference between theoretical and practical cognition (or, relatedly, between knowledge [Wissen] and cognition [Erkenntnis]) has lately become subject to increasing scholarly debate, see e.g., Watkins & Willaschek (2017) .

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confirmed a little further on in the text, when Kant claims that nature guarantees perpetual peace ‘with an assurance that is admittedly not adequate for predicting its future (theoretically) but that is still enough for practical purposes and makes it a duty to work toward this (not merely chimerical) end’ (PP 8:368). I read this as strong evidence that the appeal to nature’s assistance does not actually constitute a dogmatic lapse into an eschatological philosophy of history. We ought to understand the guarantee from the perspective of practical rather than theoretical reason—the standpoint of the moral agent, that is, not that of the third-personal observer. This allows us to conceive of it as complementing rather than subverting the agential strand of Kant’s political philosophy. Individual agents are not only indispensable contributors on the path to perpetual peace, the need as such to postulate progress actually arises from their consciousness of the pertinent duty. The question Kant is concerned with in the ’guarantee’ passage is which assumption about the world, history and (human) nature we have to make in order to contribute to it ourselves. That said, the teleological language Kant opts for in order to address this question is indeed problematic. For, it ends up obscuring the role of human agency. The supposed certainty about nature’s assistance is neither required for practical purposes (but is, to the contrary, more likely to lead us to lean back and watch artist nature do her work) nor warranted from an epistemic perspective. Perpetual Peace ultimately muddles the relation between the arguments from duty, on the one hand, and from nature, on the other. From this perspective, it is helpful that Kant gives up on any appeal to nature’s assistance in the Doctrine of Right. Many interpreters have noted the absence of teleological language there (Byrd & Hruschka 2010; Flikschuh 2000; Ripstein 2009). However, at the very end of the Doctrine of Right (DoR 6:354/5), in a ‘Conclusion [Beschluss]’ attached to the final section on cosmopolitan right, Kant addresses a very similar problem. He starts by defending more generally the idea, familiar from a variety of different contexts across his philosophy, of an epistemic attitude that we are warranted to adopt for practical reasons: If someone cannot prove that a thing is, he can try to prove that it is not. If (as often happens) he cannot succeed in either, he can still ask whether he has any interest in assuming one or the other (as a hypothesis), either from a theoretical or from a practical point of view […] An assumption is adopted from a practical point of view in order to achieve a certain end […]. What is incumbent upon us as a duty is […] to act in conformity with the idea of

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that end, even if there is not the slightest theoretical likelihood that it can be realized, as long as its impossibility cannot be demonstrated either.

Kant here sketches a kind of attitude that we are licensed to adopt for practical reasons (i.e., because we have set ourselves an end) as long as the relevant proposition is theoretically undecidable, i.e., it cannot conclusively be decided one way or another on epistemic grounds. Proceeding specifically to the cosmopolitan context, Kant then goes on to argue that […] the question is no longer whether perpetual peace is something real or a fiction, and whether we are not deceiving ourselves in our theoretical judgment when we assume that it is real. Instead, we must act as if it is something real, though perhaps it is not; we must work toward establishing perpetual peace and the kind of constitution that seems to us most conducive to it (say, a republicanism of all states, together and separately) in order to bring about perpetual peace and put an end to the heinous waging of war […]. And even if the complete realization of this objective always remains a pious wish, still we are certainly not deceiving ourselves in adopting the maxim of working incessantly toward it.

Finally, Kant invokes yet another concept familiar from his ethics, that of the highest good. If our effort to establish ‘universal and lasting peace’ proceeds by way of ‘gradual reform in accordance with firm principles, it can lead to continual approximation to the highest political good, perpetual peace’. I would like to suggest that these passages address the very same problem as the guarantee passus in Perpetual Peace: how to deal with the fact that we do not know whether attaining the final cosmopolitan end is actually within finite human capacities, hence whether our efforts have any chance of making a difference. In both cases, he makes the case for a practical attitude of sorts that is rationally warranted (and necessary) for finite agents to fulfil their duty to gradually work towards an end, perpetual peace, the attainability of which they cannot be certain about because it is not fully in their hands. However, Kant moves away from a kind of faith in nature, to a kind of hope that is (structurally) analogous to what, in his ethics, is conceptualised as hope for the highest good. I want to suggest that this encapsulates a broader shift in Kant’s conceptualisation of cosmopolitan progress from a ‘process-focused’ to an ‘agent-focused’ framework. The former asks how (for instance, by way of which mechanisms) a progressive development from A to B takes place, thus potentially obscuring the role of human agency in relation to or complementation of nature’s assistance. The latter asks how we can do what we ought to

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do, i.e., what the world must look like for our own efforts to make a difference. Hope in the attainability of perpetual peace does not commit us to read history as an end-directed, purposive process but to the realisability of our ends. As I will show shortly, this weakens the assertability condition in a significant way: while a teleology requires, i.e., feeds off evidence of actually occurring progress in history,¹⁸ hope dispenses of the need for such evidence. We are licensed to assert the attainability of the proposed end as long as its impossibility ‘cannot be demonstrated either’ (DoR 6:354).¹⁹ We do not need to find signs of actual progress as long as its mere possibility cannot be ruled out.

5.3.2 Hope for perpetual peace I just suggested that the idea of perpetual peace provides orientation for our cosmopolitan activity, both within the state and beyond. Given that we work ourselves towards the establishment of peace among all states and non-state peoples, we are rationally licensed to hope that this condition is in fact attainable, such that our efforts are not in vain. This hope allows us to invest the requisite efforts even without knowing whether we thereby actually contribute to the ‘continual approximation to the highest political good, perpetual peace’ (DoR 6:355). As I proceed to investigate this argument more closely, I do not want to get bogged down in the question how we hope according to Kant, i.e., what it is that we are doing when we hope for something. Kant’s silence on this question is surprising given the undeniable prominence of hope in his philosophical thinking as a whole.²⁰ Instead, I want to identify the type of scenarios in which Kant takes hope to be necessary, and why. Generally speaking, my suggestion is that hope is required where we have to set ourselves an end the attainment of which is insecure or unlikely because it depends on factors beyond our control. Crucial in this context is an empirical thesis about the effects of perceived inefficacy that constitutes an important though largely implicit component of Kant’s ‘consequence-dependent’ (Chignell 2018 p. 299) moral psychology: as finite rational beings, we cannot sustain our commitment to act in a certain way if the world persistently refuses to answer to our efforts (e.g., CJ 5:452; Rel 6:5, 6:101; T&P 8:309; see also Chignell 2018; Ebels-Duggan 2016). The ¹⁸ Along these lines, Kant’s endorsement of the French revolution—which seems in tension with his prohibitive stance on any resistance against authority across other works—is often interpreted as supporting the assumption that mankind is actually on a route of ‘endless progress’ (CF 7:85). ¹⁹ Willaschek (2010) calls this a ‘theoretical undecidability’ condition on a practical belief. ²⁰ Most famously, towards the end of the Critique of Pure Reason (CPR A805–806/B833–834), Kant designates the question What may I hope? as one of the tree questions uniting human reason.

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prolonged experience that we do not make a difference will frustrate and paralyse us, slowly chipping away our ‘moral resolve’ (Rel 6:5). Ultimately, we will no longer be able to perform actions that we take to be (morally or otherwise) good or required, or at least despair in so doing. In the background of this demoralisation principle is a specific view about belief-conditions on agency. Kant seems to assume that, for psychological reasons, we can only act and sustain our commitment to action over time if we regard it as at least possible for us to make a difference, i.e., to causally contribute to the realisation of our goals. Upholding this conviction, however, becomes particularly challenging if we are faced with evidence suggesting that the circumstances of our pursuit are unfavourable, such that our efforts may remain futile. The lower the odds of actually making a difference, the harder it is to fend off despair and ultimately even to retain our resolve to act at all. In these circumstances, Kant argues, hope protects us from demoralisation and keeps us going by sustaining the idea that the world is hospitable to our agency. Hence, it constitutes a significant way of coming to terms with our finite capacity to affect the world. The most famous version of this argument is Kant’s account of hope for the ethical ‘highest good’, a world in which human happiness and moral goodness are in perfect proportion (CPR A810/B839, see also CrPrR 5:108). We need to will the highest good, Kant argues in the second Critique, since as finite beings we cannot repudiate our desire for happiness even though morality with its unconditional requirements regularly seems to demand that we do. Yet, given that we often see the wicked thrive and the virtuous bear misery, we would be left with a profound sense of practical absurdity or despair in our attempt to ‘promote’ (CrPrR 5:114) such a world unless we are at least able to hope that our efforts contribute to attaining it. Our hope for the highest good allows us to make sense of our vocation as agents under the demands of the moral law, for it gives us confidence that in acting from duty we actually contribute to (approaching) a world in which all more specific ends are unified. Notably, Kant conceptualises this progressive dynamic in pointedly ahistorical, indeed a-temporal terms;²¹ approaching the highest (ethical) good

²¹ In other works, particularly in some of the earlier essays on history and politics as well as the Religion, Kant attempts to conceptualise progress towards the highest good as occurring in historical time. However, his general construal of moral agency as noumenal and hence unknowable and timeless leaves it unclear how a notion of historically mediated moral progress is conceivable within the confines of his moral theory at all. Given the opacity (to ourselves and others) of moral disposition, how could we possibly detect whether moral progress is occurring? And given the timelessness of moral agency, how could we think of it as undergoing change in time (or even history) in the first place? See also Kleingeld (1999b pp. 70–71).

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requires infinite time as well as an almighty and benevolent God who ensures the synthetic connection between virtue and happiness.²² For only if our souls are immortal (such that we can infinitely approach our own complete conformity with the moral law) and if there is an almighty and benevolent God (capable of ensuring the precise harmony between virtue and happiness) may we reasonably hope that our moral efforts will eventually be rewarded (CrPrR 5:107–148). Our faith in God and the afterlife, the so-called postulates, gives us grounds to hope that, by doing ‘our part’ in becoming more virtuous within our lifetime, we actually promote the highest good.²³ Taking our cue from Kant’s explicit reference to the ‘highest political good’ in the Doctrine of Right, we can make sense of the practical attitude he advocates in the Conclusion along structurally analogous lines, that is to say, as a kind of hope. The unconditional end here consists in the ‘this-worldly’ (O’Neill 1997 p. 287) project of bringing about perpetual peace. Again, the prospects of realising this end depend on factors beyond our control. Our efforts (both within the state and beyond) to establish peace are bound to be in vain unless reciprocated by others. Concerning international right, a state’s compliance with the laws of war will hardly make any difference if it is surrounded by warmongering dictatorships. Similarly, its willingness to join a voluntary federation remains entirely inefficacious if other states retain their prerogative to unilaterally decide when to engage in war. Hence, states (qua their representatives) can only consistently submit to such an institution if they can reasonably hope that other and ultimately all states follow their example. Similarly, the efforts by individual earth dwellers to comport themselves as required by cosmopolitan right will only lead to a ‘peaceful, even if not friendly, thoroughgoing community of all peoples on the earth that can come into relations affecting one another’ (DoR 6:352) if receiving states or non-state peoples not only treat them hospitable but actually accept their offers of commerce, such that they can gradually get to know and understand each other and ultimately bring their interactions under law. To sum up, the idea of perpetual peace arises as a corollary of our duty to take up the global standpoint; just as ideas such as the original contract serve to frame our effort to transform the state into a perfect republic, so does the idea of perpetual peace serve to frame our cosmopolitan activity, both within the state and beyond. Given that our efforts to help bring about peace and justice ²² On faith or ‘practical belief ’, see Stevenson (2003); Chignell (2007); Willaschek (2010). ²³ Kant argues that specific items of faith function as the ‘cause [Ursache]’ of our hope (A809/B837). What he means by this is that our faith provides an account of the (explanatory) grounds of possibility of the hoped-for object (Chignell 2018 p. 305).

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face a world of seemingly ineradicable war, poverty and (colonial) injustice, however, it is all but obvious that our own attempts at peaceable interaction will make any difference. Hence, I would like to suggest that it is our hope, which gives us confidence that our own efforts will coincide with the requisite developments beyond our power that lead to a condition of peace. By asserting, ‘from a practical point of view’ (DoR 6:354), that perpetual peace is attainable, we are able to coherently adopt it as an end and work towards it. We are thus licensed to think of peace ‘as if it is something real’, lest our duty to ‘work incessantly toward it’ (DoR 6:355) from the global standpoint be undermined by the unattainability of its end. This allows us to pursue a goal that would otherwise appear chimerical. In a way that is structurally analogous to the ethical domain, hence, the looming sense of practical incoherence in the face of obligatory though seemingly unattainable ends licenses the adoption of a specific practical attitude. Just as hope for the highest ethical good provides a regulative basis for ethical action, so does hope for a peaceful world provide a regulative basis for political action from the global standpoint. Both are ideas of reason that regulate our activity as agents in the ethical and juridical domains respectively. In both cases, adopting the respective practical attitude enables us to acknowledge our respective duty without sliding into moral despair. However, this illuminating structural analogy should not lead us to overlook the significant substantive differences between the two kinds of highest goods. A number of interpreters have gone quite far in essentially equating the two, arguing that cosmopolitan progress should be conceived as part of or coinciding with mankind’s moral progress towards ethical perfection (Goldman 2012; Kleingeld 2009; Lindstedt 1999; Rossi 2005; Taylor 2010; Ypi 2010).²⁴ That is to say, we have to understand the ideal of a peaceful world as a component of the higher order goal of attaining a genuinely ethical community—the highest ethical good ‘contains perpetual peace’ (Taylor 2010 p. 12). To start with, notice that perpetual peace does not require either of the two elements constituting the highest ethical good, virtue and happiness. On the one hand, pace Guyer, considerations of happiness are irrelevant to Kant’s politics. Drawing on a distinction Kant makes concerning two meanings of the highest good (CrPrR 5:110), the highest political good is more similar to ²⁴ This claim reflects a wider interpretive position, defended by interpreters such as Wood (1999 pp. 321–323); Riley (1983); and Guyer (2000), that reduces Kant’s political thought as a whole to its instrumental value to the domain of ethics. On this view, a law-governed social order is exclusively in the service of the higher goal of attaining a genuinely ethical community. Ultimately, the idea is that ‘if everyone had a completely efficacious good will, there would be no Kantian politics to study’ (Riley 1983 p. 17).

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what he calls the ‘supreme good’ (a good that is not subordinated to any other good—nothing is normatively more important) rather than the ‘complete good’ (a good that encompasses all goods, including happiness). The ‘entire final end of the doctrine of right’ (DoR 6:355) only consists in a particular set of juridical relations, rather than two qualitatively different elements. Nor, for that matter, does perpetual peace require ethical perfection. According to the line of interpretation presently under consideration, public institutions will only improve alongside and as a consequence of progress at the level of virtuous dispositions.²⁵ The thought is that only appropriately minded individuals will be able to ultimately bring about perfect institutions. What is required for a cosmopolitan political order, hence, are ethically transformed individuals. Perpetual peace will only be realised once ‘humanity’s moral disposition’ (Ypi 2010 p. 123) is fully developed and, as it were, as a by-product of the latter. However, Kant is quite clear that perfecting the institutions that regulate our rightful interactions with others does not presuppose that we perfect our own ethical dispositions (Ludwig 1997 p. 224) As he puts it in Perpetual Peace, given that ‘it is not the case that a good state constitution is to be expected from inner morality’, being a good citizen does not require being ‘a morally good human being’ (PP 8:366). This point is paradigmatically encapsulated in the ‘nation of devils’ argument, around which much of the pertinent debate has crystalised (see also Ho¨ffe 1992). Kant famously argues that the problem of bringing existing institutions in line with their underlying regulative principle—turning a ‘more or less lawful condition’ into a perfect republic—‘is soluble even for a nation of devils (if only they have understanding)’ (PP 8:366). Arguably, the thought is not that humans are essentially evil, but merely that they are not angels. That is to say, humans are finite rational beings capable of acknowledging the a priori demands of practical reason yet routinely fail to act on them. Hence, an improvement of rights relations in line with their underlying regulative standard does not require morally perfected, fully virtuous agents. In a classic exchange on the issue, Bernd Ludwig (1997) and Reinhard Brandt (1997) disagree about the meaning of Kant’s phrasing that the problem ²⁵ In fact, the argument is usually that the interdependence between ethics and right goes both ways: not only do perfect political institutions require fully virtuous individuals, they are themselves instrumental to ethical perfection. Synchronically, politics contributes to the development of impartial dispositions in each agent by coercively guaranteeing compliance with public laws. Individuals will learn that they ‘cannot follow their inclinations with impunity, because if they violate the law they are subject to sanctions’ (Kleingeld 2009 pp. 172–173) And diachronically, institutions bolster the process of making mankind more virtuous across time by ‘knitting together’ the respective efforts of individual agents and consecutive generations, coordinating them over time and continuing them into the future (Ypi 2010 p. 124).

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of republican constitutional design is solvable ‘for’ the non-virtuous. While Ludwig takes it to imply that a moral politician needs to come onto the stage who arranges the established institutions for them in line with republican ideals, Brandt suggests that it is citizens themselves who have the required ability. I shall abstain at this point from arbitrating this dispute. What matters for my purposes is that both agree with my point that Kant decouples individual citizens’ route towards virtue from institutions’ route towards (domestic and global) justice. Given that the highest political good neither requires happiness or infinite virtue nor, for that matter, a synthesis between the two, our hope for it does not come with any further supersensible, hence metaphysically problematic, commitments. Recall that Kant’s ethics seemed to fall back onto a transcendent kind of hope for moral salvation that involves traditional religious objects such as God and the afterlife. Cosmopolitan progress, by contrast, is a distinctly historical project. Neither does it presuppose that we have infinite time to improve our worth, nor a necessary connection that could be brought about only by an all-powerful being. At this point, the Doctrine of Right’s shift away from an earlier teleological language, as described in the preceding subsection, is indeed consequential. We saw that in his political writings up to Perpetual Peace, Kant seems to insist on replacing faith in God with faith in a kind of ‘naturalised deity’ (Taylor 2010 ch. 10 fn.17; Williams 1983 pp. 2–3). That is to say, while hope for political progress does not presuppose faith in divine intervention, it does presuppose faith in nature as conducive to our efforts. Briefly, we are licensed to read nature as arranged in a way that allows human activities and efforts to play out so as to contribute to historical progress in the long run. The regulative idea of nature being conducive to our efforts ‘encourages the hope that after many revolutions […], the highest purpose of nature, a universal cosmopolitan existence, will at last be realised as the matrix within which all the original capacities of the human race may develop’ (IUH 8:29). What feeds this faith are signs of progress in history, such as the French Revolution. The Doctrine of Right, by contrast, maximally reduces the evidential conditions of warranted assertability for the requisite kind of hope. Recall that we are warranted to hope for perpetual peace ‘even if there is not the slightest theoretical likelihood that it can be realized, as long as its impossibility cannot be demonstrated either’ (DoR 6:354). It is hard to fathom indeed what it would mean to ‘demonstrate’ the ‘impossibility’ of a task for the fulfilment of which we do not depend on the assistance of mysterious supernatural entities or laws of nature, but on the actions of other free agents who must do their part in working towards a more peaceful world. Hence, we are always licensed

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to hope, both as individuals and collectively as a community of earth dwellers, that we are up to the task of coming to terms with the unavoidable fact that we share the earth’s spherical surface. Nothing should prevent us from listening to the command that ‘morally practical reason pronounces in us […]: there is to be no war’ (DoR 6:354).

5.4 Conclusion The present chapter elaborated on a line of thought that was implicit in preceding chapters: Kant’s grounded cosmopolitanism does not seek to overcome the state but to transform it in line with cosmopolitan principles. Indeed, as we saw in Chapter 4 specifically, the Doctrine of Right elevates the state to a distinct moral agent with a sovereign will, a juridical achievement that substantively shapes Kant’s vision of a global order. The present chapter went further in conceptualising the state itself as a cosmopolitan agent, i.e., as playing a critical role for cosmopolitan progress defined as bringing about institutions that transcend it. This points to a highly intriguing way in which, in the Doctrine of Right, Kant folds his long-standing cosmopolitan commitments (which are themselves reconceived in spatial terms) into a novel theory of the juridical state. Kant’s global standpoint provides a critical standpoint on our own institutional arrangements as much as a normative standard for interactions with distant strangers. Our final end in adopting and interacting from this standpoint is a condition of perpetual peace, that is, one in which all states interact with other states and non-state peoples on the basis of public laws. For such a condition to be realisable, however, our own efforts need to coincide with those of other states, and with non-state peoples’ willingness to accept our offers to establish exchange and interaction. The notion of perpetual peace thus serves as a regulative idea that guides our cosmopolitan political activity within and beyond the state. Insofar as we take up the global standpoint and acknowledge obligations of international and cosmopolitan right, we may hope that a condition of peace is attainable

Conclusion Kant’s Legacy

I began this book by reviewing some of the ways in which Kant is currently read, both by interpreters and normative political philosophers. I identified two dominant interpretive trends that have shaped the reception of his political thought in recent years: on the one hand, a focus on his cosmopolitanism as providing a particular institutional model of global order, citizenship, and democracy; on the other hand, the turn to Kant as a theorist of a distinctly state-based political morality, based on the much-debated property argument. My claim was that these interpretive trends have sidetracked us from a particularly fascinating though little-noticed strand of argument in the Doctrine of Right that constitutes a deeply systematic and sustained attempt to theorise the juridical implications of global connectedness. I started my reconstruction with a move beyond the property argument that has become the focal point of state-focused interpretations of the Doctrine of Right. The cosmopolitan vision I set out to develop starts from the fact that we come into the world as corporeal agents and goes on to sketch a distinct domain of juridical reflection concerned with the normative implications of the fact that we have to share the earth’s finite space with others. The basic idea is that the mere fact that they can affect and constrain one another through their choices by virtue of their concurrent coexistence on the earth’s circumference unites what I called earth dwellers in a community of ‘original common possession’. In order to spell out the normative implications of this set of ideas as well as its broader structural importance for the Doctrine of Right, I turned to Kant’s discussion of cosmopolitan right. The enigmatic right to visit, I argued, is not intended to recognise natural rights-like entitlements that compensate latecomers of an imagined particularisation process. Instead, it specifies the rights and obligations individuals have as earth dwellers vis-à-vis other states and non-state peoples in the absence of a shared juridical framework. The norms of cosmopolitan right reflect the conditions under which a stable and lasting global legal order that encompasses both states and non-state peoples is even conceivable. This also revealed how, in the Doctrine of Right, Kant folds the cosmopolitan commitments that permeate his writings on politics and history from the outset into a theory of juridical statehood that emerges alongside his attempt to systematically develop the moral domain of right. Kant’s Grounded Cosmopolitanism. Jakob Huber, Oxford University Press. © Jakob Huber (2022). DOI: 10.1093/oso/9780192844040.003.0007

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I indicated in the book’s Introduction that serious and thorough engagement with a historical text can often prove helpful also when it comes to orientation with regard to our very own philosophical whereabouts. In particular, at various points throughout the book, I came across intriguing ways in which specific aspects of my argument seemed to contrast with ways of thinking that predominate contemporary normative disputes, particularly when it comes to global justice theorising. My aim in this conclusion is to draw together some of these insights in a more systematic fashion in order to indicate what I take to be the continued relevance of Kant’s grounded cosmopolitanism. In so doing, I will highlight its relational (Section 6.1) and reflexive (Section 6.2) character in particular.

Relational global thinking Throughout this book, I have highlighted the profoundly relational nature of Kant’s grounded cosmopolitanism. In contrast to more recent ‘practice-based’ accounts of global justice (e.g., Beitz 2009; James 2012), however, Kant does not derive the need to theorise globally from certain empirical developments, for instance, the fact that we are increasingly interconnected in a globalised economy. Instead, he takes it to lie in the very concept of right that it be global in nature, in the sense that the earth’s spherical surface is the stage on which possible rights relations are to be established. Starting from the idea of right as an external morality that places rights claimants in a determinate and systematic relation in space, the thought (laid out in Chapter 1) is that the earth’s circumference constitutes the relevant spatial constraint once the a priori construction of juridical relations is mapped onto empirical space. This is the basis on which Kant explores the most fundamental way in which individuals relate to one another globally. Against this background, a profound contrast emerges between Kant’s grounded cosmopolitanism and the largely natural law-inspired underpinnings of much contemporary (global) theorising, with its tendency to reduce questions of global concern to questions of how to divide the world up. In Chapter 2, I juxtaposed Kant’s conception of original common possession with Mathias Risse’s Grotius-inspired notion, which is tasked to provide a ‘universally acceptable, non-parochial standpoint’ (Risse 2012 p. 114) to adjudicate questions of global reach. There, I expressed my concern about the latter’s exclusive focus on the ‘usefulness for human purposes of three-dimensional spaces’ (Risse 2015 p. 91), i.e., the conditions under which a given distribution of private property and territory is acceptable.

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The problem, familiar by now from the domestic justice literature (Anderson 1999; Scheffler 2003) but less so in the global context,¹ is not only that in prioritising the recipient-oriented question of ‘who gets what’ over a concern with intersubjective relations and structures, this framework overlooks important ways in which we relate to each other independently of our respective holdings. Another worry is that in viewing individuals as passive recipients of goods rather than agents with the authority to raise claims and the capacity to create mutually justifiable relations across borders, we lose sight of the power relations underlying particular allocations of goods. My framework thus chimes with recent attempts to re-politicise the concept of justice by refocusing it on social relations rather than individual holdings (e.g., Schuppert et al. 2015), and to replace the ‘distributive paradigm’ with an agency-based framework that puts front and centre our capacity to collectively structure and transform our shared social world. This paradigm shift has substantive ramifications also for a number of more concrete normative debates. Take the case of mobility and migration. In Chapter 4, I mentioned that those who approach Kant’s discussion of cosmopolitan right from a contemporary normative perspective are usually dissatisfied with the ‘meagre’ implications of Kantian hospitality, which they contrast both with a more expansive right to global mobility in general and substantive, needs-based entitlements to assistance and refuge for those in dire need, in particular. Indeed, Kant’s concern with travellers venturing abroad with specious (i.e., imperial) intentions rather than out of desperation or in search of a better life may appear somewhat anachronistic and is certainly at odds with the kind of migration flows we typically confront in our contemporary world. It turned out, though, that Kant’s distinct perspective may have something more fundamental to contribute. His conception of mobility as a distinct kind of agency invites us no longer to conceive of refugees, for instance, as passive recipients of goods from the global commons (that they are owed as a kind of compensation), but as active agents capable with the ability and authority to create just relations across borders. Ultimately, a Kantian outlook may reframe the issue of migration and mobility as a whole, conceiving of it less as a problem rather than a regular part of the human condition and indeed an essential precondition for learning to come to terms with concurrent existence. The wrong of colonialism, another topical issue subject to ongoing dispute (Moore 2016; Valentini 2015; Ypi 2013), suggests itself as another context of application. In Chapter 2, I followed the lines of Lea Ypi’s argument that it does ¹ Notable exceptions are Forst (2013); Young (2006); Ypi (2012 pp. 88–89).

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not consist in the violation of natural territorial claims but in an objectionable form of interaction, one that ‘denies its members equal and reciprocal terms of cooperation’ (Ypi 2013 p. 158). On a broadly Kantian view, substantive claims to land and territory are contingent on associative relations that allow all parties involved to determine the terms of interaction as equals, in the first place. On this basis, Ypi’s Kantian view describes the wrong of colonialism, persuasively I believe, as a wrong of association rather than a wrong of attachment; as an instance, that is to say, of the more general wrong of setting up political relations in a morally objectionable way. Finally, let us look at recently popular accounts of a ‘place-related’ morality. Typically taking their cue from frameworks that are more Lockean in inspiration than Kantian, a number of theorists have started to consider ways in which the spatial nature of human agency and political association co-determine what we owe to each other. Most influential perhaps is the idea of ‘occupancy rights’ (Moore 2015; Stilz 2013). These are rights to remain where our social, cultural, and economic practices take place, based on the fact that many of our life plans are ‘located’ in the sense of being intricately intertwined with certain spatial arrangements and geographic locations (Stilz 2013 p. 338). From these individual rights to occupy some place, its proponents then seek to derive collective claims over territory. Other authors have developed arguments that mere physical presence in a territory should ground a right to stay (Ochoa Espejo 2016) or wider rights to citizenship and democratic enfranchisement (Baubo¨ck 2015). Kant’s grounded cosmopolitanism also departs from ‘placerelated’ considerations of a sort, yet in a different way. It is less concerned with natural rights to claim or remain at this or that particular plot of land. Instead, Kant seeks to show that the very foundations of political community are placerelated, rather than being grounded, for instance, on pre-political affinities or mutual benefit. The need to create a shared juridical framework emerges from the simple fact that we ‘cannot avoid living side by side with all others’ (DoR 6:307). What we can derive from this are individual mobility rights rather than sedentary entitlements, or so I argued.

Reflexive global thinking A second core feature of Kant’s grounded cosmopolitanism, I would like to suggest, is its reflexivity. Crucial in this respect is the notion of a global standpoint as developed in Chapter 2 based on my analysis of the ‘disjunctive’ community of original common possession. The global standpoint is not a pre-established view from nowhere tasked to adjudicate individual and

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collective entitlements, but a reflexive, first-person standpoint through which we are duty-bound to interact with others with the aim of negotiating mutually justifiable terms of coexistence. I believe that this idea can make an important contribution to a question that cosmopolitanisms of all stripes traditionally struggle with: how to accommodate diversity and difference. I showed in Chapter 3 that Kant’s community of earth dwellers is not a homogenous community of individuals already united in shared principles or institutions, but it is made up of a plurality of perspectives in disjunctive relation. What unites the participants of the original community of possession is a particular standing they can claim against one another. They have this standing by virtue of their shared ability to find mutually agreed terms of coexistence despite their differences. Hence, Kant’s grounded cosmopolitanism does not force us to abstract from all particularities. Nor does it serve to justify imperial projects of any kinds. In contrast to earlier writings, the Doctrine of Right is geared to condemn colonial activity and to accommodate diverse forms of collective life and political association. Rather than advocating the global expansion of Western liberal principles or institutions by force, Kant’s grounded cosmopolitanism prescribes a form of cautious engagement with the unfamiliar. We can take this also as a timely reminder against the philosophical impatience that continues to characterise global justice debates—a reminder, that is, that even amidst the perceived urgency of eliminating perceived injustice, we may want to be wary of rushing to substantive principles of global reach and the requisite institutional arrangements. Moreover, I showed that the reflexivity of Kant’s global standpoint provides a different and critical perspective on our own existing institutions. In Chapter 5, I reconstructed the notion of a distinctly outward-looking state that binds itself (and its citizens) to rightful comportment towards other states and non-state peoples of its own accord. Reflecting from within on the contingency of the institutions of property, territory or sovereignty that we have inherited allows us to take ownership of them—it is one more way in which we conceive of ourselves as earth dwellers with the capacity to collectively structure and transform our shared social world. On this, Kant’s argument chimes with what Peter Niesen (2012) calls a ‘cosmopolitanism within one country’. Against the widespread tendency in global thinking to focus on overarching supranational collectivities, constitutions and governments (i.e., on ways of transcending the modern state), Niesen seeks to redirect our attention to the transformative potentials that inhere the state. By no longer restricting our theoretical horizon exclusively to models of a post-national order, he argues,

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we will be able to envision ways of transforming our world of states (and the pertinent ideals of membership and belonging) in a cosmopolitan direction. My reading of Kant chimes with this framework but departs from it in two ways. First, I showed that Kant is much more hesitant to open up states to outside influence than Niesen, who considers a range of measure from policies that extend membership and participatory rights to foreigners, to far-reaching rights of migration and movement. As already mentioned, the rather restrictive set of cosmopolitan entitlements put forward by Kant is related to the fact that his worries concerning cross-community interaction are simply different from ours: from his perspective, Western states surface mostly as would-be colonisers that travel the world with the intention of spreading their statist political arrangements, rather than being on the receiving end of migration flows. Second, I made the case for a complementary rather a contradictory relation between cosmopolitan efforts within and beyond the state. Kant’s grounded cosmopolitanism, I argued, provides us both with the ideal of a global institutional order and that of a cosmopolitically informed and, ultimately, transformed notion of statehood itself. Domestic and cosmopolitan progress intersect, given that in acknowledging obligations of international and cosmopolitan right, the state prepares the ground for bringing all interactions under law. Correspondingly, Kant’s global standpoint provides a critical standpoint on our own institutional arrangements as much as a normative standard for interactions with distant strangers. Hence, Kant can ultimately be read as challenging the distinction, deeply engrained in global justice theorising, between statism and cosmopolitanism. First generation cosmopolitans thought of state sovereignty effectively as an obstacle to the realisation of global justice, which they conceived of as demanding just relations between individuals globally. Recent internationalists, in contrast, returned to the morality of statehood. Their main idea—which, somewhat ironically, is often taken to be Kant-inspired—is that states are to be respected as sovereign agents by virtue of the moral coordination function they play in relation to their own subjects. Of course, in taking up the interpretive themes developed in this book and relating them to ongoing debates in political philosophy, we are bound to strike a balance between taking seriously the distinctiveness of Kant’s perspective (which, we must not forget, is always tied up with his wider philosophical commitments) and the prospects of making his insights fruitful for contemporary contexts and audiences that often start from a deep scepticism about his framework. The challenge is to aim at a better understanding of the originality of Kant’s philosophical outlook without ever ceasing to reflect on the question what we can take and what leave behind while still having a defensible position.

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Index accountability, moral 20, 26, 27 Achenwall, G. 40, 44, 45 acquired right 13, 15, 20, 47 see also original common possession acts of original acquisition 15 establishment of an act requirement 23, 24 land 15–16 vs. right to be somewhere 23, 24 shift from innate right to 19, 78 action(s) acting from duty alone 29 capacity for 13, 23, 27, 31 of legal relevance, defining 24 maxims for 26 moral accountability for 20, 26, 27 and motive powers 34 and wishes 31 agency see also embodied agents, humans as; juridical agency; moral agency agents with full legal status, recognition of 26 antagonist community of agents 60 corporeal agents see corporeal agents cosmopolitan, states as 136–147 cosmopolitan progress 143–147 political progress 136–143 external 32 Grotian agents 46 part-noumenal nature of agents 29 right of, in Grotius 47 Ajei, M. 75, 87, 88, 90 anarchy 138 Anderson, E. 161 Anthropology Lectures (Kant) 72, 112 anticolonialism of Kant 61, 83, 91, 107, 127, 129 see also colonialism contextualist predicament 84 cosmopolitan right 64, 67

global standpoint 68 juridical nature 68, 69–72, 76 Kant’s critique of European colonisation 70 and racial hierarchy/racism 68, 74 antinomies 14 anti-paternalism 81, 82 Applbaum, A. I. 79 appropriation individual, constraints on 47 innocent occupation 71 limits on 47 subsequent 44 unilateral 19, 45, 46, 48 Aquinas, T. (Saint) 40 Archimedean observer 63, 65 authority central 72, 137 coercive 14, 117, 120, 121 supra-state/superior coercive authority 112, 116 enforcing 109 exercise of 143 external 32 global 112 highest 142 institutional 117 interpersonal 119 juridical 114, 137 legislative 140 legitimate 141 moral 138 political 12, 78, 139 public 12, 78, 79, 85, 112, 116, 138, 139, 140, 141, 142 of reason 121 and rule of law 141 sovereign 104, 112, 140 sphere of 81 state 3, 78, 79, 86 unconditional 141

INDE X barbarism 138 Bauböck, R. 163 Benhabib, S. 2, 17, 61, 101 Bernasconi, R. 72, 73 body, position in space 55 consciousness of 56 Bohman, J. 121, 122 borders 48, 57, 65, 69, 129 closing 124 open, Kant’s rejection of 101 rightful relations across 65, 69, 161, 162 taking private rights across 81–83 Boxill, B. 73 Brandt, R. 12, 157 Brown, E. 65 Brown, G. 1 Buchanan, A. 3 Buchdahl, G. 137 Buckle, S. 40, 42 Byrd, S. 12, 17, 20, 27, 30, 44, 45, 48, 50, 61, 79, 102, 104, 106, 112, 123, 132 Caney, S. 1 capacity acting from duty alone 29 for choice and action 13, 23, 27, 31 to make judgements 50 for morality 26 to rationally pursue ends 27, 29 Carson, T. 113 Cassee, A. 105 categorical imperative 28, 137 Cavallar, G. 65 Caygill, H. 131 Chignell, A. 153, 154 choice(s) ability to make in general 27 acquisition of objects of our choice 15 capacity for 13, 23, 27, 31 claiming an unowned object of my choice as mine 13–15, 45, 77–78 form of relation of 31 freedom of 94 and moral concept of right 31 opposition to choice of another 21 original common possession 38 power of choice between two or more persons 31 and relation between persons 23

175

respect for choices of another 27 rights over choices of another (contract rights) 13 civil condition anticipating 19 entry into 6, 12, 14, 45, 77, 79, 83, 85, 90, 116, 138, 141 denial of colonisers’ right to force 7, 14, 67, 71, 76, 80, 81, 94 individuals compelled into 116 joint entrance 76, 78 need to enter/duty to enter 80, 108, 143 framework 142 membership of 89 normative structure 139 and pre-civil condition 142 and state of nature 80, 137 transition into 19 violations of private rights in 138 coercion 32, 116 authority 117, 120, 121 supra-state/superior coercive authority 112, 116 coercive enforcement 27 deed vs. coerced act 24 federation of states 112, 114, 115, 117 immunity from 115 institutions 58, 99, 105, 114, 115, 124, 133, 144, 164 international right 116 intrinsically coercive nature of right 94, 112 law 14, 77, 79, 108, 116 permission to use 33 power 112 publicity without 117–118 reciprocal 32, 33–34 right and authority to coerce 117 rights relations 94 sovereign power 112 state entrance 7, 14, 67, 76 states ‘outgrowing’ need for 114 supra-state/superior coercive authority 112 world government 1, 110, 112, 114, 118 co-existence on the earth see earth

176

INDE X

colonialism see also anticolonialism of Kant; cosmopolitan encounters; cosmopolitan right; European/Western colonisers; non-state peoples affirmative view of Kant 73 and commerce 124 and cosmopolitan encounters 67 in Doctrine of Right 164 hospitality right, cosmopolitan 88–89, 100 juridical critique as wrongful comportment 68 justification 61, 71 Kant’s critique of European colonisation 5, 70, 96, 98, 162 as a performative contradiction 87–90 and racism 72, 76 violating the juridical equality of the colonised 75 commerce 98, 123–124 commercium (global community) 129, 132, 136 see also community commercium/communio distinction 128, 129–135 as a condition of possibility for communio 132 critical perspective on boundaries 134 definition/concept 128, 130, 131 as disjunctive 123 meant to overcome community of communio 133 of original common possession 131 and particular man-made communities 131 of possible physical interaction 130 single 133 ‘thin’ conception of political community 134 common ownership see also original common ownership deriving private ownership from 44 Grotius on 39, 40–43, 47 justification of property rights and state boundaries 40 original 40, 44, 47, 58, 129 restricted right to use what is owned 40

common stock of resources and land 40, 42, 129 communio (rightful community of possession) commercium as a condition of possibility for 132 commercium/communio distinction 128, 129–135 communio primaeva (primitive possession in common) 16 inability to prove 43, 44 definition/concept 130, 131 exclusionary and determinate meaning 131 global community of commercium meant to overcome 133 ‘local community’ of objects 131 and natural law 44 presupposing community as commercium 132 ‘thick’ conception of political community 134 community active or passive 54 antagonistic, of agents 60 category of 54, 56 and disjunctive judgement 50–54 cosmopolitan co-participants in 135 cosmopolitan right 64 of individuals 59 disjunctive see disjunctive community dynamic cosmopolitan, co-participants in 135 of earth dwellers 3, 63 disjunctive community 5, 39, 128 global see global community juridical, of legal subject 5, 7 of land 16, 18, 20, 44, 61, 67 of material substance 59 membership of 41 moral 1, 4 negative 40, 44 of original common possession 45, 54, 98, 126, 164 disjunctive see under disjunctive community global 131

INDE X Kant’s original community of possession 45 political 4, 133, 163 positive, of ownership 44 common ownership 40 joint ownership 39, 40 of possible physical interaction 54, 61, 147 commercium (global community) 67, 130 disjunctive 67, 122 spatial 105 primitive 44 of proto-ownership 6, 19, 38, 39, 43, 45, 49, 63 of rational beings 65 and reciprocity 51 relations of 54, 55 rightful 3, 130 of shared humanity 4, 65 condition of possibility 91, 92 Conjectural Beginnings (Kant) 123 consequence-dependent moral psychology 153 Contest of the Faculties (Kant) 108 contextualism colonialism as a performative contradiction 87–90 contextualist predicament 77, 84–90, 91 property and the state 84–86 contract rights 94 see also original contract as rights over another’s choice 13 contractual exchange 15 corporeal agents 17, 20, 46 entering the world as 6, 11, 36, 49, 160 associated normative ambiguity 21 juridical relations among 36 plurality of 4, 20, 22, 36, 67 right to be somewhere 45 Corradetti, C. 112, 114, 120, 121 cosmopolitan agents, states as 136–147 cosmopolitan progress 143–147 political progress 136–143 cosmopolitan constitution 1, 99, 100, 108, 136 cosmopolitan encounters 67, 76, 77, 86, 87, 90, 92, 94 see also rationalism

177

vs. encounters between individuals in a state of nature 87 impossibility of equal participation 90 provisional rights and avoidable interaction 78, 80, 81 rationalist account 84 unfamiliarity 89, 95, 164 cosmopolitanism 1–9 grounded, of Kant see grounded cosmopolitanism (of Kant) moral 4, 65 within one country 147, 164 political 65, 105 as self-constraint 93–95 spatial 54, 61 cosmopolitan mobility 98, 100–107 cosmopolitan progress 129, 135, 143–147, 157 creation of institutions 144 and distant strangers 144, 145, 146, 147 and domestic progress 144, 145 and global standpoint 148 and peace 156 and political progress 143, 144 cosmopolitan public sphere 121–122 cosmopolitan right 5, 67 see also hospitality right, cosmopolitan anticolonial dimension 67 and anticolonialism 64 attention in literature 61 commercium/communio distinction 130 concept 11 in Doctrine of Right 11, 61, 62, 64, 70, 72, 74, 75 entitlement to roam the earth’s surface see roam the earth’s surface, entitlement to formal relation between plurality of diverse parties 120 freedom of movement under 105 from global standpoint 39, 90–95 humanitarian dimension 62, 70, 101, 106 institutional realisation 109 and international right 108, 109, 110, 118, 144, 146 Kant’s motivation in introducing 69 law and rights relations 119 ‘limiting’ 61, 100

178

INDE X

cosmopolitan right (Continued) material claims of parties 120 mobility 98, 99 and necessity right 48 negative or constraining dimension 62 normative perspective 94, 120, 162 to occupy a place on earth 47, 48 in Perpetual Peace 11, 61, 70, 74, 75, 98 private rights relations 83 property-mediated 90 provisional 119 public, realising of 118–126 remedial entitlements of 119 scope of application 70 subjects of 69 to traverse privately owned land 106 Critique of Pure Reason (CPR) 6, 34, 153 ‘Analogies’ section 52 and antinomies 14 disjunctive judgement and category of community 50–53 global standpoint 54 De Araujo, M. 42 deeds (actions of legal relevance) 24, 31 Deggau, H. - G. 49 De Jure Belli ac Pacis (DJBP) 40, 42 De Jure Praedae (DJP) 40, 42 democratic peace thesis 146 demoralisation principle 154 desire 31 despotism 140 Diderot, D. 100 disjunctive community communio (rightful community of possession) 128 in Critique of Pure Reason 50 of earth dwellers 5, 39, 128 of embodied agents 4 and global standpoint 50–58 of mutual exclusion 17, 19, 39, 45 of original common possession 6, 7, 45, 53, 54, 91, 92, 96, 98, 119, 120, 126, 127, 163 of physical beings 39 of possible physical interaction 67, 122 disjunctive judgement and category of community 50–54 concept subordination 51

yielding the category of ‘community’ 51 distant strangers 5, 70, 93, 122, 126 attempting contact with 67, 69, 94, 120 and cosmopolitan progress 144, 145, 146, 147 interactions with 6, 63, 64, 76, 92, 95, 107, 120, 146, 159, 165 as justification equals 39, 63, 93 respect for 6, 39 self-constraint vis-à-vis 7, 67, 128 shared earth dwellership 63 Doctrine of Right (DoR) agency-centred conception of progress 129 colonialism, condemning of 164 and commerce 123 commercium/communio distinction 132 conceptual issues 127 constitutive vs. regulative principles, norms or judgements 142 contractual relations 94, 95 cosmopolitan right in 11, 61, 62, 64, 70, 72, 74, 75 grounded cosmopolitanism within 3, 128 highest political good 155 and hospitality 70 interpretive accounts 17 Introduction to the Doctrine of Right 17, 22, 23, 30, 31, 32, 34, 37, 46, 53, 86, 112, 117 and nature 151 normative analysis, levels of 137, 138 original common possession 44, 45 private right in 4, 11, 13, 67 property argument 3, 11, 12, 160 public right 109, 110, 118 and social contract tradition 2 sovereignty argument 116 standard reading (right to be somewhere passage in § 13) 6, 11, 12–16, 17–19, 20, 22, 36, 50, 67 and cosmopolitan right 62, 67, 99 earth dwellership, argument from see earth evidence against 62, 63 and natural law 38, 39, 43, 46, 48, 57 proponents of 37, 39, 43, 45, 47, 48, 57, 62, 102, 106, 132

INDE X residual right to be somewhere 48 statist accounts 6, 160 teleology, absence of 126, 149, 158 textual material 12–16 from § 14 16 from § 15 16 three-part argument in 19 wider context 13 domestic progress 136, 144, 145 domestic right 93, 108, 109 Dörflinger, B. 73 Doyle, M. 146 earth see also Doctrine of Right (DoR) boundedness of 20 carving up 4, 6, 38, 63 circumference of 35 dwellership 3, 5 argument from 11, 16, 20–22, 36, 43, 49, 63, 67, 96 defining 20 disjunctive community of earth dwellers 5, 39, 128 earth dwellers as justificatory equals 59–64 existence inseparable from one’s place on earth 20 fates of earth dwellers 57 grounded cosmopolitanism of Kant based on 11, 16, 21 human co-existence seebelow original common possession see original common possession and property argument 132 and right to visit 67 and wrongful comportment see under European/Western colonisers human co-existence on 31, 164 commercium/communio distinction 134 concurrent 53, 128, 129, 135 essential simultaneity of 53 grounded cosmopolitanism (of Kant) 63 interdependence relation 38, 39, 49, 53 possession of a place on 16, 17, 19, 20, 21, 47

179

spherical surface of 3, 4, 161 claimants of parts 63 disjunctive community sharing 93 objectively contingent 80 and original common possession 38, 46, 53, 54, 56 particularisation of 18, 38, 62, 99 as possessed in common 92 and progress 134, 158 public right 108 and right to be somewhere 12, 25, 31, 34, 35, 36, 37 and right to visit 67, 93, 98 spatial constraints 92 travellers’ entitlement to roam see roam the earth’s surface, entitlement to see also original common possession Ebbinghaus, J. 138 Ebels-Duggan, K. 27, 153 Eberl, O. 69, 100, 108, 111, 121, 146, 149 Ellis, E. 9, 114, 137, 143, 149 embodied agents, humans as 20, 23, 65, 129 disjunctive community 4, 38 entering the world as corporeal agents 6, 11, 21, 36, 49, 160 whether an act/deed 24 and will 21 epistemic humility 82 equality, juridical see juridical equality ethics 26, 137 see also morality and highest good 137, 152 and moral salvation 157 and peace 157 and right 1, 119, 157 European/Western colonisers 83, 92, 100, 124 see also anticolonialism; colonialism; cosmopolitan right; non-state peoples; right to visit (cosmopolitan) alleged superiority/place on hierarchy 72, 73 colonial practice 62, 70, 100 conduct/comportment towards nonstate peoples 7, 67, 68, 71, 74, 88

180

INDE X

European/Western colonisers (Continued) encounters with non-state peoples see cosmopolitan encounters hospitality right 88–89, 100 intra-European colonial conflict/rivalry 74, 75 obligation to respect indigenous people’s first possession of land 78 prohibition of right to force non-state peoples to enter civil condition 7, 14, 67, 71, 76, 80, 81, 94 property-based model of the state 129 Whites/White men 72, 73 exchange 5, 7 commercial 120 communicative 123 contractual 15 cosmopolitan 127 cultural 5, 64, 67, 99, 123, 126 of deeds 94 economic 5, 64, 67, 99, 123, 126 intellectual 5, 99, 126 offers for exchange and interaction 7, 67, 76, 96, 100, 147, 159 political 5, 64, 67, 99, 123, 126 property 95 experiential context 85, 86, 88, 89, 92 shared, absence of 90 external objects, possessing 13–14 extra-terrestrials 20 Eze, E. 73 fair trade vs. free trade 123 faith in God 158 good faith 89, 95 items of 154 in a naturalised deity 158 in nature 152, 158 fate, vs. providence 150 Fleischacker, S. 123 Flikschuh, K. 2, 12, 26, 27, 32, 57, 60, 68, 75, 79, 84–90, 92, 115, 119, 141 Forrester, K. 8 Forst, R. 161 Forster, G. 73 foundational reading, innate right 27–30, 36 see also relational reading, innate right

capacity to rationally set ends 27, 29 compared with relational reading 29 material right to something ‘external’ in time and space 30 proponents of 28, 29, 30, 36 Fourie, C. 161 freedom of choice 94 innate right to 23, 27 and nature 149 outer 23, 25, 69 political 108 universal law 31 free trade vs. fair trade 123 Friedman, M. L. 137 Ganesh, A. 105 Gemeinschaft 131 general/general united will 14, 18, 19, 45, 106, 141 geometrical space 33 Germany, refugee crises (2015) 101 global citizenship 105 global community see commercium (global community) global legal order 105 global mobility 98, 99, 104, 106, 107, 122, 123 global public 104, 105 global standpoint 4, 65, 129, 164, 165 acting from 39 and anticolonialism 68 commercium/communio distinction 135 and cosmopolitan progress 148 cosmopolitan right from 39, 90–95 and disjunctive community 54–58 juridical idea 131 and particularisation 39, 129 and public cosmopolitan right 119 reflexivity 163 regressing to 91–93 respecting distant strangers as justificatory equals 39 shift to public 119 global/world justice 8, 58, 75, 157 see also injustice; justice debates 1, 3, 164 disputes 8, 65 practice-based accounts 161

INDE X recent literature 58 theorising 58, 160, 165 Goldman, L. 156 good reputation, right to 30 Gregor, M. 72 Grotius, H. 38, 105 on common ownership 40–43 positive community of 39, 40, 44 compared with Kant 38, 39, 43, 57 consensus of humanity notion, rejected by Kant 45 De Jure Belli ac Pacis (DJBP) 40, 42 De Jure Praedae (DJP) 40, 42 on natural law 38, 43, 129 on necessity see necessity, right of on needs see needs-based framework, of Grotius a priori and a posteriori methodology 40 on private property 41–42 grounded cosmopolitanism (of Kant) 4–6, 11, 96 see also cosmopolitan encounters; cosmopolitanism; cosmopolitan right; state(s) based on earth dwellership 11, 16, 21, 63 concerned with quality of human interactions 64 and cosmopolitan mobility 107 disjunctive community depicted by 39 in Doctrine of Right 128 engagement with the unfamiliar 89, 95, 164 and global mobility rights 98 and natural law 161 and place-related considerations 163 and private right 91 and radically reformed states 128 and self-constraint 7, 67, 94, 97, 146 spatial perspective 128 and the state 165 temporal perspective 128 transformation of existing states 135 and transformation of the state 159 Groundwork 73 ‘Formula of Humanity’ 28 Guyer, P. 51, 113 Habermas, J. 1, 112 Hanna, R. 137

181

Hasan, R. 19, 47 Held, D. 1 Herb, K. 36 Hill, T. 73 Hirsch, P. -A. 32 history, eschatological philosophy of 151 Hobbes, T. 3, 40 Hodgson, L. -P. 2, 27, 112 Höffe, O. 1, 31, 36, 65, 112, 123 hope 148–158 Horn, C. 36, 119, 125 hospitality right, cosmopolitan 61, 62, 70, 75, 83 contextualist predicament 87, 88, 89 in Doctrine of Right 70 in Perpetual Peace 61 violations of hospitality 121 of Western settlers 88–89, 100 Hruschka, J. 12, 17, 27, 30, 44, 45, 48, 50, 61, 79, 102, 104, 106, 112, 123, 132 human finitude 28 human intellect, Kant on 50 humanitarian dimension of cosmopolitan right 62, 70 humanity capacity to rationally set ends 27, 29 and innate right (rational nature) 26, 28 shared see shared humanity human nature 63, 150, 151 common ownership 40, 43 Idea for a Universal History (Kant) 84, 112, 123 immovable property 42 Indian peoples 73 inequality 74 injustice 61, 111, 120, 121, 122, 124, 133, 139, 140, 142, 143 see also global/world justice; justice colonial 155 historical 119 perceived 164 ‘stain of injustice’ 62, 70, 71, 75 innate right capacity for choice and action 13, 23 constructing in a priori space 31–36 and external right 30 foundational reading 27–30, 36 to freedom 23, 27

182

INDE X

innate right (Continued) interpretation as a claim to juridical equality 26 in Introduction to DoR 17, 22, 23, 30, 31, 32, 34, 37 and notion of humanity 26, 28 relational reading 26–27 right to be somewhere contained in 11, 22–36, 38 shift to acquired right 19, 78 spatial instantiation 17 institutions 57, 99, 135, 139, 159 authoritative 138 coercive 58, 99, 105, 124, 133, 164 cosmopolitan progress 144 public international right 114, 115 contingent 126 cosmopolitan 1, 4, 119 creating/establishing 7, 135, 136, 144 established/existing 146, 157, 164 reform 143, 144, 146 human 133 institutional closure 117 legal 117 man-made 131 mediating 114 membership of 92 new 122 non-coercive 117, 133, 145 perfecting 7, 137, 145, 157 political 7, 123, 128, 157 public 120, 138, 140, 157 shared 60, 64, 89, 93, 94, 95, 128, 144, 164 social 58 unconditionality 84 unjust 143 intelligible possession 13, 14, 23, 77 interdependence relation 3, 39, 135 of possible physical interaction 49, 53, 58, 98, 126, 128 right to be somewhere 21, 22 international right public 110–118 publicity without coercion 117–118 self-constraint in 111–116 interpretive accounts of Doctrine of Right 17

ius ad bellum (regulating resort to armed force) 110, 111 ius gentium (right of nations) 108 ius in bello (regulating conduct in war) 110 ius post bellum (regulating the behaviour of the victorious party after a war) 110, 111 James, A. 161 joint ownership 39, 40, 43 judgement, fallibility of 28 juridical agency, mobility as 98–127 juridical anticolonialism (of Kant) 69–72 juridical authority 114, 137 juridical equality 37, 38, 75 principle in Universal Principle of Right 77 relational reading, innate right 26 juridical relation among corporeal agents 36, 38 cosmopolitan encounters 90 earth dwellership 20, 49 form 32, 156 not property-mediated 68 a priori construction 161 justice 74, 140, 144, 155 see also global/world justice; injustice beyond the state 2 commercium/communio distinction 133 concept of 161 distributive 4 domestic 157, 161 grounds 58 and legitimate authority 141 non-relational ground 58 perfect 141 proto-constructivism, of Kant 1 public condition of 19 relational grounds of 58 standard of 139 justificatory equals, earth dwellers as 59–64, 67, 93 interdependence relation of 38 respecting distant strangers as 39 Kant, I. compared with Grotius 38, 39, 43, 57

INDE X Copernican turn 55 ethics of 26 grounded cosmopolitanism of see grounded cosmopolitanism (of Kant) and Hegel 149 juridical anticolonialism of see anticolonialism of Kant legacy of 160–165 mature political philosophy 11, 12, 69 moral universalism of 101 and natural law 38 non-foundationalism 28, 85 non-instrumentalism 28 on original common possession 43–49 practical philosophy 36, 65 public right system 107–110 racial views 72–76 theoretical philosophy 39writings see Anthropology Lectures (Kant); Conjectural Beginnings (Kant); Contest of the Faculties (Kant); Critique of Pure Reason (CPR); Doctrine of Right (DoR); Groundwork; Idea for a Universal History (Kant); Metaphysics of Morals (Kant); ‘On the Use of Teleological Principles in Philosophy’ (Kant); Physical Geography (Kant); Prolegomena; ‘Theory and Practice’ (Kant); ‘What is Enlightenment?’ (Kant); What is Orientation in Thinking Kant and the Law of War (Ripstein) 82 Kersting, W. 19, 31 ‘kingdom of ends,’ global 4, 39, 65 Kleingeld, P. 2, 17, 48, 65, 74, 76, 101, 103, 106, 112, 114 Korsgaard, C. M. 29, 85, 141 Kühl, K. 15 land see also property; property rights acquisition of 15–16 license to acquire under original common possession 18, 19, 91 privatisation process 18 common stock 40, 42, 129 community of 16, 18, 20, 44, 61, 67 exclusive claims to 99

183

as habitable ground 23 mere physical possession of 23 particularisation 39, 104, 132 seizure, in earth dwellership argument 20 substantive claims to 64 Langton, R. 29 Larrimore, M. 72, 74 law-governed relations 34 lawless condition 82, 110, 138, 142, 144 international state 117 self-constraint in international right 116 laws of nature 40, 118, 158 see also state of nature Lindstedt, D. 156 Locke, J. 3, 71, 77 Longuenesse, B. 39, 50, 51, 54, 56, 60 Ludwig, B. 2, 3, 17, 26, 31, 32, 36, 157 Lutz-Bachmann, M. 1, 112 McCarthy, T. 74 mathematical space 34 Maus, I. 1 mechanical law of action and reaction, and general construction of rights relations 53 Medicus, F. 95 Menke, C. 133, 134 Messina, J. P. 18 Metaphysics of Morals (Kant) 2 General Introduction 24 methodology 8–9 Mills, C. 73 Milstein, B. 50, 56, 60, 63, 131, 134–135 mobility as agency 162 cosmopolitan 98, 100–107 global 98, 99, 104, 106, 107, 122, 123 as juridical agency 98–127 right of 69 without teleology 125–126 Moggach, D. 33 Montaigne 74 Montesquieu 140 Moore, M. 162, 163 moral agency 21 moral community 1, 4 moral concept of right 31, 32, 33, 34, 58 modelled in pure intuition a priori 34

184

INDE X

morality see also moral agency; moral community capacity of human beings for 26 general concept, applying 31 moral cosmopolitanism 4, 65 moral justification of state authority 3 a priori and formal 26 moral personality 24, 115, 116, 117 Morgan, D. 121 Moyn, S. 8 Muthu, S. 2, 74, 80, 81, 84, 94 mutual exclusion, disjunctive community of 17, 19, 39, 45 Nagel, T. 143 nations/nation-states 69, 72 see also state(s) Native Americans 71, 72, 73 natural law 38 Grotius on 38, 43, 129 and grounded cosmopolitanism 161 Kant departing from tradition of 49, 58 and particularisation 57 and standard reading of DoR 38, 39, 43, 46, 48, 57 and subjects of cosmopolitan right 119 natural right 31, 39, 40, 58, 75 nature see also human nature; laws of nature; state of nature in Doctrine of Right 151 faith in 152, 158 and freedom 149 juridical 68, 69–72, 76 laws of 40, 118, 158 rational 26, 28 Nazi Germany 141 necessity of interaction 80 of mechanical laws 34 right of, in Grotius 42, 47, 48, 102 and cosmopolitan right 48 subjective 85 needs-based framework, of Grotius 42, 48, 58, 63, 65, 129, 133 and original common possession 46–47 negative community 40, 44

Niesen, P. 2, 25, 27, 30, 61, 69, 84, 100, 102, 103, 105, 106, 108, 111, 119, 120, 121, 124, 146, 147, 149, 164, 165 non-refoulement principle 101 non-state peoples 67, 96, 128, 164 see also anticolonialism; colonialism; cosmopolitan encounters; cosmopolitan right; European/Western colonisers; Native Americans; right to visit (cosmopolitan) binding individuals in their interactions with 128 collectives 69, 83 colonisers’ comportment towards 7, 67, 68, 71, 74, 88 contextualist predicament 77, 84–90 and cosmopolitanism as self-constraint 94, 95 denial of colonisers’ right to force into civil condition 7, 14, 67, 71, 76, 80, 81, 94 global standpoint 92, 93 interaction with on a contractual basis 94, 124 and Kant’s juridical anticolonialism 69, 71, 72 possible form of political association 72 private rights 81, 82, 83 provisional rights and avoidable interaction 78, 80 rationalist predicament 76–83 noumenal nature of human beings 26, 39 part-noumenal, capacity to act from duty alone 29 obligation, placing others under 13, 14 occupation rights 47, 48, 71, 78, 163 Ochoa Espejo, P. 163 Olsthoorn, J. 58 omnilateral (general united) will 14, 18, 19 omnilateral rights 109 O’Neill, O. 85, 121, 155 On Global Justice (Risse) 58 ‘On the Use of Teleological Principles in Philosophy’ (Kant) 73 orientation in thinking 55 original acquisition problem 13

INDE X original common ownership 40, 44, 58, 129 see also common ownership; Grotius, H. overcoming through particularisation process 47 original common possession 15, 18, 37, 38–65, 129 see also earth; ownership; possession; property rights as a community of proto-ownership 45 disjunctive community of 6, 7, 45, 53, 54, 92, 96, 98, 119, 120, 126, 127, 163 disjunctive nature of 39, 54 as a distributive principle 48, 107 and earth surface 38, 46, 53, 54, 56 entitlement to place object somewhere 15, 17 global community of see commercium (global community) global connectedness 54 Grotius on common ownership 40–43, 44 Kant on 11, 43–49 land 15 license provided to obtain 18, 19, 91 license for earth to be divided 46 membership in 67 and natural law see natural law and particularisation 45, 47, 91 relations of humans co-inhabiting a finite space 38, 39, 49 relation to the external world 43, 49 and right to be somewhere 11, 17, 18, 38–65 shift from innate to acquired right 19, 78 and taking control 19 transition to particularisation of resources and territories 47 unilateral acquisition based on 92 vindication of unilateral appropriation 14, 19 original contract 139, 140, 141, 142, 155 function 140 and perfect republic 143 outer freedom see also freedom; right to be somewhere limited by law 69, 108, 109

185

principle 23, 69, 109 right to be somewhere consistent with 23, 25 ownership see also acquired right; common ownership; possession; property; property rights; proto-ownership, community of; status rights and acquisition 15 actual physical control 13 common 17 of external objects 13–14 Grotian relation of 49 joint 39, 40, 43 nobody owns anything vantage point 44 positive community of 39, 40, 44 rights ‘res nullius’ 14 without being in possession see intelligible possession Pagden, A. 100 Pallikkathayil, J. 27, 28 particularisation claims 45 and commercium/communio distinction 132 of earth’s surface 18, 38, 62, 63, 99 and global standpoint 39, 129 of land/land parcels 39, 104, 132 and natural law 57 and original common possession 45, 47, 91 process 45, 160 right to be somewhere 18, 48, 102 peace 6, 75, 113, 114 see also Perpetual Peace; war, laws of conditions, establishing 108, 110 democratic peace thesis 146 and ethics 157 in Europe 74 future of 111, 118 lasting 111, 147 lawful 5, 7, 98, 99, 107, 118, 120, 121, 127, 146 lawlike peaceful balance 74 peaceful relations among parts of the world 95, 98, 100, 109, 118 perpetual 7, 118, 159 hope for 148–158

186

INDE X

peace (Continued) progress towards 74 universal 147 and war 111 working towards 118 peremptory rights 14 permissive law 14 Perpetual Peace 35, 148–158 and commerce 123, 124 cosmopolitan commitments 2 and cosmopolitan progress 146 cosmopolitan right in 11, 61, 70, 74, 75, 98 First Supplement 125 ‘guarantee’ passage 148, 150, 152 preparatory notes 47, 61, 70, 116 process-centred conception of progress in 129 public right/public cosmopolitan right 108, 118 sailors seeking refuge in a foreign harbour example 47, 61 self-constraint in international right 113 shipwrecked person swept ashore example 47, 61 sovereignty argument 116 person, right to 13 Physical Geography (Kant) 73 physical interaction, possible community of 54, 61, 147 commercium (global community) 67, 130 disjunctive 67, 122 global 130 spatial 105 interdependence relation of 3, 39, 49, 53, 58, 98, 126, 128 right to be somewhere 21, 22 original common possession 39 and unavoidable physical interaction 80 Pinheiro Walla, A. 16, 47, 70 Pinzani, A. 115 political authority 12, 78, 139 political progress 128, 136–143 constitutive vs. regulative principles, norms or judgements 137–143 in Doctrine of Right 142 Kant’s prohibition of resistance and revolution 141, 142

legal order 141 original contract 139, 140, 141, 142 violations of the constitutive principle 141 and cosmopolitan progress 143, 144 Kant’s bifurcated notion of 145 normative analysis in DoR 137, 138 within the state 137 state of nature and civil condition 137 political representation of citizens 108 positive community of ownership 44 see also common ownership; community; ownership common ownership 40 joint ownership 39, 40 as a private community 44 possession see also property coercive law with regard to 14 ‘in common’ 17 common ownership 17 of earth’s surface 16, 17, 19, 20 empirical 13 intelligible 13, 14, 23, 77 original common possession see original common possession physical 23 of a place on earth 16, 17, 19, 20, 21 ‘something external’ 13–14 of a will 117 power(s) arbitrary, of others 138 of choice 31 coercive 112 concentration of 143 exercise of 138, 146 guarantor 149 moral 26 motive powers 34 naval 74 normative 141 organised forms 138 personal 29 physical 14, 77 political/power politics 112, 114, 138 separation of powers 108, 140 sovereign 112 state 2, 111, 114

INDE X practical reason 83, 149, 153 see also Critique of Pure Reason (CPR); rationalism; reason contextualism 85 morally practical reason 110, 158 and original common possession 45 postulate of 16, 18, 45 principles 26, 28 a priori demands of 157 pure 114 reconciliation of theoretical and practical 149, 151 and right to be somewhere 14, 18, 26, 28, 29 private property 22, 38, 46, 58, 105, 161 Grotius on 41–42 individual 84, 103 legitimate interference with 105 where arising 42 private right(s) acquisition of objects of our choice 15 in Doctrine of Right 4, 11, 13, 67 and grounded cosmopolitanism 91 limits on appropriation 47 property argument 16 rationalism 77 ‘something external,’ possessing 13–14 taking across borders 81–83 three-part argument in DoR 19 productive resistance 74 progress 128–159 commercium/communio distinction 128, 129–135 cosmopolitan 129, 135, 143–147 domestic 136, 144, 145 and earth surface 134, 158 in history 158 political 128, 136–143 process-centred (teleological) 129 without teleology 148–152 Prolegomena 34 promises 35 property see also property rights acquisition, problematic act 79 contextualism about 84–86 in Doctrine of Right 11, 12

187

duty of state entrance, property-based 11, 12, 14, 77 and argument from earth dwellership 67 coercion 7, 14, 67, 76 and cosmopolitan right 68 unconditionality and universality of requirement 19 earth dwellership and property argument 132 legitimate 42 pre-political claims to 12 private see private property property-based model of the state 129 provisional and conclusive 79 rational history 40 rationalist account 77–78, 79, 81, 88, 91 recognition of validity 42 property rights see also property ability to determine location of object 15 acknowledgement by others of our right to own 13, 14 claiming an unowned object of my choice as mine 13–15, 45, 77–78 concept and practice 86 duty to respect claims of others 14 exclusive 47 Grotius on 42 justification by Grotius, under common ownership 40, 41 land 15–16 moral vindication of 79 no obligation to impose obligations on others 14 provisional 82 publicly enforced 86 state vindication of reciprocally raised property claims 14, 19 and use-rights 41 proto-constructivism, of Kant 1 proto-ownership, community of 6, 19 original common possession 38, 39, 43, 45, 49, 63 providence, vs. fate 150 provisional politics 143

188

INDE X

provisional rights and avoidable interaction 78–81 and civil condition 19 land ownership 19 and peremptory rights 14 property 47 proximity principle 80 public authority 12, 78, 79, 85, 112, 116, 138, 139, 140, 141, 142 public cosmopolitan right 118–126 cosmopolitan public sphere 121–122 fair trade vs. free trade 123 mobility without teleology 125–126 publicity, without coercion 117–118 public law(s) 14, 116, 138, 159 coercive 77 compliance with 157 conformity with right 140 making of 86 tripartite system 82 universally binding 138 valid 138 public right(s) body of literature on 12 in Doctrine of Right 109 domains of 146 international 110–118 publicity without coercion 117–118 self-constraint in 111–116 international and cosmopolitan right as part of 110 Kant’s bifurcated notion of 69 Kant’s threefold system of 107–110 redistributive constraints 47 and rights relations across borders 69 right to visit 69, 99, 107–110–118 state and international law 69 threefold system 69 Pufendorf, S. 40, 44 race and racism see also anticolonialism of Kant; colonialism ‘attitudinal’ racism 75 and colonialism 76 Kant’s changes of mind on 74 physiological theory 74 racial hierarchy 74 racism and anticolonialism 72–76

universalistic moral theory and racism 73 rationalism see also practical reason; reason capacity to set one’s own ends 27, 29 Leibnisean 51 property and the state, rationalist account of 77–78, 79, 81, 88, 91 rationalist predicament 76–83 and contextualist predicament 84 necessity of interaction 80 private rights, taking across borders 81–83 property and the state 77–78, 81 provisional rights and avoidable interaction 78–81 rational nature (humanity) 26, 28 Rawls, J. 1 reading foundational, innate right 27–30 relational, innate right 26–27 standard see under Doctrine of Right (DoR) teleological 126 reason 31, 42, 44, 46, 79, 150 see also practical reason; rationalism authority of 121 conflict with itself 77 ideas of 137, 141, 156 mere reason, limits of 145 and need 63 orientation in thinking 55 private vs. public reasoning 121 and progress 148 public use of 121, 122 theoretical, reconciling with practical 149, 151 topography 55 Reath, A. 1 reciprocity 26, 51 coercion 32, 33–34 in Critique of Pure Reason 34 and general concept of right 134 imputable acts 31 state vindication of reciprocally raised property claims 14, 19 recursive justification method (of Kant) 85 reflexivity/reflexive global thinking 56, 163–165

INDE X Reinhardt, K. 61, 70, 101, 104, 105, 124, 125 relational global thinking 161–163 relational reading, innate right 26–27 see also foundational reading, innate right compared with foundational reading 29 juridical equality 26 proponents of 28, 29 remedial right 47, 48, 102, 104 republicanism 74 constitution 1, 157 and state 146, 152 system of government 108, 137, 140, 141 right(s) see also right to be somewhere acquired right 13 of citizens 141 constructing in a priori space 31–36 contract rights 13 cosmopolitan see cosmopolitan right domestic 93, 108, 109 and ethics 1, 119, 157 external objects included under notion of 30, 43 general concept 108, 134 general construction of rights relations 53 to a good reputation 30 individualist notion of 133 innate see innate right ‘inner outer rights duty’ 26 international 111–116 moral concept 31, 32, 33, 34 natural 31, 39, 40 need considerations excluded from domain of 46 omnilateral rights 109 over objects of my choice see property rights peremptory 14 positive 31 private see private rights provisional 14, 78–81 public see public right relational aspect 27 remedial 47, 48, 102, 104 status rights 13

189

substantive 27 time and space in concept of 32 universal 32, 33, 65 to visit see right to visit (cosmopolitan) right to be somewhere 11–37 see also Doctrine of Right (DoR) vs. acquired right 23, 24 classification of type of right 23 conditions attached to 21 consistent with outer freedom principle 23, 25 as corporeal agents 45 and cosmopolitan right 62 determining what it is a right to 25 disjunctive judgement 50–58 in Doctrine of Right 11 preparatory notes 16, 20, 49, 50 earth dwellership see earth and earth surface 12, 25 innate right 11, 13, 22–36, 38 limited to physical possession 23 lingering after appropriation 18, 48 and need 48 and original common possession 11, 17, 18, 38–65 particularisation 18, 48, 102 and residence 12 standard reading, in DoR (§ 13) see under Doctrine of Right (DoR) textual inventory 12–16 right to visit (cosmopolitan) 5, 67–97 see also anticolonialism of Kant; colonialism; cosmopolitan right; mobility; roam the earth’s surface, entitlement to anticolonialism juridical 69–72 and racism 72–76 constraining vs. permissive aspect 70 contextualist predicament 77, 84–90 limits of travellers’ rights 67 and mobility as juridical agency 98–127 mobility right 69 not a right to settle or civilize 120 and original common possession membership 67 public right 69, 99, 107–110–118 rationalist predicament 76–83 relations between distant strangers 120

190

INDE X

right to visit (cosmopolitan) (Continued) and right to be a guest 61 Riley, P. 139, 156 Ripstein, A. 2, 12, 17, 27, 30, 44, 50, 68, 69, 81–83, 84, 90, 105, 106, 111, 115, 117, 119, 124, 141 Kant and the Law of War 82 Risse, M. 58, 65, 161 roam the earth’s surface, entitlement to 5, 7, 48, 67, 70, 98, 100, 127 see also cosmopolitan right; earth; right to visit (cosmopolitan) cosmopolitan mobility 105, 107 mobility without teleology 125, 126 Rosen, A. 139 Rossi, P. 156 Rostbøll, C. F. 112 rule of law 106, 137, 138, 141 Salter, J. 40, 42, 44 Sangiovanni, A. 3 Scheffler, S. 161 Scheuerman, W. E. 113 Schlatter, R. 40 Schopenhauer, A. 2 Schuppert, F. 161 self-consciousness 56 self-constraint cosmopolitanism as 93–95 and distant strangers 7, 67, 128 and grounded cosmopolitanism 7, 67, 94, 97, 146 in international right 111–116 contradiction in conception argument 113 feasibility argument 112, 114 normative argument 113 provisional argument 114, 115 sovereignty argument 114, 115, 116 universal monarchy 113 voluntary federation see voluntary federation juridical 99, 111, 118, 120, 128 and non-state peoples 94, 95 and peace-building 118 self-determination 14 self-preservation 40, 43, 47 separation of powers 108, 140 shared humanity

community of 4, 65 earth dwellership 60 foundational reading, innate right 29 ‘kingdom of ends’ qua shared humanity 4, 39, 65 Shell, S. M. 51 simple life 41 Singer, P. 122 slavery 73 sovereign authority 104, 112, 140 space bounded 32, 39, 40 in concept of right 32 form of juridical relations 32 geometrical 33 juridical 33 material right to something ‘external’ in 30 mathematical 34 physical 34 a priori 31–36 unbounded 34 sphere of authority 81 spherical surface of the earth see earth standard reading of DoR see under Doctrine of Right (DoR) standpoint on the whole 39, 56 see also global standpoint epistemic idea 131 state of nature 79, 138, 143 among states 110, 111 and civil condition 80, 137 global 97 interactions between private individuals 82, 83, 87, 112, 116 international 114 perpetuating 111 and war 110 state(s) authority of 3, 78, 79, 86 boundaries, justification by Grotius 40 claiming control over territories 18 compliance with laws of war 146 contextualism about 84–86 cosmopolitan agents 136–147 cosmopolitically transformed 147

INDE X duty of state entrance, property-based 11, 12, 14, 77 and argument from earth dwellership 67 coercion 7, 14, 67, 76 contextualist predicament 84, 85, 86, 87 and cosmopolitan right 68 unconditionality and universality of requirement 19 and grounded cosmopolitanism 135 instrumental and non-instrumental justification of authority 79 justice beyond 2 lawless condition 145 moral justification for modern statehood 11 moral personality 24, 115, 116, 117 political progress within 137 power of 2, 111, 114 property-based model 129 radically reformed 128 rationalist account 77–78, 79, 81, 88, 91 republican 146, 152 vindication of reciprocally raised property claims 14, 19 voluntary federation, advocated by Kant see voluntary federation statism 3, 8, 91, 165 statist backlash 2, 3, 11 status rights 13 Stevenson, L. 154 Stilz, A. 2, 68, 71, 78–81, 82, 90 Ripstein compared 81 substantive right 27 Sussman, D. 29 Szendy, P. 20 Taylor, R. 156, 158 teleology absence of, in Doctrine of Right 126, 149, 158 language 151 mobility without 125–126 process-centred (teleological) progress 129 progress without 148–152 territory

191

national 103 territorial boundaries 40, 42, 43 see also space; state(s)and formation of states42 statist control 103 territorial distinctness of the colonised 64 territorial jurisdiction 103 territorial rights 41, 42 exclusive 47 ‘Theory and Practice’ (Kant) 69 thing, right to 13 Thompson, K. 123 Tierney, B. 134 Timmermann, J. 29 trade relations 123–124 Tuck, R. 42 Ulas¸, L. 113 ‘Ulpian formulae’ 26 unavoidability clause 80 unilateral will 14 unintended chain of events 24 universalising rule 32 universal law of right 32, 33 unjust enemy 111 use-right, universal 40, 41 transition from mere use to legitimate property 42 Valdez, I. 74, 76, 94 Valentini, L. 79 value-conferring status and setting of ends 29 Vanhaute, L. 48, 94, 102, 123 Varden, H. 30 visit, right to see right to visit (cosmopolitan) V ölker/V ölkerschaften distinction 72 voluntary federation advocated by Kant 108, 110, 111, 113 compliance with 146 failure to submit to 117 vs. formation of a state 117 institutional ‘closure,’ providing 117 joining 110, 118, 146, 155 noncoercive 110, 114, 115 public condition of right among nations 117

192

INDE X

voluntary federation (Continued) publicity without coercion 117 verdicts 118 Waldron, J. 80 Waligore, T. 124 Wallimann-Helmer, I. 161 war, laws of 110, 111, 117, 146 Watkins, E. 51, 150 Weinrib, J. 137, 138, 139, 142, 143, 144 Western emissaries see European/Western colonisers ‘What is Enlightenment?’ (Kant) 121 What is Orientation in Thinking 55 Willaschek, M. 62, 119, 150, 152, 154 Williams, H. 62, 119, 124, 152, 154 will(s) artificial 117

conflicting private wills 116 entering the world with 21 general/general united (omnilateral) 14, 18, 19, 45, 141 Kantian relation of wills 49 possession of 117 unilateral 14, 79 Wollner, G. 8 Wood, A. 9, 29, 95, 119 world citizens 4 world government, coercive form 1, 110, 112, 114, 118 Young, I. M. 161 Yovel, Y. 149 Ypi, L. 64, 162 Zylberman, A. 26, 28