Cosmopolitanism, Coercion and Immigration

As I mentioned in yesterday's posting there has recently appeared a response from Tim Waligore to an earlier posting on this blog. Yesterday I tackled one aspect of Tim's response which concerned the reference I made earlier to the notion of the "social contract" and whether I could simply move from the general account of coercion in the "Introduction" to the Doctrine of Right to the discussion of the social contract that is specifically discussed under the heading of Public Right. However, the more important point Tim raised against my earlier published position concerned a cosmopolitan objection to the reasoning I gave when prescinding from the detail of an argument concerning immigration controls in the journal Political Theory.


First it's necessary to place this discussion back in context. The argument in Political Theory to which I was responding concerned the question of whether immigration controls are coercive. One of the parties to the debate argued that they are coercive whilst the other suggested that they are not but merely acts of "prevention". Basically the distinction is that some acts are ones that you can be prevented from doing without it following that you have been coerced. So if I refuse someone's request to marry me I haven't coerced them but I have prevented them from carrying something out. Similarly it may be that preventing someone from coming to a country by erecting an immigration barrier does stop them from carrying out their purpose without it following that this means that they have been coerced. Now, the reason I proceeded to prescind from the specifics of the debate was because it struck me that both parties to it effectively subscribed to a view of politics that was broadly informed by the views of Robert Nozick. On those views acts of coercion require some special justification as the nature of "right" is not defined in terms of coercion but rather more loosely by reference to something understood as "autonomy" where this notion appears to have some vague connection to the Kantian term but which Kant does not use in political philosophy. In response I was suggesting that a Kantian view is quite different since, on this view, right and authorization to use coercion are intimately connected, Kant even writing at one point that they "mean one and the same thing" (Ak. 6: 232). So my decision to prescind from the detail of the argument concerning immigration controls was based on an attempt to reach a more fundamental question of political philosophy.


However Tim's reply to my earlier posting raises a question which suggests that the response I made to the debate in Political Theory concealed a problem, a problem that, effectively prevents my being able, as easily as I thought in any case, from being able to prescind from the debate over immigration controls. There are two strands to Tim's challenge. The first concerns the way the "social contract" is referred to when Kant mentions it in his discussion of Private Right. This occurs towards the conclusion of Kant's discussion of acquisition when he writes that the problem of its justification requires reference to a notion of original acquisition before going on to write: "even if it is solved through the original contract, such acquisition will always remain only provisional unless this contract extends to the entire human race" (Ak. 6: 266).


This points to the first rationale Kant gives for a connection between the social contract and cosmopolitan considerations. To it can be added a second one to which Tim also refers. This is the very beginning of the discussion of Public Right where we find:

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. (Ak. 6: 311)

Kant's concluding comment here is fairly drastic but clearly indicates the importance of the connection he felt there was between the different elements of right. Cosmopolitan right and international right are here distinguished though the difference between them is not clear at this point of the text.


Tim's general point is that the will of a given state is, by reference to other states, still a specific will, the reasoning that Kant uses to suggest that the relationship between states constitutes a state of nature. In this situation the existent state appears to those not included within its boundaries simply as a power so that whilst the state needs no specific justification for coercion in regard to its citizens it does require some justification with regard to non-citizens who are not included in the will that was established when the state was set up. Further, to go back to the specifics of the question concerning immigration controls, there needs something specific to be shown concerning what it is that requires non-citizens to be limited and regulated in terms of their entry to the state, something that specifically relates to them as non-citizens concerning why they should be limited in this way.


A lot of separate issues are involved here. Firstly, Tim is quite right to bring out the problem of provisionality with regard to states prior to establishment of a cosmopolitan contract. This is the subject of the monograph of Elizabeth Ellis to which I have given some response elsewhere. It does importantly complicate questions of state of nature theory if the relationship between states is thought of as such a state of nature although it has to be added that this view of the existent state of play between nations is not held by, for example, Habermas who instead insists that the present relations involve a form of law that shows the state of nature has, to at least some extent, been superseded. From a strict Kantian point of view, however, Tim is right to draw attention to this point.


The second point is that the connection drawn between the right of the state, international right and cosmopolitan right at the beginning of the discussion of public right does not collapse the distinctions between them. Kant indicates an important relationship between them but he does not conflate them with each other. So there is some sense to right within the state, regardless of international right and cosmopolitan right although this sense is, as Ellis and Tim both correctly argue, provisional. The scope of such provisionality hence has to be worked through which I attempted in the article I wrote in response to Ellis.


However these points are not the core of the issue. The core is rather Tim's conclusion that we cannot abjure the provision of justification of coercive measures with regard to the non-citizens who wish to enter the domain of the state. Now, within the argument of the Doctrine of Right, Kant does not address this question. Kant only looks at the reasons why colonial settlement is problematic arguing for a need for specific contracts and against force. There is no specific discussion concerning what is required for those who would wish to settle within the domain of an existent state.


However surely the Kantian response is that the existent state has, by means of the constitutional measures it has set in place, defined the scope of agreed settlement within its borders? This would not merely include the need for new settlers to adhere to the laws already given but could well incorporate considerations the citizens of the state have made to the effect that they wish to decide whether to admit new citizens. This does not have to be based, as it so often is for existent states today, on grounds of ethnicity or on implied reference to considerations of "welfare". But part of the point of an established constitution is surely one of decision that the sovereign power can determine the basis of citizenship. After all, it is normal to be able to strip citizenship from someone if they perform certain acts deemed treasonous so, similarly, there could be grounds for determining whether or not anyone is allowed to begin life as a citizen. It is true that all this is, in the strict sense, provisional but no more so than any other ground of right. This doesn't prevent it from being the case that the non-citizen needs to be given justifications for why application for citizenship is turned down but the fact that there needs to be a process of such application would itself be a settled law of the land, like any law and as such the process would be in no more need of special justification than any other and in this sense I would continue to reject the view I took to be underlying the debate that took place in Political Theory.

Coercion and the Social Contract

In a recent posting Tim Waligore has replied to an earlier posting of mine. In that earlier posting I was myself responding to a debate in the journal Political Theory that had specifically focused on questions of whether immigration controls were coercive but my posting prescinded from the specific debate over immigration controls to raise what I took to be a prior question about the nature of political justification and in that posting I suggested a contrast between "liberal" views and "republican" ones. In some respects, although this is not the point of Tim's reply, I now think the contrast wasn't entirely correctly described in that posting. As I pointed out in that earlier posting there was a model of political authority derived from Robert Nozick at work in the debate in Political Theory so it would make more sense to describe it as a contrast between "libertarian" and "republican" views rather than "liberal" and "republican". As I will explore on some other occasion there are good reasons for thinking that libertarian views are very far from being "liberal" in inspiration.


In any event, the contrast I was intending in this earlier posting was between a view of political authority that regards coercion as requiring specific additional justification over and above the basic rights of states and one that instead sees coercion as built in to the very nature of the right of states and this was the basis for my claim that the views in the Political Theory debate shared an underlying commitment to the same kind of political notions despite disagreeing over the question of whether immigration controls constituted a "coercive" act or not.


Tim's posting responds to this earlier one of mine in effectively two different ways. The first is to suggest that I moved rather too easily from the view of the "Introduction" to the Doctrine of Right to the account of the social contract (which is part of "Public Right") whilst the second response concerned instead the specific question of whether I had not, in my earlier posting, left aside the justification by which states relate to each other, left aside, that is, an important question of cosmopolitanism in my desire to prescind from the debate concerning immigration controls. I will tackle this question concerning cosmopolitanism and immigration controls in the next posting, concentrating in this one merely on the relationship between coercion and the state contract.


Tim is right that I was drawing on the "Introduction" to the Doctrine of Right when I discussed coercion in the earlier posting. In the "Introduction" Kant makes clear that right is connected to authorization to use coercion arguing: "if a certain use of freedom is itself a hindrance to freedom in accordance with universal laws (i.e., wrong), coercion that is opposed to this (as a hindering of a hindrance to freedom) is consistent with freedom in accordance with universal laws, that is, it is right" (Ak. 6: 231). So the central message that coercion is understood as a basis of right provided it meets the conditions given here is allowed.  Subsequently Kant goes on to talk about this "reciprocal coercion" in terms of strict right, so much so that he writes: "Right and authorization to use coercion...mean one and the same thing" (Ak. 6: 232).


Tim's point, however, is that it is a long way from this argument to construction of Kant's view of the social contract since the opening of the Doctrine of Right proper is with private right and that there is only one reference to the notion of a "social contract" in the province of private right. The context of the discussion of the contract in private right is the penultimate paragraph of Kant's account of acquisition in which it is made clear that any acquisition that occurs in the state of nature is only provisional. Here Kant does also add: "even if it is solved through the original contract, such acquisition will always remain only provisional unless this contract extends to the entire human race" (Ak. 6: 266).


This point connects to the question of cosmopolitanism to which I will return in the next posting. However it is worth pointing out, as a general matter of political theory, that the basis of the notion of the state was already given in the argument of the "Introduction" to the Doctrine of Right on which I was drawing in my earlier posting. This is made specifically clear in paragraph 45 of the Doctrine of Right where Kant writes that "insofar as" the laws of the state "are a priori necessary as laws, that is, insofar as they follow of themselves from concepts of external right as such" then its form is "the form of a state as such", the state in idea, the state "as it ought to be in accordance with pure principles of right". Hence the concepts of external right as such are sufficient to give us the norm by which we can test the behaviour of actual states. This being so I don't take it to be the case that the move I made from the argument of the "Introduction" to the Doctrine of Right to the notion of the social contract was, in itself, one that involved a conflation of levels. It is, however, a different matter whether some legitimate cosmopolitan replies to the argument I made in the earlier posting are not, all the same, available.

Publicity and Hate

The last posting referred to Jeremy Waldron's Holmes Lectures and I intend to respond again in this posting to one of them, focusing this time on the second one. I should first point out that they are all available and linked to both as papers and videos on the Political Theory - Habermas and Rawls blog and I would like to thank Tim Waligore for drawing these lectures to my attention.

In his second lecture Waldron makes two points that I wish to respond to here, the first concerns the relationship between hate and publicity and the second the relation between hate speech and hate crime. The connection between hate and publicity is powerfully made in the image of racist wolves calling out to each other over night. The main point Waldron brings up with regard to the question of the regulation of hate speech concerns the fact that such speech should not be seen as primarily private in nature but as public. The sense in which he presents it as public is in terms of its possessing an intention to summon up a certain kind of environment characterised by its own notion of a public good.

The way in which this idea makes sense is in terms of the point of such speech being to suggest, as Waldron puts it at one point, that the struggles of the past (including such things as segregation, the persecution of minority groups and slavery) are not over and can and should be re-opened. Along with this is the creation of points of solidarity between those who express such hate speech to encourage each to "come out" as haters and thereby to consolidate and confirm each other in this identity, an identity that forms part of the nucleus of the type of society the bearers of such attitudes would like to create.

This point about the inherent publicity of such hate speech is, in general, very well-made by Waldron and points to a further characteristic of the need to think publicity as a key value in political society. Previous postings discussed both the positive and negative accounts of publicity Kant provides in Perpetual Peace and what Waldron's discussion brings out well is the understanding that it is not just with regard to values that have a positive valence that such criteria have significance. The understanding of the action of hate speech as a public action that intends to orient general society in the direction of its aims is a sound one and explicates well why members of minority groups feel threat from the presence of such "speech" (in the circulation of writings, posters, marches and symbols).

A second important point that Waldron refers to in this second speech concerns the distinction between hate speech and hate crime. Whereas the former is evaluated in terms of intention but not motivation, the latter, he suggests, does require evidence of motivation. The intention in the former is like the intention at work in public reason generally (as indicated in my previous posting on intention not being understood as "private"). It does not require investigation of "motives" understood as inquiries into the mental states of someone. Hate crime, by contrast, he suggests does require understanding of motives. The suggestion that hate crime requires reference to motives is not as evident, however, as Waldron thinks. Surely it will be the case that such crime indicates that someone intended harm to another and that such harm was based on response to salient characteristics of another. However, the fact that the crime involves harm and intended harm does not distinguish it from hate speech. So it must rather be because the harm was intended due to the salient characteristics of the other that is thought to involve motivation. This need not follow since the identification of the salient characteristics as a ground for attack can be manifested without reference to the "inner" workings of the attacker. Shouting certain words or slogans for example could well be sufficient as could distribution of literature prior to the attack that showed the intent of hate speech. So whilst the argument in favour of seeing hate speech as public is a good one the distinction between hate crime and hate speech offered does not convince me.

Publicity, Peace and the Preliminary Articles

I previously argued that the division of the preliminary articles of Perpetual Peace that Kant gives is not well justified but, in an extended comment on this posting, Tim suggested a basis for this division that was grounded both on appeal to considerations of publicity and those of peace and Tim's arguments are worth extended treatment. But first it is necessary to reprise the preliminary articles and Kant's division of them.

The first article concerned secret reservations when making peace treaties, the second inheritance of states by exchange, purchase or donation and the third the abolition of standing armies. The fourth covered external debt with regard to the affairs of a state, the fifth was the controversial banning of intervention in the constitutions of other states and the sixth concerned dishonourable stratagems in war. Kant divides them in the following way: the first, the fifth and the sixth are to be stopped at once whilst the second, third and fourth can be postponed being put into effect. In my earlier posting I questioned whether Kant had provided clear and good reasons for this division suggesting that his account of it marked a low point in the exposition of Perpetual Peace.

In response Tim suggested a number of considerations that make it worth revisiting my verdict. The first article concerns secret reservations and, in a sense, it is less than clear when these are at work though the general indictment of them is evident in terms of peace (but difficult to relate to questions of publicity). With five and six (non-intervention and dishonourable stratagems) these practices are, Tim suggests, ones that would, if allowed, make everyone insecure. Due to that it is a good idea to end them immediately. The aim is to increase general security in doing so though, it needs to be pointed out, that six, involving as it does secretive conduct, is, like the first article, intrinsically difficult to evaluate in practice. Only the ban on intervention in the constitution and affairs of other states is one that can be clearly measured though there are good reasons for viewing it as controversial.

If we turn to the three articles that Kant gives a right to postponement of, then, in these cases, Tim suggests, we have always got something intrinsically public in view. The purchase of a state occurred publicly and in accordance with norms held by those engaged in the practice. Invalidating the present status of the state in question now would add to insecurity. Standing armies and public debt are also intrinsically public and the point of that would be that progress with regard to these matters would be itself public. So other states can tell what you are doing here and whether you are moving towards the desired end but, in the interim, immediate implementation would create more problems than postponement.

Tim's account is better than the explicit one provided in the text where Kant appeals only to a kind of possession in "good faith" that held with regard to the articles that can be given postponement referring to a kind of public opinion holding (although Tim's account does, at one point, refer to this). The problem here is why this reference to public opinion should be thought to have normative standing? The only rationale appears to be the one Tim makes explicit: security/stability of the general system of states. Since public undermining in an immediate sense of articles 2-4 would increase instability there is a case in public reason for delay.

The substantial problem with this reconstruction is that the description of the need for immediate implementation of the fifth article concerning non-intervention doesn't really fit. Whilst the presumption that allowing intervention into the affairs of other states would create instability is not, prima facie, unreasonable, there is a problem with it. This is that certain kinds of states may possess constitutions that make them more likely to be troublesome to their neighbours. Indeed, something like this claim is made in the argument for the first definitive article. Due to this claim being made there it is not evident that stability/security in a general sense is up-held by immediate implementation of the fifth preliminary article. It might be generally better to delay implementation of it until after the aspiration of the first definitive article has been met. This creates a problem with viewing the fifth article as kin to the first and the sixth, as the first and the sixth involved actions intrinsically secret in nature as opposed to the public ones of 2-4. Hence the fifth article is an anomaly and doesn't fit the rationale of Tim's reconstruction (although his original note making his case for this reconstruction does admit this).

On these grounds, I would have to say I am still not convinced that the division of the preliminary articles is well articulated by Kant.

Kantemplation

In addition to this blog and the one of Tim's mentioned in yesterday's posting I should also mention a long-standing one of Heather Roff's, called kantemplation. Putting Heather's blog alongside that of Tim and Inter Kant makes for a Kantian trinity! Any other Kantian bloggers out there please contact us and link up!!

New Blog on Cosmopolitics

Timothy Waligore, a supporter of this blog, who has commented on a number of previous postings, particularly with extensive comments on global taxes, and matters connected with the views of Thomas Pogge, has launched his own blog. It is focused on questions of cosmopolitics and Tim is good enough to credit this blog with being an inspiration to him. Expect dialogue and productive exchange between the two blogs, not least due to the fact that, in the course of forthcoming commentary on the text of Perpetual Peace, there will be discussion here of the 3rd definitive article on the question of cosmopolitan right.