Sunday, 27 September 2009

Cosmopolitan Right (II)

The second part of the discussion of Kant's 3rd definitive article opens with an account of the inhospitable way commercial states have operated in terms of their visits to other countries. The behaviour that is here condemned is the way in which, when countries were visited that were composed only of peoples who existed in pre-state conditions (such as American Indians and Africans) the countries in question were treated in such a way that the inhabitants of them were taken as possessed of no status. The further example of the operations of the East India Company are also cited in this regard.

In response to these colonialist actions Kant mentions that the inhabitants of China and Japan had good reason to restrict the activities of Europeans allowing them only access but not entry with the Japanese allowing only the Dutch trading rights and keeping them entirely out of community with the natives. What is revealed by these comments, is how colonialism was grounded, in fact, on denial of a general community with those colonised where community should be understood in Gerry Cohen's sense of "justificatory community", i.e. a community composed of those who give and accept reasons against a common normative background.

The opening of this point about community gives a sense of what might be meant by "hospitality". If we take hospitality to involve some sense of justificatory community and hostility to indicate denial of any such then the general understanding of cosmopolitan right as based on conditions of universal hospitality would be indicative of cosmopolitan right as a specification of the formula of humanity from Kant's moral theory.

What further supports this reading of cosmopolitan right are Kant's concluding remarks concerning this 3rd definitive article. Here Kant states that the idea of cosmopolitan right is a "supplement to the unwritten code of the right of a state and the right of nations necessary for the sake of any public rights of human beings and so for perpetual peace" (Ak. 8: 360). Further Kant adds that it is only under this condition (of the third article) that we can flatter ourselves that we are constantly approaching perpetual peace.

These remarks indicate that the 3rd definitive article has a special place in Kant's discussion. Two curious things arise here. Firstly, in describing this third article as a supplement to the "unwritten code" Kant makes reference to the idea of supplement twice over. The "unwritten code" itself is presumably something over and above written codes and for it to have a supplement suggests a twofold addition to the written code. Secondly, if this condition is necessary for the sake of public rights of human beings the question arises as to the sense of its necessity. What makes it so necessary? Is it that only by means of it can a general approach be made towards overcoming the divisions between peoples? Or that what it guarantees (trade above all) is what would do this?


Timothy said...

I agree with you on the community aspect, and very much like how you put it here. Kant says native inhabitants were treated as if they did not count, and their lands we viewed as belonging to no one.

However, I am not sure about the term "justificatory community" as you describe it. What is the common basis?

Further, why and how must the natives be counted? Did the Europeans see the land as empty because they did not count the native inhabitants, or (which is a stronger claim) is Kant saying the Europeans were not counting the native inhabitants because they viewed the land as empty.

Additionally, Kant allows hostile treatment in the state of nature. So we cannot just imagine Kant forbids hostility without exception against all humans. So what is the basis of the community?

One possibility: It seems it has to do with the fact that we are, in this limited globe, in a community of possible physical interaction. That means we can physically approach each other (this is physically possible by the surface of the earth) and we cannot disperse indefinitely. Unless such interactions are to be governed by violence, they should be governed by right. Just as domestically, we have a principle of constitutional right for governing relations (in situations of unavoidable interaction), we have a principle in cosmopolitan right. These are like "circumstances of public right." The fact that we already have cosmopolitan ties shows it not fantastic. indeed, that these ties are already somewhat regulated by an unwritten code (perhaps Kant is refering to his a priori logic, or perhaps to things like the customarily merchant law.)

Gary Banham said...

I was using "justificatory community" as a way of describing conditions of interaction between people. Denial of justificatory community is effectively denial of common humanity so the action of the colonists is better captured, I think, in your stronger claim.
Now, when you move on to the point about the state of nature you raise a key question concerning why we should be surprised by the European actions and what the ground of condemnation of them is. In response the way you describe cosmopolitan right treats it as a surrogate for public right. Seeing it this way has the consequence that cosmopolitan right works even in the absence of an established polity. So is cosmopolitan right then a form of provisional right?

Timothy said...

Gary: There are two issues: why should the visitors not be inhospitable? why should the locals not be hostile to visitors (why do the visitors have a right not to be treated hostility)? I'm not sure the latter question came out clearly enough. More on the latter below, but first the former.

I don't find it particularly surprising that Kant condemnded the specific actions of imperialists. What I find surprising is that he seems not to allow colonialism, if colonialism is done "right" and aims at the establishment of a state to regulate the "savages" in the state of nature. He seems prepared to let Native peoples be in (what Kant considers) a non-rightful condition amongst themselves. The use of force by colonists is not allowed, even to establish a constitution of the first level of public right (constitutional right). See the end of 62 in the Metaphysics of Morals. However, among neighbors who are in a state of nature, Kant says one neighbor can force another to leave the state of nature and join the state. So that is one puzzle. I've written on this and have ideas how to solved. One answer is that to coerce you, it can't always simply be "you've done wrong, I can coerce you," but that often, you in some sense have to have wronged me. It does not injure me if distant peoples stay in a state of nature (at least if they don't affect me), whereas it does if a neighbor does; my rights are threatened even before he does anything actively. I am insecure, and may force him to join a state or leave the neighborhood. (See first footnote to section II of PP; section 42 and 44 of MM).

Afterall, Kant says peace needs to be established, and someone who does not give me security can be treated as an enemy if will not join a lawful condition with me.

Cosmopolitan right might be the form of public right between the natives and outsiders. It is not so much a surrogate for public right (it is a separate question whether it is a surrogate for an ideal or more ideal form of public right, like the world republic). On whether it is provisional right: in your article, you matched provisional right onto private right. I think provisional right may extend into private right. I suppose I am with Ellis on this; everything may be provisional. (though I would add we might call it conclusive if we are honestly striving).

But this emphasis in Perpetual Peace (on security, and viewing someone as a threat even before active violation seems very much in tension) seems very much in tension with the idea of not viewing foreigners with hostility just because they arrive on your land. If we can treat our neighbors with hostility in the state of nature, why not foreigners?

It is on this basis I suggested that cosmopolitan right is a form of public right. It differs from the state of nature (apparently) in how we view threats. If a local were visited by a foreigner, it is quite possible that foreigner has bad intentions, and that being hospitable will lead to conquest later. (cf. Native Americans, etc.) Locals can be very uncertain about the intentions of foreigners.

(Though I can imagine some attempts to resolve this tension; we could say that in the state of nature, someone who is *called* to leave it, but refuses, can be forced to leave or join the state. So perhaps Kant believes that even in the state of nature, someone can only be treated as an enemy for refusing to leave the state of nature only after denying they will enter into a lawful condition. The attempt to get them to enter must be made first. As another possibility, perhaps, we might treat another as an enemy if must demonstrate by their declared maxims (word or deed) that they will to stay in the state of nature or do wrong (in addition to the above possibility).

Timothy said...

" in describing this third article as a supplement to the "unwritten code" Kant makes reference to the idea of supplement twice over."

Do you mean CR supplements the other levels of write and also supplements the unwritten code? I am not sure I understand this.

If that is not what you meant, where does he make reference to idea of supplement twice over? (Just so you know, the section, the "supplement" discussing the guarantee of perpetual peace is not the same word in german as the "supplement" in the section on cosmopolitan right.)

Gary Banham said...

With regard to "supplements": what I was meaning here is that Kant describes CR as a "supplement" to the unwritten laws of nations and this struck me as odd in two ways. Firstly, since the unwritten laws must themselves surely be a supplement to what is written down and secondly, if CR is a "supplement" to the unwritten law then it would be a supplement to something which is itself a supplement.

Gary Banham said...

The two questions about why visitors have a right to be treated hospitably and why those being visited should allow the visit are linked together. The right to be able to visit does depend, as you have suggested earlier, on the original common possession. Not to treat those one is visiting with hostility is (amongst other things) to treat holdings found there with respect.
Provisional right and private right: my point in the article here was to say that everything purely private is, by means of that, provisional. So the question is how to constitute public right as something non-provisional. I am hesitant on these grounds to treat CR as a public right since that would entail that there was some form of state existent able to enforce it which is not so. In that respect it is, as you suggest, a surrogate for such a state (less so than a federation but still on the same kind of lines).