Colonization and Property in Kant's Rechtslehre

Colonization and Property in Kant’s Rechtslehre1 Timothy Waligore Queen’s University, Kingston, Ontario [email protected] [email protected] Please do not cite or quote without permission 1 This is an edited version of the fourth substantive chapter of my dissertation, Cosmopolitan Right and Historical Wrong: Kantian Theory and Reparations for Indigenous Peoples. I successfully defended my dissertation in June 2008, and received the Ph.D. from Columbia University on October 15, 2008. Waligore 1 Introduction In his discussion of the cosmopolitan right to hospitality, Immanuel Kant said that individuals have a right to travel and visit distant lands without being treated in a hostile manner for making offers of commerce. However, any further interactions beyond the initial attempted offer required the consent of Native peoples.2 This consent requirement is a strong one: The Natives can refuse offers of interaction without giving any justification to the settlers and without having taken into account the settlers’ interests.3 There are two exceptions. The first is that outsiders cannot be turned away if doing so would cause their destruction. In that case, the Natives are obliged to give hospitality; the outsiders’ right to hospitality is only a right of temporary sojourn, not necessarily a right to settlement permanently. The second exception is when the outsiders settle far enough away from the Natives.4 Kant’s analysis leaves open a major question: From where do a Native people (or any people) get the right to claim a large portion of the Earth as their own and thus the right to exclude outsiders? In this essay, I address a little noticed tension between two views held by Immanuel Kant: (1) his condemnation of European colonization on the land of Native inhabitants5 without their actual consent and (2) his theory of property, in which a person (such as a settler) is bound to respect the possession by another person (such as a Native inhabitant) of an object (such as land), only if such possession takes into 2 I emphasized this in chapter 3 of my dissertation, Cosmopolitan Right and Historical Wrong (Columbia University, 2008). See VIII:357 PP, VI:352 MM §62. 3 Kant’s own formulation refers to these obligations as proceeding from a “common will,” “united will of all,” or “omnilateral will.” These terms have affinities with Rousseau’s “general will.” The formulation of “taking into account their interests” is from Jeremy Waldron’s statement of this puzzle, which I closely follow. He suggested this puzzle to me as worth exploring in personal communication in 2005 following our joint appearance on an APSA 2005 panel on indigenous rights. Since then, we have engaged back and forth on this topic. I discussed this puzzle in greater detail, with a more detailed explanation of Kant’s theory of property, in Timothy Waligore, "Kant, Imperialism, and Provisional Right," paper presented at the annual meeting of the American Political Science Association (Philadelphia, Pennsylvania, August 31, 2006). This chapter is based in part on that paper, and on my own contribution to a working paper that Waldron and I have been working on. The solution presented here is probably not one Waldron would endorse. My thinking about Kant, indigenous peoples, and cosmopolitan right is greatly indebted to Waldron, even though I generally reach very different conclusions. 4 VI:353 MM §62. In addition, Kant says that the outsiders should not take advantage of the ignorance of the Natives. 5 In this chapter, the term ‘Native inhabitants’ refers to inhabitants of land who are native to the land relative to the newcomers who want to settle the land or visitors who want to engage in other contacts. In several instances, as will be made clear from the context, the term is used to refer only to indigenous peoples, “tribal” peoples, or nonsedentary peoples. The term ‘settlers’ refers to actual settlers and would-be settlers. Waligore 2 account their interests, or is justifiable to all (relevant) others, or proceeds from a common will. Kant expresses both of these views in the Rechtslehre, part I of the Metaphysics of Morals.6 Given his theory of property, how can Kant assume that Native inhabitants have a title to the land they inhabit and that this title is so strong that settlement by outsiders can take place only with the explicit consent of the Native inhabitants? My ultimate answer will be that Kant cannot maintain such an absolute position. However, I will argue that Kant is right to require consent except where one has a (somewhat stronger) duty of hospitality attached to one’s property or territory. This essay is organized as follows:7 In section 1, in preparation for analyzing the tension between Kant’s theory of property rights and his views on settlement in part I of the Metaphysics of Morals, I outline the structure of Kant’s Rechtslehre (the “Doctrine of Right”), and briefly review Kant’s 6 The Metaphysics of Morals should not be confused with Kant’s earlier work, The Groundwork for the Metaphysics of Morals. Citations will refer to the volume and page number of the Academy edition of Kant’s works, followed by an abbreviation for the work, and (if appropriate) a section number or label. For example: “VIII:349 PP” for the first definitive article in Perpetual Peace. PP = Towards Perpetual Peace. TP = “On the Common Saying: That May be Correct in Theory, but it is of No Use in Practice.” MM = Metaphysics of Morals (Introduction & Part I: the Rechtslehre, or Doctrine of Right). DV = Metaphysics of Morals (Part II: the Tugendlehre, or Doctrine of Virtue). Rel. = Religion within the Boundaries of Mere Religion. CF = The Conflict of the Faculties. Unless otherwise noted, translations of PP, TP, MM, and DV come from Immanuel Kant, Practical Philosophy, ed. Mary Gregor (Cambridge: Cambridge University Press, 1996), and those from Rel and CF come from Immanuel Kant, Religion and Rational Theology, ed. Allen W. Wood and George Di Giovanni (Cambridge: Cambridge University Press, 1996). 7 I am indebted to Jeremy Waldron for the dialectical structure of this essay. The content is solely mine, and I am responsible for any awkward aspects. I also owe a great general debt to Waldron for how to think about issues of property, freedom, homelessness, charity, and need. I draw especially on Jeremy Waldron, "What Is Private Property," Oxford Journal of Legal Studies 5, no. 3 (1985): 313-49; Ibid., "Welfare and the Images of Charity," in Liberal Rights (Cambridge: Cambridge University Press, 1993). I have also found useful these works by Waldron: Ibid., "Nozick and Locke: Filling the Space of Rights," in Natural Rights Liberalism from Locke to Nozick, ed. Ellen Frankel Paul, Fred D. Miller, and Jeffrey Paul (2005); Ibid., "Who Is My Neighbor?: Humanity and Proximity," Monist 86, no. 3 (2003): 333-54; Ibid., "Property, Honesty, and Normative Resilience," in New Essays in the Legal and Political Theory of Property, ed. Stephen R. Munzer (Cambridge: Cambridge University Press, 2001); Ibid., "Homelessness and Community," The University of Toronto Law Journal 50, no. 4 (2000): 371-406; Ibid., "The Advantages and Difficulties of the Humean Theory of Property," Social Philosophy & Policy 11, no. 2 (1994): 85123; Ibid., "Property, Justification and Need," Canadian Journal of Law and Jurisprudence 6, no. 2 (1993): 185215. Waligore 3 cosmopolitan right and Kant’s ideas on settlement in public right.8 In section 2, I discuss private right and Kant’s views on private property and its possession and acquisition. In section 3, I restate my question in light of the analysis in section 2. Kant’s proximity principle, in its general form, states “when you cannot avoid living side-by-side with all others, you ought to leave the state of nature and proceed with them into a rightful condition, that is, a condition of distributive justice.” In the state of nature, you and I will disagree about what is belongs to each of us, in terms of property. In the state of nature, I am dependent on your opinion of what you think is good and just. My belongings are insecure and at most provisional; I cannot have conclusive property rights outside the state. So Kant says that we ought to leave this condition and enter into a condition where a common judge can decide controversial matters. Moreover, someone may use coercion against a neighbor who will not leave the state of nature, forcing him to join a civil condition or leave the neighborhood. What is odd is that Kant at the same time asserts that it is not permissible for colonists to use force to bring indigenous peoples into a civil condition. He calls such a way of acquiring land “Jesuitism.” Why the discrepancy here? Before giving my provisional answer, I explore in section 4 how we might deal with the problems of disagreement in cosmopolitan right. I consider both the Native and the settler perspectives. I argue that Kant seems to have been specifically concerned about the abuse of moral language involved in the Europeans’ justifications for colonialism, and the moral practices of Jesuitism. I investigate reasons for why Native peoples may permissibly appropriate a section of the earth as their own territory. In particular, I look at Sankar Muthu’s argument that to respect the humanity in another is to respect their ability to set cultural ends. I also argue that Kant suggests that we not turn away travelers if this would “destroy” them, because this requires a level of certainty that only God can have. We cannot be absolutely certain that the 8 See chapter 3 of my dissertation for a more detailed examination. For most of my time writing this dissertation, I was not aware of any extensive discussion in the literature of this tension in Kant’s theory. Some Kant scholars such as Brian Tierney had briefly mentioned a similar problem without exploring it. See Brian Tierney, "Kant on Property: The Problem of Permissive Law," Journal of the History of Ideas 62, no. 2 (2001): 301-12, 308. Near the end of writing this dissertation, I was finally able to obtain a more extensive article that is directly on this point. Peter Niesen, "Colonialism and Hospitality," Politics and Ethics Review 3, no. 1 (2007): 90-108. I am happy to say that Niesen’s findings include points that largely agree with points I consider particularly important; however, I do not agree with him in all respects. Waligore 4 basis on which we claim the right to turn others away, that we can trace our title to the first legitimate claimants to this land, is correct. It is only in a civil condition that we can have that kind of certainty about property rights. Drawing specific parallels to Kant’s writings on religion, I argue that Kant may have viewed political and cultural communities in much the same way he view churches. That is, he seems to have been suspicious of historical texts and relying on a community of scholars to interpret religion texts. Or rather, he thought this was uncertain, and that direct moral interpretation based on reason was better. He may have viewed property rights, and the historical record of titles, in a similar manner way. While we cannot invoke a possibly unfounded title to destroy someone, since we lack such God-like certainty, I argue that this still leaves to say we can invoke this title short of destruction. Whatever Kant’s exact thoughts on this matter, and I make no claim that they exactly coincide with the position I offer here for consideration, I posit Kant may have allowed different actions based on what level of certainty was required. This suggests that indigenous peoples may have a solid enough title for the purposes of cosmopolitan right, even if it cannot be traced back to literal first occupancy. Having laid this groundwork, I present in section 5 a provisional solution to the main problem of this essay, the puzzle as outlined on the first page of this chapter, and as restated in section 3. This solution is based on whether reciprocal interaction is possible, actual, or necessary, and if so, whether the interaction in question is loose (relatively infrequent) or dense (relatively frequent and pervasive) interaction. When the use of free choice by different people is unavoidably opposed, law needs to regulate these conflicts so they do turn violent. For Kant, the proximity principle in general requires us to come to terms with those with whom we are unavoidably in conflict with, or unavoidably side-by-side. However, the proximity principle required different solutions based on how pervasive and opposed the freedom of choice can be, is, and must be. The proximity principle at the local level requires us to come to terms with our local neighbors by forming a territorial state. The global proximity principle requires us to come to terms with each other at the level of global interaction.9 Since the Earth is a bounded sphere, and an 9 “Proximity principle” is Jeremy Waldron’s term. Waligore 5 unlimited plane, we cannot all disperse and never come into contact. However, the types of dense interaction that occur at the domestic level are often avoidable (or at least they were). Still, the limits of the globe do require leaving open the possibility of rightful interaction and to giving rights to travelers who need hospitality. This idea of a community of possible interaction sets the limits and terms of cosmopolitan right, and it is consistent with both Kant’s theory of property and the strictures of public right at the other levels. In section 6, I conclude with brief thoughts on how this theory of the cosmopolitan right can help us address historical wrongs today. I will now lay the groundwork for my later claims by describing the structure of the Rechtslehre and reviewing Kant’s position on settlement. 1. The Structure of the Rechtslehre, Public Right, and Settlement In the first main part of the Metaphysics of Morals, often called the Rechtslehre or doctrine of right, Kant is not concerned with ethical laws that regulate people’s inner motivations. Kant discusses virtue or ethics in the second part of the Metaphysics of Morals, the Tugendlehre or doctrine of virtue. 10 Ethical laws require that one set ends for oneself (e.g. to improve one’s perfection, to increase other’s happiness). As such, ethical laws cannot involve external lawgiving. Only I can set an end for myself. Others may use coercion or inducements to get me to perform certain actions leading to an end. However, that is different from setting an end for myself, and doing the action because I, as a rational agent, set that end for myself. In the doctrine of virtue, the incentive for following the law has to be the moral law itself. If I follow the law simply because it is to my advantage, or out of beneficence, I am not doing my duty. In contrast, the doctrine of right deals with the formal conditions for outer freedom. What is required for the free exercise of free choice, limited only by its consistency with other’s use of choice? in everyone’s freedom will be a system of juridical principles for regulating actions for which external 10 Recht does not easily translate into English and is roughly a mixture of ‘law’ and ‘justice’. Recht does not always mean a right, as in ‘a right to free speech’. For more on the difficulties with translating the word Recht see: Mary Gregor, “Translator’s note on the text of The metaphysics of morals,” in Practical Philosophy, 357-359. See also the translator’s introduction in Immanuel Kant, The Metaphysics Elements of Justice, trans. John Ladd (United States of America: Library of Liberal Arts, 1965), xv-xviii. Waligore 6 lawgiving is possible. In the doctrine of right, the incentive for following this law need not be that it is the law. I can follow it because of fear of punishment, beneficence, reputation, or virtue. It does not matter, for the purposes of external law-giving in the doctrine of right, what ends people adopt when they follow the law (the ‘why’). In the doctrine of right, principles specify the outward actions that are commanded, but the incentive to follow them may be for any reason at all. The universal principle of right states that “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.”11 It is wrong from anyone to use her freedom to hinder me in this exercise of my freedom. Right is allied with an authorization to use coercion, as a hindering of a hinderance to freedom. It is then right to use force against those who infringe outer freedom.12 Kant divides his discussion of the doctrine of right into ‘Private Right’ and ‘Public Right.’13 Private right concerns laws that do not need to be promulgated, but can be grasped a priori by reason alone. It concerns relations between individuals in ‘the state of nature’, or in abstraction from their relations in a civil state. The most prominent topics discussed under private right are contracts and property. While I am born with what is internally mine (the innate right of freedom),14 I originally possess nothing external as rightfully mine.15 To have private property rights in external things, I have to acquire them, which Kant discusses under the topic of private right. I return to private right in the next section. For the remainder of this section, I discuss public right. Kant says that people who are unavoidably side-by-side ought to leave the state of nature and proceed into a rightful condition. In the state of nature, you and I do not lack secure enjoyment of our respective possessions. It is not merely that I am physically insecure; it is that others have a right to do 11 VI:230 MM “Introduction to the doctrine of right.” 12 VI:231 MM “Introduction to the doctrine of right.” See also Jeremy Waldron, “Kant’s Positivism,” 51. 13 VI:242 MM “Division of the Metaphysics of Morals as a whole.” 14 VI:402 MM §4. 15 VI:258 MM §10. Waligore 7 what they think good and just. There is no common authority, and I am dependent on others’ opinions of what is just. Without a common judge to decide disputes, we are likely to fight about conflicting ideas of who owns or should own what, and each claim that right is on their side. So Kant says that a multitude of people (either a multitude of humans or of whole peoples), because they affect each other, need to be in a rightful condition. Distributive justice in the civil condition involves a court being able to make this decision about what belongs to whom. In a rightful condition, people have a will uniting them, that is, they have a common constitution, and enjoy what is laid down as right.16 For Kant, there are three levels of public right.17 The first is the ‘right of the state,’ which can also be referred to as ‘civil right,’ or ‘domestic civil right,’ or just ‘domestic right.’ This sets the principles that apply at the domestic state level, for individuals who unavoidably interact in a local territory.18 The second level of public right is the ‘right of nations’ or ‘international right,’ and it governs relations between states, but not between non-state nations such as tribes.19 The third level is ‘the right of all nations,’ or ‘cosmopolitan right,’ which focuses on relations between visitors from distant lands and the peoples (not simply states) with whom the visitors encounter.20 16 VI:311 MM §43. 17 The three levels of public right laid out in the Metaphysics of Morals (§43) basically correspond to the three definitive articles of perpetual peace in Perpetual Peace. 18 VI:311 MM §43. What I refer to in English as ‘Domestic (Civil) Right’ (Staatrecht) is a category in public right, and should not be confused with what some translators refer to as ‘the Right of Domestic Society,’ which is a category in private right. In the latter, Kant discusses marriage right, parental right, and the right of the head of the household (MM §§24-29). ‘Household right’ might be an appropriate term for ‘the Right of Domestic Society’, so long as we keep in mind that Kant sees a household as a type of society. 19 VI:343 MM §53. 20 VI:352 MM §62. I thank Waldron for his analysis of the category of cosmopolitan right, which I draw on. Waldron and I disagree on much, but I believe we share similar ideas about aspects of the structure of the category of cosmopolitan right, even if not its spirit. Jeremy Waldron, "What Is Cosmopolitan?," Journal of Political Philosophy 8, no. 2 (2000): 227-43. See further chapter 3 of my dissertation. For useful interpretations and historical discussions of Kant and cosmopolitan right, see Sankar Muthu, Enlightenment against Empire (Princeton, N.J.: Princeton University Press, 2003); Ibid., "Justice and Foreigners: Kant's Cosmopolitan Right," Constellations 7 (2000): 23-45; Georg Cavallar, The Rights of Strangers: Theories of International Hospitality, the Global Community, and Political Justice since Vitoria (Aldershot: Ashgate, 2002). Two other excellent writings on cosmopolitan right appear in A. John Simmons, "Human Rights and World Citizenship: The Universality of Human Rights in Kant and Locke," in Justification and Legitimacy (Cambridge: Cambridge University Press, 2001); Katrin Flikschuh, Kant and Modern Political Philosophy (Cambridge: Cambridge University Press, 2000), chs. 4-6. Waligore 8 Kant is clear that without the three levels of right “the framework of all the others is unavoidably undermined and must finally collapse.”21 However, it may appear that cosmopolitan right is part of international right, or not part of public right at all. Kant’s cosmopolitan right deals on the rights and obligations individuals and peoples have to peoples they visit, and the rights and obligations peoples have with regard to outsiders. These obligations may be prior to (or in abstraction from) any explicit actual contracts they (or their polities on their behalf) have made with peoples around the world.22 The literal meaning of cosmopolitan right indicates a concern for the rights of the world citizen. However, Kant seems to suggest that “citizens of the world” may include individuals, states, peoples, and possibly other entities like transnational trading companies.23 The most prominent aspect of cosmopolitan right is the right to visit foreign countries without being treated with hostility. The qualifications and nuances to this right of hospitality were mentioned 21 VI:311 MM §43. 22 Many contemporary authors view Kant’s category of cosmopolitan right in a way that does not focus on peoples. On Kant and human rights, see the essays in James Bohman and Matthias Lutz-Bachmann, eds., Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal (Cambridge, Mass: The MIT Press, 1997); I share the opinion of those who think that this volume generally does not adequately capture what is special about Kant’s category of cosmopolitan right. For an argument on expanding cosmopolitan right to include the right to membership, see Seyla Benhabib, Another Cosmopolitanism, ed. Robert Post (Oxford: Oxford University Press, 2006); Ibid., The Rights of Others: Aliens, Residents, and Citizens (Cambridge: Cambridge University Press, 2004). Many argue that Kant’s category of “cosmopolitan law” can be expanded beyond the limited right of hospitality to the institutionalization of human rights; see for example, Pavlos Eleftheriadis, "Cosmopolitan Law," European Law Journal 9, no. 2 (2003): 241-63; Pauline Kleingeld, "Kant’s Cosmopolitan Law: World Citizenship for a Global Order," Kantian Review 2 (1998): 72-90. For a contrast between Kant’s limited notion of hospitality and an unconditional hospitality, see Jacques Derrida and Anne Dufourmantelle, Of Hospitality (Stanford, Calif.: Stanford University Press, 2000). 23 In the Metaphysics of Morals, Kant says that “all nations stand originally in a community of land…” and speaks of “thoroughgoing community of all nations on the earth that can come into relations,” and that each has the right to offer commerce with each other. Kant calls this “cosmopolitan right” since “it has to do with the possible union of all nations with a view to certain universal laws for their possible commerce…” English translations sometimes substitute “peoples” instead of “nations.” VI:352 MM §62 (underline added, italics in original). Peter Niesen writes that some authors, like Otfried Höffe, have “taken the ontological plurality of the candidates for cosmopolitan rights to an extreme, claiming that we should distinguish between at least four categories of cosmopolitan citizens, namely human beings, states (as collectives of persons), groups and organizations of civil society, and, finally, economic corporations.” Niesen, "Colonialism and Hospitality." Niesen is citing Otfried Höffe, Wirtschaftsbürger, Staatsbürger, Weltbürger: Politische Ethik Im Zeitalter Der Globalisierung (Munich: Beck, 2004), 151-3. Waligore 9 briefly in the introduction above.24 Briefly, Kant sees the right to visit as a right to seek commerce and interaction, but not a right to impose commerce on unconsenting others. The consent of the Natives is required for interaction beyond the contact involved in asking for more extensive interaction. A visitor has the right not to be turned away if this would cause one’s destruction. The consent of the Natives is not required in such dire situations. However, one does not have the right to be treated as an honored guest. Kant’s strong requirement of consent required that would-be settlers either gain the consent of Native peoples or settle very far away from Native lands so as not to disturb their use of the land. As I asked above, what gives Native peoples the right to claim such a large exclusive portion of the Earth? As we will see in the next section, Kant’s theory of property is in tension with his claims in cosmopolitan right. 2. Private Right and Property Kant outlines a theory of property in the section on private right in the early part of the Metaphysics of Morals.25 Private right involves principles that may be derived though the use of reason; principles of public right involve public promulgation of laws. Kant says that property relations involve the right-bearer’s ability to exclusively use an object, and corresponding duty on all others to respect the owner’s property. If I declare: “this item is mine,” I am saying that others are obligated not to use that object without my consent. If the purported property 24 I have discussed them in detail elsewhere. See Timothy Waligore, “Cosmopolitan Right, Indigenous Peoples, and the Risks of Cultural Interaction,” Public Reason: Journal of Moral and Political Philosophy 1:1 (February 2009). 25 The literature on Kant and property is extensive. For a sampling, see Katrin Flikschuh, Kant and Modern Political Philosophy (Cambridge: Cambridge University Press, 2000); B. Sharon Byrd and Joachim Hruschka, "The Natural Duty to Recognize Private Ownership: Kant's Theory of Property in His Doctrine of Right," University of Toronto Law Journal 56 (2006); Brian Tierney, "Kant on Property: The Problem of Permissive Law," Journal of the History of Ideas 62, no. 2 (2001): 301-312; Jeremy Waldron, "Kant's Positivism," in The Dignity of Legislation (Cambridge: Cambridge University Press, 1999); Robert Pippin, "Mine and Thine? The Kantian State," in The Cambridge Campanion to Kant and Modern Philosophy, ed. Paul Guyer (Cambridge: Cambridge University Press, 2006). Waligore 10 right is actually acquired through unilateral action, this seems problematic, as all others acquire onerous duties simply through one person’s will.26 For Kant, a property right is a relation between persons with regard to a thing, not the relation between a person and an object. A property right cannot be a direct relation between a person and a thing. Property rights cannot be justified by saying that the thing itself owes an obligation to its original owner.27 Things cannot have obligations. It may be permissible to use the language of a ‘right to a thing’ in a picturesque way. Kant does so, and I will do so here. But for Kant a right to a thing cannot be thought of a direct relation between a person and a thing, as it would be “absurd to think of an obligation of a person to things or the reverse…”28 Property relations are mediated by human relations and obligations. Kant says that it be would be absurd to think that the thing itself remained under obligation to return to me, as the first possessor, even after it had left my hands. This would be to think of my right to a thing as if there existed “a guardian spirit accompanying the thing, always pointing me out to whoever else wanted to take possession of it and protecting it against incursions by them.”29 For Kant, then, Native peoples could not get very far by claiming that outsiders cannot use their land merely because the land has a duty to Native Americans.30 26 Even if property rights were to fall short of full ownership, they still may involve onerous duties that all others must follow. On the problems with onerous duties being imposed unilaterally, see Jeremy Waldron, The Right to Private Property (Oxford: Clarendon Press, 1990), 266-271; Ibid., "Kant's Positivism," 53, 177 fn43. 27 VI:260 MM §11. 28 VI:260 MM §11. 29 VI:260 MM §11 (emphasis in original). 30 The situation requires slightly a different analysis if we refer not to the duty of the land to Native Americans, but Native Americans’ duty to tend to the land. In addition, there are alternative approaches to property rights based on property becoming part of one’s person. This follows a tradition of Hugo Grotius and Samuel Pufendorf, who also spoke about the internal suum (what is internally mine) and its extension into the external suum (what is external mine). See Stephen Buckle, Natural Law and the Theory of Property: Grotius to Hume (Oxford: Clarendon Press, 1991). John Simmons has offered a Lockean approach whereby acquisition involves the extension of one’s person, or rights, into the world. Simmons does not rely on the idea of a mere corporeal act, but on the pursuit of projects. See A. John Simmons, The Lockean Theory of Rights (Princeton, N.J.: Princeton University Press, 1992), ch. 5. A more Hegelian approach to property says that people extend their personhood over objects. Margaret Jane Radin has developed work in this vein. See Georg Wilhelm Friedrich Hegel, Hegel's Philosophy of Right, trans. T. M. Knox, New ed. (London: Oxford University Press, 1967); Margaret Jane Radin, "Property and Personhood," Stanford Law Review 34, no. 5 (1982): 957-1015; Waldron, "What Is Private Property," ch. 8. Waligore 11 If property rights entail such potentially onerous duties, why should there be any property rights at all? Kant reasons that people must be able to own property; his complicated reasoning seems to stem from the great importance Kant places on freedom. In the introduction to the doctrine of right, Kant says that when rights are conceived of as involving “(moral) capacities for putting others under obligations,” rights are divided into two types: innate and acquired.31 “An innate right is that which belongs to everyone by nature, independently of any act that would establish a right; an acquired right is that for which such an act is required.”32 For Kant, there is only one innate right (or original right), and this right is freedom: “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, is the only original right belonging to every man by virtue of his humanity.”33 This one innate right of freedom includes within it these aspects: innate equality, being one’s own master and beyond reproach before performing any acts, and being authorized to do certain harmless things to others. Innate equality says that other humans cannot bind you more than you can bind them.34 A human being has the quality of initially being his own master and also the quality of initially being respectable (beyond reproach), since he cannot have wronged anyone before any juridical relevant acts have been performed.35 The final aspect of the innate right to freedom says human beings are authorized “to do others anything that does no in itself diminish what is theirs, so long as they do not want to accept it [annehmen].” 36 Kant’s example is communicating one’s thoughts. Even if I communicate a lie (an intentional untruth) to someone else, I do not necessary diminish what is theirs. By my communication, I do not force them to accept this lie. It is up to them whether to believe the lie or not. While the doctrine of virtue forbids all lying, the doctrine of right only forbids a certain type of lie, a lie 31 VI:237 MM “Division of the Doctrine of Right.” 32 Ibid. 33 Ibid. 34 Innate equality consists of “independence from being bound by others to more than one can in turn bind them…” VI:237/38 MM “Division of the Doctrine of Right.” 35 VI:238 MM “Division of the Doctrine of Right.” 36 VI:238 MM “Division of the Doctrine of Right.” Waligore 12 that bears upon (or violates) rights. An example of this would be the “the false allegation that a contract has been concluded with someone, made in order to deprive him of what is his…”37 Kant extends the right of innate freedom in his discussion of how freedom is to operate in the world. External or outer freedom involves the ability to accomplish one’s ends in the world.38 I might move my arm and pick an apple for the purpose of nourishment. Kant says that if I have an apple in my hand, someone may not snatch that apple from me. If they do, they diminish what is internally or innately mine, my freedom. So the innate right to freedom in effect extends to a “right” to bodily integrity. Being one’s master, presumably, includes being able to use one’s internal capacities and bodily powers for (permissible) ends. Absent a wrongdoing, someone is not authorized to deny me the ability to be my own master. This, in effect, is what he would be doing if he assaulted me. Our bodies are so connected with our person, that others use of our physical members without our consent would wrong us. My ability to exercise freedom in the external world would be affected. Bodily integrity is an extreme case of this. Our body is always attached to our person in this world. This right is implicitly extended further by Kant, to cover not just objects that we are permanently in physical possession of, but objects we are temporarily in physical possession of. Kant says that if I have an apple in my hand, someone may not snatch that apple from me. If they do, they diminish what is internally or innately mine, my freedom. Similarly, if I am on my resting place, someone may not drag me away. However, even such wrongs require action in the external world, I am thereby deprived of any external object that is mine. So far we have only been talking about physically action that affect innate belongings, or what belongs to me internally (namely, my freedom). Being immune from having an apple snatched from your hand is not the same as having the right to put the apple among your external belongings; that is, it is not the same as being able to put down the apple, and others having a duty to not use the apple without my consent. However, Kant also believes that it is possible to acquire external 37 38 VI:238 MM “Division of the Doctrine of Right.” This interpretation may be colored by reading Kant through Johann Fichte’s views of right. Johann Gottlieb Fichte, Foundations of Natural Right: According to the Principles of the Wissenschaftslehre, ed. Frederick Neuhouser, trans. Michael Baur (Cambridge: Cambridge University Press, 2000). Waligore 13 belongings, to have something external as mine. To have an object as mine means that I am so connected or bound to the object that someone would wrong me if they used it without my consent. In particular, Kant wants to show it possible for me to be wronged even if I am not in physical possession of an object. Kant postulates that it “is possible to have any external object of my power of choice as mine, that is, a maxim by which, if it were to become law, an object of choice would in itself (objectively) have to belong to no one (res nullius) is contrary to right.”39 He calls this the “juridical postulate of practical reason.” If acquiring property rights were not possible, these objects would be put beyond the use of anyone. However, how would this occur? It is not in the nature of things to necessarily be unowned. Kant seems to believe that willing one’s ends, and hence outer freedom, requires the exclusive use of objects. Only with a secure domain that is exclusively ours may we be sure we may accomplish our ends. Given the importance of freedom, Kant says that property rights must be possible despite the duties they impose. Perhaps more accurately put, there can be no absolute duty to use objects as our own, because who would put those objects beyond all possible use? If it were held to be incompatible with the universal principle of freedom (that is, that my action or status be compatible with everyone else’s), then freedom would be depriving itself of the use of things. To say not allow ownership would be to put some thing beyond all practical use. However, freedom is formally compatible with the use of objects in the external world. This would be inconsistent of outer freedom. So the postulate says it must be possible to have something as mine or yours. The inconsistency of outer freedom with itself if it were to not allow of not allowing any property rights results in a permissive law (lex permissiva). Permissive laws, in general, allow us to do what we otherwise would not be able to do.40 This permissive law “gives us an authorization that could 39 VI:246 MM “Postulate of practical reason with regard to rights.” Kant’s reasoning here is obscure and complicated. For further discussion, see especially Flikschuh, Kant and Modern Political Philosophy, chs. 4-6. 40 For references to “permissive law” in the introductory sections of The Metaphysics of Morals (MM), see: VI:223 MM “Preliminary Concepts of the Metaphysics of Morals (Philosophia Practica Universalis)” (pages 377-78 of Gregor’s edition). In the Doctrine of Right, or Rechtslehre, see: VI:246-247 MM; VI:276 MM §22; VI:277 MM §23. In the Doctrine of Virtue (DV), or Tugendlehre, see: VI:426 DV §7; VI:453 DV §30. In Perpetual Peace, see VIII:348 PP (footnote to sixth preliminary article; page 231 in Gregor’s edition); VIII:380 PP (footnote to VIII:373 Waligore 14 not be got from mere concepts of right as such, namely to put all others under an obligation, which they would not otherwise have, to refrain from using certain objects of our choice because we have been the first to take them into our possession.”41 But the permissive law, which allows property rights for the sake of not making freedom impossible, also implicitly sets limits on permissible acquisition. Property rights are problematic because they seem to put all others under an obligation through the unilateral will or action of the person who claims the item first, which seems inconsistent with universal freedom. It is untenable to say that unilateral declarations of (purported) rights are never subject to rational scrutiny and difficult to see how unilateral will can bind, especially where one person imposes (potentially great) obligations on all others, through her own decision.42 Even a bilateral will is not enough to bind those others who are not party to the contract between two persons. The obligations property rights impose should be reciprocally justifiable to all, or take into account all interests. In Kant’s language, the obligations must proceed from a common will: an “omnilateral will” or the “will of all.” In §8 of the Rechtslehre, Kant says that respect for property rights unravels without a common will to bind us.43 Kant says that I am not under obligation to respect the belongings of others who do not give me a reciprocal assurance that they will respect mine. I am bound to respect property rights through a universal rule requiring reciprocity. I am not under obligation to refrain from encroaching on others’ belongings if I am not offered an assurance that they will not encroach on mine. Kant says that this assurance requires a common and powerful will. The reason, I think, the assurance must come from a powerful will is that my property rights cannot be made to depend on your continued good will or your opinion about what is right. An assurance requires more than that. The will must be common for it to legitimately bind both of us. I can only say you are bound to respect my possessions if I presuppose there is a universal and reciprocal rule that everyone (including me) should respect other’s possessions. PP, in Appendix I. “On the disagreement between moral and politics with a view to perpetual peace”, page 343 in Gregor’s edition). 41 VI:247 MM “Postulate of practical reason with regard to rights.” 42 Waldron, "Kant's Positivism," 53, 177 fn43. 43 VI:255/56 MM §8. Waligore 15 Otherwise, how could my unilateral declaration of what is mine possibly bind you to perform potentially onerous duties? You would throwing away your freedom for nothing, if you were dependent on my choice. Further, we must be assured that in controversies, this view of right has power. (Indigenous peoples understand very well how unreliable merely good will is.) I cannot be dependent on your choice about whether to follow this. From this, Kant gives a corollary that conclusive property rights are only possible in the civil condition. He says that if it must be possible to for individuals to have exclusive and private use of objects (which Kant postulated as the case earlier), then we must enter into a civil constitution with those with whom we could dispute about rights. The logic of §8 does not seem promising for Native peoples, who want to claim property rights vis-à-vis outsiders, with whom they do not already share a common and powerful will. Moreover, if they may only claim property right in the civil condition, this requires that before their property rights are respected, they must form European style institutions. Indeed, they may need to form these institutions not just among themselves, but with (neighboring) settlers, so that they share a common will with all whom they can come into conflicts about rights. Worse, this common will needs to be “powerful” for property rights to be respected. Native peoples may be subject to domination in the context of such “shared” institutions.44 More promising, perhaps, is the logic in the following section, §9, where Kant discusses how property rights may be acquired even before the state. Kant says that provisional property rights, though not conclusive rights, are possible in the state of nature. Merely claiming to have acquired property by taking possession involves a unilateral action, but a possessor who is ready to enter into a civil condition “resists with right” any persons who are not willing to leave the state of nature and who try to take away his possession.45 The will of all these others is unilateral, because they assert that the lone person is under 44 For a discussion of how we might investigate whether Kant’s views on race have a connection with Kant’s views on European imperialism, see Charles Mills, "Dark Ontologies," in Autonomy and Community: Readings in Contemporary Kantian Social Philosophy, ed. Jane Kneller and Sidney Axinn (Albany: State University of New York Press, 1998), 164 fn28, 38, 63-64 fn24. 45 VI:257 MM §10. Waligore 16 an obligation to give up his possession. The claimant ready to enter into the civil condition has comparatively rightful possession (a provisional property right) against those not willing to leave the state of nature, because she has physically possessed an object with the “rightful presumption that it will be made into rightful possession through being united with the will of all in a public lawgiving, and in anticipation of this holds comparatively as rightful possession.”46 Provisional property rights are legitimate because, and only if, their possession is in accord with the possibility of a future civil state.47 Kant lays out a method for the acquisition of property rights in the state of nature, a method that has unilateral moments. In the first moment of acquisition of external objects, this involves an act by one person (apprehension of the object in space and time as the first occupier). The second moment also involves an act of possession and the giving of a sign of my will that this object is to be mine. This declaration is unilateral, but it involves reference to others. It seems that the declaration must in some sense be public. Already here we have the question of what counts as a declaration, and whether it presupposes public standards. The third moment involves appropriation of the object proceeding from a general united will, or more accurately, the idea of general united will that will actually legislate in a future civil condition. The first two alone would not be sufficient to bind others. The first gives no sign to others about their supposed obligations. The second may allow others to understand what is being claimed, but why should this claim be taken seriously? However, if a general united will produces a rule that says that the first occupier who declares himself to be the owner gets to be owner, there is a unilateral declaration of one’s will involved, but it is allowed and sanctioned by the general will in idea. His appropriation is taken “as the act of a general will (in idea) giving an external law through which everyone is bound to agree with my choice.”48 The last step means that the original acquisition, though through a unilateral will, is in accordance with the will of all because it looks forward to a future civil 46 VI:257 MM §9. 47 VI:257 MM §9. 48 VI:259 MM §10. Waligore 17 condition, and so appropriates through the idea of the general will that will become actual in the civil condition. The idea of provisional rights in the state of nature may seem to provide hope for Native peoples in claiming property rights outside of the context of a shared state. However, as I discuss in the next section, certain Native peoples face special problems in invoking provisional right, since they do not fulfill the criteria of desiring to form a European-style civil state. 3. Applying Provisional Right at a Global Level—The Problem Restated Given Kant’s conception of property rights, it is unclear why cosmopolitan right for travelers is so limited and why Native peoples’ rights to control their territory are so strong. If Kantian property rights can conclusively exist only in a civil condition and a civil condition does not exist between Natives and would-be settlers, then Kant’s theory of property means that Native peoples’ property rights are, at most, provisional, at least vis-à-vis outsiders. The will of many in one area is not the will of all in the whole world. A bilateral or even multilateral will is not enough to bind all others.49 Why, then, must outsiders respect the possessions of Natives as provisional property rights, even when Natives refuse to enter into a civil condition with the settlers and are not looking forward to such a civil condition? Furthermore, some local inhabitants may not have formed a civil condition even with other locals. Kant says that tribes do not constitute states, but live nearby in a state of nature.50 These Native peoples may not even have conclusive private property rights (in land at least) vis-à-vis other local inhabitants. Native property rights, however, can also be thought of as collective property rights or territorial rights. As discussed above, Kant postulated a permissive law (lex permissiva) allowing individual persons to acquire property, even though such acquisition involves the unilateral impositions of onerous duties on 49 Compare Rousseau: “Rather, since the forces of the city are incomparably greater than those of a private individual, public possession is by that very fact stronger and more irrevocable, without being more legitimate, at least to strangers.” Jean-Jacques Rousseau, On the Social Contract in The Basic Political Writings, ed. Donald A. Cress (United States of America: Hackett Pub. Co., 1987), 151, Book I, Chapter IX. 50 Kant refers to citizens of a state not mixing “with those may live near them in a state of nature, whom they regard as inferior; the latter (savages), however, for their own part consider themselves superior because of the lawless freedom they have chosen, even though they do not constitute states but only tribes.” VI:343 MM §53. Waligore 18 others. Just as individual persons need property rights for their freedom, it seems that a permissive law allows peoples to appropriate collective property or territory in order to exercise their cultural or collective freedom.51 Individual persons, or a people as a whole, require a public space and territory to continue their way of life, to engage in democratic self-rule, or to allow for private freedoms. If freedom is to be possible, a people has to unilaterally appropriate a territory rather than wait until it gains permission from all persons and peoples in the world. In so extending Kant’s theory of property to collective property rights, Native peoples’ property rights are, at most, provisional. How does a local, provisional contract bind outsiders who are not party to any explicit agreement, especially when their interests were not taken into account in the original contact? Kant’s social contract, of course, never actually took place but is instead an idea of how political society formed. His idea of the social contract concerns what members of a society would not have consented to in forming the society.52 This means that no reference to the Native peoples’ earlier actual consent can be used to justify a requirement that the settlers must obtain the Native peoples’ actual consent now. Apparently, reliance on treaties as sources of rights are therefore suspect, if not ruled out of court. Kant attempts to justify certain unilateral acts of appropriation by making reference to an omnilateral will and how the provisional property rights acquired are consistent with a possible future civil condition. Even if we grant that Kant’s justification of provisional property rights works when we are talking of property rights among local persons in one local territory in the state of nature, it is hard to see how this logic applies beyond the domestic state level. Why should a Native people be able to unilaterally appropriate a large portion of the Earth, from which future visitors are bound to refrain from choosing to enter without the Native people’s consent? The original unilateral acquisition results in 51 Seyla Benhabib makes a similar claim about Kant’s permissive law, but only in regard to the acquisition of territory by a “republic.” It not immediately evident whether Benhabib means to exclude non-state peoples and nonrepublican states. Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens (Cambridge: Cambridge University Press, 2004), 34. 52 VI:316/17 MM §47. Waligore 19 provisional property and is justified only because it looks toward a civil state, so it is not clear how Native peoples can adopt this provisional status as a defense. There is a major problem here. If Native peoples say that their unilateral claims (as a people) are justified on these grounds, it is not clear what civil condition they are looking forward to. After all, a nearby civil community that includes the settlers is the very thing that they are spurning. Are they looking forward to a united global will of all—and if so, how? Kant says, “acquisition will always remain only provisional unless this contract extends to the entire human race.”53 Kant is referring to the original contract that founds a civil state. Are all property rights only provisional until there is a global state? Kant indicates that some form of a rightful condition can exist in international right without a world state.54 The same may be true of a global civil order. In whatever manner a global civil condition is defined, one question arises: Do Native peoples who want to claim collective property rights against the world have a duty to engage in relations with outsiders to help build a global community? Do they have a duty to help found a cosmopolitan constitution? Kant’s proximity principle says that we have a duty to come to terms with those with whom we are unavoidably side-by-side. At the domestic level, local inhabitants have a duty to leave the state of nature and enter into a civil condition. In the domestic proximity principle, this duty is not optional but obligatory. In addition, other people in the area can force them to enter into a civil condition, even against their individual choice; Kant’s social contract can be valid without actual signatures or actual consent. 53 54 VI:266 MM §15. The question is whether Native peoples even aim at some form of rightful condition, even a non-ideal one. Whether or not Kant’s ideal is the world state, he states in Perpetual Peace that an international federation is a type of rightful condition. “Now we have seen above that a federative condition of states having as its only purpose the avoidance of war is the sole rightful condition compatible with the freedom of states.” Kant may simply think that this is the best we can do in international “private right,” so the federative union may not be the “right of nations as such.” VIII:385 PP. In the Metaphysics of Morals, Kant says starkly, “perpetual peace… is indeed an unachievable idea.” Kant says that all rights “are merely provisional” before “a universal association of states (analogous to that by which a people becomes a state)”; only there “can rights come to be hold conclusively and a true condition of peace come about.” Still, Kant says that it is a duty to work to approximate this condition in an association of several states. VI:350 MM §61. So property rights seem to be always provisional. However, Native peoples face the further problem that it is not clear if they are even striving towards any rightful condition, however non-ideal. For an entry in the immense literature about whether Kant’s principles require a world state, see Georg Cavallar, Kant and the Theory and Practice of International Right Cardiff, (Cardiff: University of Wales Press, 1999), ch. 8. Cf. Thomas W. Pogge, "Kant's Theory of Justice," Kant-Studien 79 (1988). Waligore 20 The original contract for a society is an idea that achieves reality in a civil condition—a state. To the extent it does not achieve reality, it provides a test of legitimacy for the actions of the government. If a people could not have possibly agreed to something, then an action fails the test of the original contract. If the original contract is hypothetical and can be coerced, why must agreements between settlers and Native peoples to share a civil state take the form of an actual, voluntarily signed contract? Cannot Native peoples be forced to enter into some form of civil union with the settlers? If Native peoples say they are not obligated to enter a form of civil union with the settlers, then it appears that there will be no future civil state in which the two groups share membership and common will. (If the Native peoples are non-sedentary, there may not be any future civil state.) If respect for property rights must proceed from a common will, then why do the settlers have to respect the Native people’s property rights? The original contract secures only local property rights and is a contract covering a limited number of persons. We can call it an omnilateral will, but it does not embody a truly omnilateral will, which would represent the will of all persons in the world. A merely “local” omnilateral will represents only the will of all persons in a local territory, not outsiders. When outsiders travel to distant lands and demand that their interests be taken into account, it is suspect to appeal to a local “will of all” that never included all persons. Suppose that Natives can legitimately refuse to enter into a condition of domestic civil right with the settlers. Their relationship still must be governed by principles of right, not by violence. The Natives presumably interact with settlers under the terms of the category of cosmopolitan right. In this relation of cosmopolitan right, rather than domestic civil right, the Natives relate to the settlers not as members of the same state, but as peoples to individuals or as peoples to peoples. In this relation of cosmopolitan right, the Natives would seem to be obliged to take into account the setters’ interests when making claims of exclusion, in anticipation of a global general will. If they do not act in accord with this global general will, it seems they would lose the favor of the permissive law that supports their unilateral acquisition of land. In discussing individual property rights, Kant noted that the claims of those who are willing to leave the state of nature are superior to the claims of those who not willing to leave. The former do not need to Waligore 21 respect the claims of the latter. The domestic proximity principle says that the former can even use force against the latter to make them leave the state of nature and enter into a civil condition. The proximity principle is a general principle, requiring us to come to terms with everyone whom we are side-by-side. It is clear how we can be said to be unavoidably side-by-side with those in our local neighborhood. Are we unavoidably side-by-side with those in our global neighborhood? Is there a strong “global” proximity principle? Do we a duty to come to terms with all people? Is such a duty non-optional and coercive, like the one mandated by the domestic proximity principle? Taken too far, this logic becomes a new justification for colonialism. How can the need to provide a justification for exclusion be reconciled with, or balanced with, the need to prevent imperialism? Resolving this tension is important to avoid such extremes. The logic of Kant’s theory of property in private right, the first part of the Rechtslehre, seems to leave Kant without a defense for his endorsement of extensive rights for Native peoples. Kant’s view of settlement says that travelers cannot settle on Native land without their consent. But if property rights are not conclusive until there is some sort of omnilateral will worldwide,55 why must the settlers respect individual property rights of Natives or the Native people’s collective rights to their territory? Nonetheless, Kant is quite explicit that even if the Native peoples are savages and even if they “hold out no prospect of a civil union,” settlers may not use force to establish a civil union with them: Lastly, it can still be asked, whether, when neither nature or chance, but just our own will brings us into neighborhood of a people, that holds out no prospect of civil union with it, we should not be authorized to found colonies, by force if need be, in order to establish a civil union with them bring them these human beings (savages) into a rightful condition (as with the American Indians, the Hottentots and inhabitants of New Holland); or (which is not much better), to found colonies 55 “But 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.” VI:266 MM §15. Waligore 22 by fraudulent purchase of their land, and so become owners of land, making use of our superiority without regard for their first possession.56 He concludes, “[I]t is easy to see through this veil of injustice…. Such a way of acquiring land is therefore to be repudiated.”57 But this “injustice” cannot be simply the use of force in setting up a civil union, because that is justified, to Kant, at the domestic level. Kant says, in the section on cosmopolitan right, that the colonists are like revolutionaries and that colonization leaves a “stain of injustice” that cannot be erased. But if the Natives are savages and the colonists are not overthrowing an existing civil state, what rightful condition is being overthrown? If anyone has a comparative advantage in terms of right, it would be the settlers, who at least want to set up a civil condition. In contrast, Kant describes savages as themselves stubbornly valuing their “lawless freedom.”58 In the section on property rights, Kant says that one cannot generally put others under obligations by her own unilateral will, but in the section on cosmopolitan right, Kant says that would-be settlers are bound to respect the Native people’s previous unilateral collective appropriation of the land, even though the settlers never agreed to it. In short, one can claim provisional right if looking forward to a united will of all, but it is not clear who is included in “all.” In section 4, I consider how the Natives and the settlers might reason differently outside of the context of shared institutions. I ask how the problems of disagreement that give rise to need for the state might apply in the domain of cosmopolitan right. I explore this option, though in section 5, I will move beyond this to advance a solution to the problem just re-stated. Before presenting that solution in section 5, it is worth first considering in section 4 a few reasons why Native peoples and settlers may be able to resolve their disputes, and address the concerns above, without forming a civil state. 56 VI:266 MM §15. 57 VI:266 MM §15. 58 See VI:343 MM §53. Kant also remarks on the attachment of nomadic peoples to their way of life, which lacks fixed property. See Immanuel Kant, Anthropology from a Pragmatic Point of View (Carbondale, Ill.: Southern Illinois University Press, 1996), 176, VII:268-69. Waligore 23 4. Disagreements in Cosmopolitan Right: Native and Settler Perspectives Given that there is no state at the global level, how are disputes to be settled in the arena of cosmopolitan right? In the section of private right earlier in this chapter, I showed how, for Kant, disagreements about the boundaries of claimed property rights leads to the unraveling of obligations to respect others’ claimed rights in the state of nature. This analysis suggested that disagreement about property rights could lead to the need for positive law to settle disputes.59 In the local context at least, this meant a powerful and common will. It is not enough that we each try to reason through universal principles. Our attempts to universalize differ. There is a need for publicly promulgated positive law or standards to settle matters. The solution at the level of domestic right is the establishment of a state. When talking about disagreement, Kant explicitly limited himself to disagreement about the application of the principles of private right. When Jeremy Waldron discusses this problem of disagreement, he thinks that once we realize there are disagreements at the level of application, we realize that there is also inevitably disagreement at the level of principles. In this section, I do two things. First, I extend and re-apply Waldron’s analysis to the level of cosmopolitan right. Second, I argue that Waldron’s analysis does not take into account how Kant does not speak of mere disagreement; Kant importantly talks about differing levels of certainty about different judgments. This is important for cosmopolitan right, as Kant allows us to rely on unsure judgments in some cases; he requires a level of certainty that is not humanly possible in cases where denial of hospitality would lead to the destruction of others. I now turn to discussing cosmopolitan right and disagreement. At the level of cosmopolitan right, I suggest that there seem to be several possible areas for disagreement: a) The idea we need principles of cosmopolitan right (in one case or generally) b) The spirit of cosmopolitan right (its schematic or problematic) 59 See the analysis in Jeremy Waldron, "Kant's Positivism," in The Dignity of Legislation (Cambridge: Cambridge University Press, 1999); Ibid., "Kant's Legal Positivism," Harvard Law Review 109, no. 7 (1996): 1535-1566. Waligore 24 c) The proper principles of cosmopolitan right d) The application of the principles of cosmopolitan right. How could the reasoning outlined above work beyond domestic right, beyond the level of the state? If disagreement is the problem that public law solves, how can cosmopolitan right be the solution? Even if you and I could magically agree on the proper principles of cosmopolitan right, others would likely disagree.60 The most promising starting point is to admit that universalizations may differ, but to still use cosmopolitan right to rule out rationales that do not adhere to any conceivable universalization. It would define a possible range of universalizations. This seems in accord with Kant’s definition of the original contract, which rules out things which no people could have been supposed to have rationally and freely agreed to. For this reason, Kant ruled out permanent hereditary nobility as something free people could not have agreed to.61 In this way, cosmopolitan right would provide a test of legitimacy, like the original domestic contract.62 The acceptable limits might be what I elsewhere call duties of hospitality.63 The problem remains that there are at least two possible sets of actors that may perform their own universalizations at the time of contact: the original settlers and the Native inhabitants. There might be a large gap between how they reason. There is not a single definitive judge in cosmopolitan right. One option is to say that because of this disagreement, we leave it up to the choice of the Native inhabitants, except where the actions are so extreme that no one could be certain that the decision was justified. This first view takes the perspective of the Native inhabitants (or simply favors their interests relative to the settlers). This view says the Natives must offer (or at least be able to offer) a justification 60 Furthermore, there is room for disagreement about the conditions under which cosmopolitan right holds, and if your violations of cosmopolitan right causes my obligations under cosmopolitan right to weaken or vanish. 61 VIII:290 TP; VIII:297 TP. 62 I believe these contracts differ in important ways I cannot explore here. For example, the domestic original contract makes the existence of foundations and charities dependent of the opinion of the people. There is no right to have a perpetual foundation within a state. (Though compensation is owed to remaining members.) Does the global original contract say that polities are like charitable foundations, and that opinion may declare particular polities obsolete? I doubt even Jeremy Waldron would go that far. See VI:367 MM “On the right of a state with regard to perpetual foundations for its subjects.” 63 See chapter 1 of my dissertation. Waligore 25 that minimally takes into account the interests of all. Alternatively, they must be able to show why they do not owe that justification. A second view takes the perspective of the settlers (or favors the interests of the settlers more than the first perspective). This view says that the settlers must offer (or be able to offer) a justification for their actions that minimally takes into account the interests of all. As long as the settlers could offer a justification that meets minimal tests of universalization,64 then their actions are legitimate in a certain sense. Let us examine the two perspectives in more detail. 4.1. A Native Perspective. Let us look from the perspective of the Native inhabitants, or the perspective that favors their interests. Because a people’s control of a territory infringes on the original freedom of other humans, the Native inhabitants must provide some justification to those whose freedom they interfere with. The Native inhabitants must have taken into account the outsiders’ interests or the arrangements the Native inhabitants set up must take in some sense be justifiable because of the how outsiders’ interests are treated. It may or may not be the case that Native peoples have to actually themselves offer such a justification to the outsiders. Possible justifications for property rights could be because of survival (Locke’s answer) or that freedom requires being able to make use of objects for one’s own ends (Kant’s answer). When discussing individual property ownership, Kant’s allows individuals to own property even if this restricts freedom, because property rights are needed for freedom.65 Kant’s theory of property relies on the necessity of allowing appropriation through unilateral action. Is there an analogous need for an entire people to unilaterally appropriate a territory? Yes. Human beings are social animals that need to have social rules governing their interaction. A territory provides a space to work out a common life according to the people’s conception of happiness. There is a need to set up a local system of laws and regulations before a contract is concluded with everyone in the world. This system of laws would have jurisdiction over a territory, and others could not have actually 64 65 Or, if the test should be thought of as more than minimal, then that stronger test should be met. This is the lex permissiva. VI:257 MM §2 (MM §6 in the 1996 Gregor edition). See my analysis in the section on private right and property above. Waligore 26 (rather than hypothetically) agreed to this if they were on distant parts of the world. The distant others’ interests may not even have been taken into account in the initial formation. A. John Simmons says that dividing the world into states is needed for freedom, for reasons discussed by Kant in his sections on domestic civil right, and when talking about the need for public law. Freedom requires the formation of the state. Rights cannot be secured in the state of nature.66 To Simmons’ claim, we may add that societies based on customary law also usually require territory and space of freedom. Peoples have a freedom to engage in group practices, such as a nonsedentary way of life. Kant says that a hunting people may “[c]ertainly” resist encroachment by pastoral people, so long as they stay within their boundaries. “[S]ince as long as they keep within their boundaries the way they want to live on their land is up to their own discretion (res merae facultatis).”67 Sankar Muthu presents an interesting argument that human beings are in their essence cultural agents.68 In the Groundwork of the Metaphysics of Morals, Kant says that we should respect the “humanity” in others. He does not simply say we should respect their rational “personality,” and this may be important.69 Sankar Muthu suggests that Kant might have used “humanity” to refer to not simply the setting of moral ends through will (wille), but also to the exercise of the power of choice (Willkür).70 We owe respect not simply to the ability of humans to autonomously set moral ends for themselves. Human beings attach value and meaning to things. We also owe respect to the aspect of the humanity within them that sets ends 66 This leaves unanswered why all Native peoples should be protected. 67 VI:266 MM §15 (emphasis on “life” added). On “life,” see further VII:71 CF. 68 Sankar Muthu, Enlightenment against Empire (Princeton, N.J.: Princeton University Press, 2003), 136-7. I think Muthu takes this argument a bit too far. Muthu thinks that Kant believed that ways of life were incommensurable. I do think that Kant ranked different ways of life. I just think that Kant did not let his ranking of lives stop him from condemning colonialism as a matter of right. 69 Thomas Pogge, "The Categorical Imperative," in Grundlegung Zur Metaphysik Der Sitten. Ein Kooperativer Kommentar, ed. Otfried Höffe (Frankfurt: Vittorio Klostermann, 1989). I am not citing Pogge to support the references to culture in this paragraph. 70 Muthu, Enlightenment against Empire, 136-7. Waligore 27 in general. This might be seen as respecting either the individual or the group itself, depending on one’s interpretation.71 Just as human beings require a place to live on the earth, a shared cultural framework or way of life may require a place on the earth. This is also a type of human freedom, the exercise of the power of choice. It is a negative concept of freedom. As human choice, it is affected but not determined by sensible impulses. This is contrasted with animal choice, which is brutish and driven by impulse.72 Culture is not an animalistic impulse, but created through specifically human capacities. As such, cultural achievements deserve some respect, and should not be treated as if it they were worthless. The amount of respect they are owed may be debatable, but it is a serious matter that should not be ignored.73 This is especially so because to do so could disrespect the individuals who created that cultural way of life, and which continue to live out their life in that framework. Kant’s cosmopolitan right recognizes the cost of this division of the earth and provides for some minimal protections. Simmons says: “The world of civil territories potentially limits our freedom to be where nature or chance places us and thus interferes with our innate right to freedom. The force of the boundaries of civil territories, then, must be understood to be limited by laws of cosmopolitan right to permit the stranger to be where he finds himself – at least to be there temporarily and without fear of violence.”74 This recognizes that outsider’s interests must be minimally taken into account, even if it leaves unspecified what it means to minimally take into account outsider’s interests. 71 Compare Jürgen Habermas, "Equal Treatment of Cultures and the Limits of Postmodern Liberalism," The Journal of Political Philosophy 13, no. 1 (2005): 1-28; Sankar Muthu, "Justice and Foreigners: Kant's Cosmopolitan Right," Constellations 7 (2000): 23-45. Muthu indicates that Kant is respecting groups. Habermas is concerned with respecting individuals. 72 VI:213/14 MM “Introduction to the Metaphysics of Morals.” 73 Compare Waldron’s suggestion that there may be “something in the Kantian pursuit of happiness which is somewhat more rigorous and somewhat more worthy of respect than (say) the mere indulgence of appetites or the prudent satisfaction of inclinations.” Jeremy Waldron, "Moral Autonomy and Personal Autonomy," in Autonomy and the Challenges to Liberalism, ed. John Christman and Joel Anderson (Cambridge: Cambridge University Press, 2005). 74 A. John Simmons, "Human Rights and World Citizenship: The Universality of Human Rights in Kant and Locke," in Justification and Legitimacy (Cambridge: Cambridge University Press, 2001), 195-6. Waligore 28 Another way of putting this point, besides the language of minimally taking into account others’ interests, is to speak of how we must be certain before we take actions that destroy other human beings. Kant says that consent is required for prolonged interaction between visitors and Natives; the foreigner can be turned away “if this can be done without destroying him….”75 This provides a clue to Kant’s rationale. In Religion within the Boundaries of Mere Reason, Kant also speaks of the certainty required to destroy another human being. He is discussing the Grand Inquisitor who is persecuting people for not having the right brand of religion. Kant writes: But was he really as strongly convinced of such a revealed doctrine, and also of its meaning, as is required for daring to destroy a human being on its basis? That to take a human being’s life because of his religious faith is wrong is certain, unless (to allow the most extreme possibility) a divine will, made known to the inquisitor in some extraordinary way, has decreed otherwise. But that God has ever manifested this awful will is a matter of historical documentation and never apodictically certain. After all, the revelation reached the inquisitor only through the intermediary of human beings and their interpretation…the inquisitor would risk the danger of doing something which would be in the highest degree wrong and on this score he acts unconscientiously.76 In order to destroy a human being, to act like God, we need an utterly certain basis. I suggest that there is a difference between destroying a human being, rather than merely killing them or letting them die. When we take a life-ending action on the basis of animal instinct, this is a different manner than if we take it supposedly on the basis of morality or right. How can we say we may turn away a visitor and thereby destroy him? This is to deny them a place to exist on the earth, and to do this in accordance with the principles of right. Kant does not allow this destruction of the conditions of freedom. 75 VI:358 PP (underscore added) 76 VI:186 Rel (underscore added). Waligore 29 One possible basis in right that the Natives might claim in turning away a person, and leading to their destruction, is that this is their land. However, if Natives do not make any references to a community, including the original community of land, it is not clear how their claims are communicable to us. They may say that the permissive law allows whoever first possessed the land to take it. And Kant says that priority in time is the only condition for acquiring land that is compatible with right. The Natives might claim (if they are unjust Natives) that this is our land, because we established ourselves here first, without dispossessing anyone. However, it can never be known for certain who was the very first. Tzevetan Todorov says that the Spanish may have tried to convince Montezuma that the Spanish were the direct descendents of the dynasty that the Aztecs had deposed. Todorov suggests, perhaps fancifully, that this guilt complex had forestalled resistance on Montezuma’s part.77 Who was here first cannot be asserted with certainty, as it relies on “historical documentation” of property rights. What documentation is valid depends on the community. Furthermore, there is the “absolute possibility” that these historical proofs are in error.78 Native peoples are therefore not entitled to destroy visitors, in the manner of the Grand Inquisitor.79 This leads to some interesting ideas based on comparisons between Kant’s religious thought and his doctrine of right. First, just as Kant (for reasons we need not examine here) says that morality presupposes the possibility of the existence of God, Kant’s doctrine of right presupposes the possibility of the existence of property. The permissive law allowing property (and territorial) rights may be seen as akin to what the divine will (provisionally) authorizes.80 God allows the existence to be separate churches, with the result that the community of believers is divided. Similarly, the permissive law of property rights 77 Tzvetan Todorov, The Conquest of America: The Question of the Other, trans. Richard Howard (New York: Harper & Row, 1984), 56. 78 VI:187 Rel. 79 Kant himself does not write about this connection. 80 See Kant’s discussion of the permissive law in the section on the “juridical postulate of practical reason with regard to rights.” VI:257 MM §2 (§6 in Gregor edition). Compare to Kant’s statement: “Hence the existence of a wise governor of the world is a necessary postulate of practical reason” (italics in original). Immanuel Kant, "Lectures on the Philosophical Doctrine of Religion," in Religion and Rational Theology, ed. Allen W. Wood and George Di Giovanni (Cambridge: Cambridge University Press, 1996), 357, XXVIII:1012. Waligore 30 allows the land to be divided into private property, so that the original community of the Earth is divided.81 At the same time, Kant suggests that different churches are provisional vehicles and should strive to go back to being one church.82 Similarly, the claims of individual territorial entities may only be provisional and may only be legitimate so long as they look towards unity. Second, the claim that we were the first to occupy this land depends not on any rational supposition that all can divine through universal reason, but on a particular history. Property rights can be seen as akin to a religious text. Kant says that any historical faith requires a community of scholars who are trusted in their interpretations. Similarly, any political community based on history must also make their claims public and analyzable.83 This may present some problems for indigenous peoples.84 Nonetheless, it is important to emphasize that Kant seems to allow Native peoples the rightful capacity to turn away settlers for any reason short of causing their destruction. We may read Kant as being specifically concerned with someone so arrogant as to think they have God-like certainty, and may deny a person a place on the Earth, according to right. This says nothing about the relative sizes of the domains. This is not a claim that because we disagree, we need a state to solve our disagreements. It is a claim about that certain actions, involving the destruction of a citizen of the world, are impermissible because they are matters of right that we must be certain about before we do, but which we could never be certain about. Simply because we are not always absolutely certain does not mean we cannot act. Not all claims based on right require being certain.85 As free individuals acting in the world, we cannot avoid the 81 VI:267 MM §16. 82 VI:121 Rel. 83 VI:129 Rel. 84 On the use of oral testimony as evidence and overcoming other problems with communicating indigenous claims, see Angelia K. Means, "Narrative Argumentation: Arguing with Natives," Constellations 9, no. 2 (2002): 221-245. 85 Against this, in Religion, Kant does say “we ought to venture nothing where there is danger that it might be wrong…” Kant condemns the Jesuitical doctrine of “probabilism, i.e., the principle that the mere opinion that an action may well be right is itself sufficient for undertaking it.” VI:186 Rel. Waligore 31 potential for doing something wrong. Either way we face danger. Because I am here, and no one has a better claim to be the first occupant of this land, my claim can be presumed to be legitimate. An indigenous claim to be a prior occupant, or a party with relative title, may have a sounder claim than one based on first occupancy.86 First occupancy simply involves being the first to take possession without displacing anyone. Prior or relative title, as I understand it, involves being the earliest possible claimant who would not be displacing any existing prior claimant.87 Best of all may be a claim based on immemorial title, where the title stretches beyond memory. Certainly, there is a problem where memories differ. However, with historical injustice between European settlers and indigenous peoples, we remember who took what from whom, and who has prior title. On this analysis, Native title is based not on an absolute certainty about first occupancy. It is based in part on a normative order that a society created. Rather than prior occupancy, an indigenous people may claim title based on being a prior normative regime. They imbued value into the area as cultural agents who create a cultural order. Bare first occupancy by an individual may do nothing, but creating a society is another matter. Right should be concerned with prior normative orders not being displaced violently. If a third party can show that so-called “indigenous” peoples wrongly dispossessed them, then the prior party may have a claim to the land. However, simply because the indigenous peoples cannot demonstrate with certainty that they are the first does not mean they have no title. This title, in our relationship to them, might be treated as if it were as strong as a title based on first occupancy, at least so long as an earlier claimant does not credibly come forth. Property rights are uncertain always, but the fact of disagreement does not mean that all types of disagreement are the same. I posit that, for Kant, certain actions become more permissible based on the 86 On relative title, see Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge, Mass.: Harvard University Press, 1985). Perhaps it would be better to rely on title through time immemorial only. 87 I have found helpful Richard Epstein’s writings on relative title and on conquest. Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge, Mass.: Harvard University Press, 1985); Ibid., "Possession as the Root of Title," Georgia Law Review 13 (1979): 1221-1243. Waligore 32 level of certainty we have. This will become important as we discuss the settler’s perspective, to which I now turn. 4.2. A Settler Perspective. If we consider the settler’s perspective, and what arguments they must offer, the immediate possibility is that the settlers must minimally offer a justification that considers the interests of all. When the settlers, as outsiders, offer a justification for their action, they have to give some weight (or due weight) to the interests of Native peoples. The normative basis of Kant’s condemnation of colonization of the Native inhabitants is that Native inhabitants are not to be counted “as nothing.” Kant says: “When America, the negro countries, the Spice Islands, the Cape, and so forth were discovered, they were, to them [the Europeans], countries belonging to no one, since they counted the inhabitants as nothing.”88 What this suggests is that Kant is saying that outsiders have to give at least some weight to the interests of Native inhabitants. They cannot count for nothing. This is the minimum condition that needs to be satisfied. In many places, colonization in practice did not count Natives at all; therefore it is to be condemned, at least as it occurred there. This leaves open whether Kant’s view required a more extensive taking into account of Native interests (such as treating the Natives as equals, or equals in a more substantive fashion, or treating the Natives’ interests as privileged with regard to ‘their’ land). Kant describes the inhospitable behavior of the Europeans. But is this inhospitality integrally connected with the belief that these were ‘countries belonging to no one’? Or does Kant merely condemn the idea that the Native inhabitants did not count at all? Perhaps Kant is condemning the former only insofar as its rationale is the latter. Perhaps the two are separable. What may be important is not the issue of whether countries are seen as terra nullius (empty land), but the argument through which that conclusion is reached. On this view, the argument needs to take the form of considering the interests of all humans affected. 88 8:358 PP “Third Definitive Article for Perpetual Peace.” Waligore 33 One possible example of this type of argument is suggested by John Locke in chapter V of the Second Treatise of Government.89 Jeremy Waldron argues that at least Locke was offering an argument that purported to have an appropriate structure.90 Waldron says: “Even in his assertion that America is an unappropriated wilderness, Locke does not rest on European prejudice. He offers an extensive argument for this assertion, an argument that purports to take seriously both the commandments of God and the interests of all humans affected.”91 Waldron states that he is not saying that we should be convinced by Locke’s argument, or that the Native Americans should have been convinced.92 Waldron’s argument is instead that Locke’s intent in his mature thought was not to dehumanize Indians.93 In Kant’s language, we might say that Locke was not trying to “destroy” the Indians; he would have been in some sense destroying the Indians’ humanity, if Locke had counted them as nothing. So this leads us to this question (and Waldron does not say this): Must the settlers actually offer a good argument or simply try to offer a good argument? That is, must the argument only be of the required structure (purporting to take into account the interests of all), or must it actually do what it purports to do (take into account the interests of all)? Perhaps, from the settler’s point of view, all that is owed to the Native peoples is an argument of the appropriate sort, an argument that purports to be universal and offers a justification that attempts to take into account their interests and does not count them as worth nothing. However, this allows unserious, sham arguments. We should be concerned to prevent the abuse of moral language, which is harmful to the practice of morality.94 The settlers may not owe the right 89 John Locke, Second Treatise of Government, ed. C. B. Macpherson, 1st ed. (Indianapolis: Hackett Pub. Co., 1980). 90 See Jeremy Waldron, God, Locke, and Equality: Christian Foundations of John Locke's Political Thought (Cambridge: Cambridge University Press, 2002), 165f, esp. 68 and 70. 91 Ibid., 168. 92 Ibid., 169. 93 Waldron says: “[A] n argument which purports to respect equality has been produced — an argument which purports to pay attention to the interests of all, not just the colonists, but also not just the native Americans and which claims that cultivation makes everyone better off. We are not entitled to infer from the fact that Locke produced a universalist argument purporting to favor modes of subsistence familiar to us over modes of subsistence familiar to the native Americans that therefore he intended to have them treated as non-persons.” Ibid., 170. 94 Thomas Pogge and David Busch, "Terrorism: What's Morality Got to Do with It?," Encounter, May 21, (2006), http://www.abc.net.au/rn/encounter/stories/2006/1639840.htm. Waligore 34 answer, as we can expect disagreements about what is right. They owe at least a conscientious and serious answer. Abuse of moral language in one sphere is unlikely to be confined there. In a globalizing world, Kant says cosmopolitan right is not fantastic, because “the (narrower or wider) community of the nations of the earth has now gone so far that a violation of right on one place of the earth is felt in all…”95 The abuse of morality overseas in cosmopolitan right will eventually come back to affect debate in civil society, and thereby undermine domestic right. As Kant says, the three levels of public right must all be upheld, or the entire framework will collapse. The Europeans invoked suspect principles, and even suspect practices of reasoning in the process of justifying colonialism. This is what Kant calls a “veil of injustice” or Jesuitism. Europeans allowed their conscience to take a vacation and this might not have stayed confined to overseas matters. The legislative will of the mother state of the colonists may have been infected and come home to metropole. Or, a settler state may have its political debate over principles warped from the start.96 Kant may aim at the education and moral development of the human race, and argue that Jesuitical techniques (not necessarily the principles the techniques argue for) are detrimental to this. Jesuitical casuistry aims at making people feel safe through reliance on authority.97 In contrast, I think Kant tells people how you are unsafe if you go beyond these certain bounds of morality.98 It may be, 95 VIII:360 PP (italics in original, underline mine). 96 In VI:266 MM §15, Kant discusses how just their own “will” brings colonists in their neighborhood. I extrapolate from this. If this “will” is a legislative will, and it is based on a supposed authorization, then this type of logic may carry over, and infect, reasoning about other supposed authorizations of right. 97 Compare Vitoria’s introduction to his famous essay on the Indians, where he discusses relying on authority. Kant condemns any reliance on probabilism, a later specified Jesuit doctrine. I wonder if this might account for the difference between Vitoria and Kant. 98 We might (speculatively) interpret Kant to say that it matters more the way you approach these problems, rather than the specific conclusion you reach. One may have reason to avoid conclusions, at least until you remove all doubts about them, when this “seems to grant a greater indulgence than might be advisable to those who are very much inclined to abuse it.” VIII:385 PP (footnote). Kant is here giving mild criticism to Counselor Grave, whom he treats with deference and this and other works. Kant seems to take Grave seriously despite his position allowing dismembering of small states for the greater good of the world. Contrast this with Kant’s severe criticism of the Jesuitical school. Indeed, almost all of Kant’s condemnations of settlement seem to oppose Jesuitical reasoning, suggesting that Kant opposed a certain moral practice, rather than necessarily the conclusions of that moral practice. He may have been concerned about such a moral practice spreading around the world. With injustice being displayed elsewhere, this may undermine the basis for morality everywhere, even if the injustice is only, or mainly, the abuse of moral language. Kant may particularly dislike the idea that there can be an “authorization” for Waligore 35 however, that Kant has offered a moral code appropriate for the current context and stage of human development. He may be offering cosmopolitan right “as told to the children.”99 Perhaps it is best not to tell the children, or the young adults, which humanity is at this point, all of the exceptions to the rules. They may learn those exceptions later.100 However, I leave behind such wandering thoughts, and return to the settler perspective.101 settlement. Perhaps he may be interpreted as saying that morality does not condemn settlement, before we desire to specifically have our actions authorized by right, and claim to act on moral grounds. Only in that context, of caring about right, may we show injustice. This suggests how our morality might change depending on what we feel the need to justify. 99 Jon Elster once commented to me how he thought Kant’s rules were for children. I do not know if he thought Kant thought this or not. Nonetheless, it is an interesting way to view Kant’s approach to practical reasoning here. In Education, Kant writes: “Again, can a lie ever be justified by necessity? No, there is no single instance in which a lie can be justified. If this rule were not strictly adhered to, children especially would take the smallest excuse for a necessity, and would very often allow themselves to tell lies.” Immanuel Kant, Education, trans. Annette Churton (Ann Arbor, MI: University of Michigan Press, 1960), 104. On the other hand, there may be no experienced adults in this area. Dealing with cosmopolitan right may be beyond everyone’s experience, including Kant’s experience. We may all be children. 100 Against what I claim earlier, perhaps Kant did not condemn all forms of forcible colonization. Kant says that we should “repudiate” a certain way of acquiring land. VI:266 MM §15. This is not the same as saying colonization is always inappropriate. Kant does not exactly condemn colonialism directly. Rather, he condemns the manner in which it is done, and the arguments that are given for it. Perhaps (speculatively) we might read Kant to be a contextualist of sorts. He may be working on a moral code, concerned that others not abuse it. Or rather, his moral code may be a limited aspect of the full truth, and only party of what he chooses to (clearly) publicize. Indeed, the idea of cosmopolitan right is called a code (codex). VIII:360 PP “Third Definitive Article of Perpetual Peace.” This analysis, perhaps, would fit in with Thomas Pogge’s view of the categorical imperative and the dependence of acceptable universalizations on empirical conditions. Thomas Pogge, "The Categorical Imperative," in Grundlegung Zur Metaphysik Der Sitten. Ein Kooperativer Kommentar, ed. Otfried Höffe (Frankfurt: Vittorio Klostermann, 1989). 101 I wonder if Kant did not want to publicly declare that there were possible exceptions to cosmopolitan right because such exceptions were likely to be abused if unilaterally enforced. This seems to be why he calls Vattel, Grotius and Pufendorf “sorry comforters.” Kant says that their codes “are always duly cited in justification of an offensive war, though there is no instance of a state ever having been moved to desist from its plan by arguments armed with the testimony of such important men.” VIII:355 PP “Second Definitive Article for Perpetual Peace.” Perhaps it is not that Kant thinks that intervention is never permissible, but that he thinks that it is better not to mention the exceptions, as politicians will cite you only for the exceptions, and never follow your rules. I conjecture that Kant’s work may have obscure implications that allow for justifications only by those who deeply understand his work. In other words, he may have an esoteric doctrine. However, by this I do not mean he thought it should be kept hidden forever. Kant may have had ideas about what was lawful if a common power could enforce these rules. In the meantime, the conditions for publicity would allow its appropriate application. In this case the conditions for publicity include education. It is meant to be readable by those willing to honestly approach it. Perhaps Kant hopes that the only people who spend the time to understand him will either have good will or will develop good will through training. After all, a statesman merely interested in practical politics would hardly attempt to try to discover the hidden implications of Kant’s theory when other justifications and excuses are readily available. All in all, Kant’s cosmopolitan right may be cosmopolitan morality “as told to the children.” On how Kant said that we should not discuss certain topics of morality in front of children, specifically those dealing with exceptions, see Immanuel Kant, Education, trans. Annette Churton (Ann Arbor, MI: University of Michigan Press, 1960). Kant may have seen indigenous peoples as “children” and for that reason think that Europeans should not coercively rule them in a harsh Waligore 36 With regard to the Native peoples, the settlers have a high burden of proof, if they are potentially destroying the normative order (nomos) of the indigenous peoples. A major fault of the colonialists was that they placed little or no importance on protecting Native cultures. They were not concerned with their fragility, or how intervention might upset them. If they were so concerned, it was usually because they wanted to destroy them. Any reconciliation between Native peoples and the descendents of settlers should involve assurances that these interests will not be disregarded and will be given appropriate weight. An additional concern may be brought here.102 I should note that Kant’s cosmopolitan right, and his whole system of right also has a similar fault, if Kant allows unjust settlement to then create the conditions of unavoidable interaction and trigger the requirement to join (and be forced to join) the state. Any reconciliation based on cosmopolitan right will have to address this aspect of Kant by considering reparations for past violations of cosmopolitan right.103 To bring this section to a close, neither the settlers’ perspective nor the Natives’ perspective is perfect.104 However, I favor taking something like the Native peoples’ perspective as a baseline. Even if it is not right in itself to limit the freedom of movement, it is permissible to do so in order to establish local regimes that can locally regulate property and establish local domains where the local will of all who must interact exists. It is permissible to establish not only political orders of the European sort, but also customary orders. The latter should not be undervalued. If we originally have a right to be anywhere (before anyone owns anything), we no longer have this right to do so once the earth’s land is acquired. manner. Instead, Europeans should “teach” Native peoples through the “Socratic method” of drawing them out through commerce and communication. See Education, 84, 81. 102 So far I have speaking as if the Natives and settlers were first encountering each other. It may be that the concerns about destruction and certainty that I mentioned above have a role to play in considerations over reparations. Waldron may have this in mind when he says: “we must be sure that the entitlement (of the surviving person or group) that was originally violated all those years ago is an entitlement that survives into the present.” Jeremy Waldron, "Redressing Historic Injustice," 52 University of Toronto Law Journal 135 (Winter 2002) (underline added). However, it is unclear what gets weight here, such that we need to be so certain before destroying it. Is it the status quo? Is it simply whatever is at stake? If it is the former, then perhaps we do need to be certain about historical entitlements before we “destroy” present day lives. But if it is the latter, then one response (suggested to me by Thomas Pogge) is the following: Often, not trying to repair would lead to more destroyed lives than the effort to repair ever would. 103 Cf. Niesen, “Hospitality and Colonialism.” 104 For one, Kant’s duty of hospitality is too weak. Waligore 37 Still, we retain a right to travel to distant places. As Kant notes, the seas allow us to visit most all places in the world. The ‘permissive law’ sets limits to the appropriation allowed. There are still traces, as Simmons says, of the original right to go anywhere. The limits of the permissive law require hospitality where necessary. In private right, we decide based on what is right in itself. That is, each of us decides based on our judgment of what we see as right. In public right (at the domestic level), a court decides, but not necessarily in accord with what is right in itself. The court adopts certain rules regarding presumption so that it can guarantee property.105 There is no such court at the cosmopolitan level. However, cosmopolitan right is a condition of public right, and it is useful to see it as adopting a similar presumption. There is a presumption that visitors do not have the right to stay in the neighborhood unless necessity demands it, or consent allows it. They have the right to visit and be in the neighborhood only to allow for the brief encounter where they offer the possibility of future relations. In order to further develop support for the logic behind the Native’s perspective, I will further outline a reconstruction of Kant’s argument for why Native peoples may legitimately resist some types of interaction with others in the world. In the next section, I argue that Kant’s work suggests an argument that says that peoples are allowed to rebuff attempts at interaction in cosmopolitan right based on a distinction between the possibility, actuality and necessity of interaction. 5. A Provisional Solution: Being in the Neighborhood For Kant, why is the duty to leave the state of nature a coercible duty in a local domestic context, but not at the global level? My resolution of this puzzle will be that the strength and content of duties (or what they concretely mean) differ depending on the specified relational context of interaction, and whether the required interaction is a possible, actual, or necessary one.106 105 106 VI:297 MM §36. See further MM §§36-40. In the Critique of Pure Reason, Kant gives three categories of modality: Possibility – Impossibility, Existence – Non-existence, and Necessity – Contingency. Kant, Critique of Pure Reason (Cambridge: Cambridge University Press, 1998), 212, CPR A 80 / B 106. Waligore 38 Kant indicates that when it is the colonist’s “will,” and not “nature” or “chance,” that brings him into the “neighborhood,” the proximity principle requiring a civil state is not triggered.107 The fact that an outsider is currently near the local party in their neighborhood is not sufficient to say they are unavoidably side-by-side; the traveler can rightly be rebuffed entrance and forced to leave. (Hospitality takes care of situations in which she cannot leave.) The “unavoidably” in “unavoidably side-by-side” seems to take on a normative element here that makes reference to who was first in the neighborhood. Kant is clear that a savage does not wrong the distant traveler merely because the savage is not in a civil condition. Even if a savage’s freedom is lawless and she may be said to be in the state of nature, she does the other no wrong if the other is not in her neighborhood. Being side-by-side, however, gives rise to certain duties and rights. In Perpetual Peace, Kant says that if another person or nation is in “a mere state of nature,” then he “already wrongs me just by being near me in this condition.” He wrongs me “by the lawlessness of his condition…by which he constantly threatens me; and I can coerce him either to enter with into a condition of being under civil laws or to leave my neighborhood.”108 If you were in the neighborhood and I am the visitor, you can coerce me to leave or live under laws with me. It is important to consider who is the local and who is the visitor. If a person’s will brings her into another’s neighborhood, she cannot complain that the local has wronged her by living a savage life. The local may still be doing wrong in a formal sense, by remaining in the state of nature with his neighbors. However, the local is not necessarily wronging any specific person, because all the other locals may also desire to live in the state of nature. In that situation, they may all do wrong in a formal sense, but do no wrong to one other, because it is as if they all consent.109 Even if the Natives did wrong each other, the 107 VI:266 MM §15. 108 VIII:349 PP (underscore and bold added). 109 “Given the intention to be and to remain in this state of externally lawless freedom, men do one another no wrong at all when they feud among themselves; for what holds for one holds also in turn for the other, as if by mutual consent…” VI:307 MM §42 (emphasis in original). I interpret the “given the intention to be” to refer to both or all parties having this intention. If we effectively mutually consent through our shared intention to be in the state of nature, we do not wrong each other by feuding. However, if two parties do not share this intention—for example, one party wishes to leave the state of nature and another wishes to stay—then the latter not only does wrong generally but also does wrong to the other. Waligore 39 outsider is not himself wronged. Their condition is compatible with his freedom. Under the universal principle of right, Kant says that any action is right if it coexists with everyone’s freedom under a universal law. He specifically refers not only to actions, but also to conditions, like being in the natural condition or the state of nature.110 Going further, there are indications that Kant does not think a local inhabitant is even doing wrong in a formal sense if she stays in the state of nature, at least in certain situations. Right involves disputes over property claims. In situations where there is no fixed property, there is not any necessity (or less of a need) to form a civil state—after all, why have a civil state if there is no property to protect? With these considerations in mind, the situation of the Natives and settlers looks like this: The colonist is using coercion against Natives who have not wronged her, because the Native people were not unavoidably side-by-side with her. However, one may object to my claim here based on the idea of the original possession of the Earth in common. There is a good argument that, for Kant, the right to visit is based on the idea of original possession in common of the Earth.111 What every human being originally possessed in common is land—all of the land of the Earth. It is an original community of land. Original possession in common does not refer to some primitive, historical community that actually existed. A historical communal land system must be instituted through legal acts, and is therefore not an original, underived community. Original possession in common is a rational idea. Kant says that what we mean by a property right (a right to a thing against all others in the world) is “a right to the private use of a thing of which I am in (original or instituted) possession in common with all others.”112 So a right to property in land depends on the idea 110 Kant says, “If then my action or my condition [Zustand] generally can coexist with the freedom of everyone in accordance with a universal law, whoever hinders me in it does me wrong; for this hindrance (resistance) cannot coexist with freedom in accordance with a universal law.” VI:230/231 MM “Introduction to the Doctrine of Right” (undermine mine, italics in original). 111 For an argument that original possession in common and the original right to freedom basically reduce to each other with regard to being a ground for cosmopolitan right, see Pauline Kleingeld, "Kant’s Cosmopolitan Law: World Citizenship for a Global Order," Kantian Review 2 (1998): 72-90. Georg Cavallar adopts a similar position. Georg Cavallar, The Rights of Strangers: Theories of International Hospitality, the Global Community, and Political Justice since Vitoria (Aldershot: Ashgate, 2002), ch. 6. I discuss how the two might be connected below. 112 VI:261 MM §11. Waligore 40 of the original community of land. If this concept of the original community of land favors the colonist, then this would be disastrous for Kant’s defense of Native property rights. The idea of original possession in common may appear to favor colonists because it holds that no one originally had any more right to privately own a piece of the Earth than anyone else. The idea of original possession in common, however, does not actually favor the colonists. The idea refers to all having a right to be on the place on the Earth where we faultlessly find ourselves. The right to be where one happens to faultlessly be is an original right, which Kant here equates with being “prior to any act of choice that establishes a right.”113 However, this is not an original right to have a piece of land as a piece of property. Possessions in the sense of private property must be acquired. This original “possession in common” of the land means the right of a human being to “be wherever nature or chance (apart from their will) has placed them.”114 This possession in common, and the corresponding right to be where one happens to be, does not refer to the right to residence, which involves acquiring property and excluding others. I do have an original right not to be forced off the place where I physically am, but unless I own my land, someone can take my house or destroy it.115 Temporary possession of the land on which one walks is different from residence in the place over time. Residence is “a chosen and therefore an acquired lasting possession.”116 The basis for the original community of land most likely stems from a limited globe together with our innate right to freedom. The innate right to freedom is the one original right that belongs to all humans in virtue of their humanity.117 Freedom for finite rational beings requires outer freedom, or acting in the external world. If we were not able to move in space in the world, we could not will ends. Our outer freedom requires action in the world. Our outer freedom ceases to effectively exist if we cannot act in the 113 VI:262 MM §13. 114 VI:262 MM §13 (underscore added). 115 VI:262 MM §12. 116 VI:262 MM §13 (underscore added). 117 VI:237 MM “Division of the doctrine of right.” Waligore 41 world. This means we originally, before any juridical acts, all possess the right to move the members of our body around the earth freely. In discussing the original community of land, Kant emphasizes the spherical surface of the Earth. If the Earth were unbounded, community would not be necessary. Community is necessary because we will have to interact with at least some other peoples. Right does not, however, demand that we interact with them, unless such action is unavoidable. If the Earth were an infinite plane, we could avoid other human beings. But the spherical nature of the Earth means that we cannot disperse in different directions forever.118 This idea that community is a necessary result of our existence on a globe carries two implications. First, localized communities are needed, because human beings will cluster together in places that are particularly hospitable.119 We are necessarily participants in dense interaction with those so close to us. So at the level of domestic civil right, the first level of public right,120 the proximity principle means that we must form a civil state to settle disputes with those with whom we cannot avoid interacting. Necessity of dense or tight interaction means that we form a civil constitution through a domestic civil state in our local area.121 So the original community of land cannot provide any reason for thinking that the Natives and the colonists were not unavoidably-side-by-side in times of first contact and early interaction, at least with reference to any strong sense of proximity. There is a further objection to my claim that Natives and settlers were not unavoidably-side-byside in a strong sense at the time of contact. True, a limited globe and the necessity of interaction might 118 VI:262 MM §13. 119 See Jeremy Waldron, "Kant's Legal Positivism," Harvard Law Review 109, no. 7 (1996): 1535-66, 1555; Ibid., "Alternatives to Nationalism: Proximity and Conflict as the Basis of a State," The Daniel Jacobson Lecture (Hebrew University of Jerusalem, May 4, 2005). 120 Or perhaps one might place this in the transition from private to public right. See Mary Gregor’s discussion of Bernd Ludwig’s emendations in her note on the translation of The Metaphysics of Morals. 121 Kant seems to think that non-sedentary societies that remain within their own boundaries are not obligated to form a civil state with public laws, perhaps because their sparse occupation of the land means they are not “unavoidably” side-by-side. See Sankar Muthu, Enlightenment against Empire (Princeton, N.J.: Princeton University Press, 2003), 208. Muthu’s intention seems to be to establish that actual Enlightenment thinkers were against imperialism. Muthu could be correct in his reading of Kant, but this would still leave us uncertain whether Kant applied his doctrine well and what that means for those who think today about issues of right. Waligore 42 mean that we are unavoidably side-by-side at a global level. Jeremy Waldron posits a “global proximity principle,” and a rather strong version of the global proximity principle. Waldron has a strong global proximity principle because it is one stressing the inevitably of greater future interaction, not simply the amount of interaction we have now.122 He says that the spherical nature of the world means that if I travel in a straight line away from you, “I will sooner or later find myself approaching you from the other direction.”123 It is not possible to avoid one another, so interaction according to juridical terms of right is necessary. Moreover, for Waldron, the proximity principle applies regardless of whether we came to be side-by-side through historical injustice or not.124 The concept of the global proximity principle is useful, but it would be mistaken to think all versions of the global proximity principle must be as strong as Waldron’s version. For example, though we have to come to terms with each other no matter how we came to be unavoidably-side-by side, the just terms may vary not only according to the present density of interaction, but also according to how these patterns of interaction formed. In my view of Kant, the limited Earth means simply that we must conceive of an idea of “a community of possible physical interaction”125—a cosmopolitan community—and act in accordance with the demands of the idea of such a community. This means we should not block the realization of the idea or make it impossible to leave the state of nature.126 Others cannot coerce people to come together into a cosmopolitan constitution, because the cosmopolitan constitution itself involves the idea that these 122 Waldron says that forming local state institutions is particularly urgent, because we are already side-by-side. State institutions are “best understood to indicate the provisional and essentially inter partes character of the laws that rule the members of a particular cluster. His cosmopolitan internationalism derives from a sense that we are gradually coming closer and closer to all others on earth…” Waldron, "Kant's Legal Positivism," 1556. 123 Ibid., "What Is Cosmopolitan?," 236-37. 124 Ibid., 240. 125 Kant says that the nations of the Earth 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…” VI:352 MM §62. 126 Elisabeth Ellis quotes Kant: “Always leave open the possibility… of entering a rightful condition.” Elisabeth Ellis, Kant's Politics: Provisional Theory for an Uncertain World (New Haven: Yale University Press, 2005), 112. Ellis is quoting from and generalizing from Kant’s discussion in international right of the unjust enemy. VI:349 MM §60. Waligore 43 relations come about through peaceful means. Thus, Europeans cannot violently establish trading posts and colonies in order to form relations of dense and repeated global interaction. Also, Natives cannot kill visitors who merely offer further interaction; such hostility would make actual overtures to establish social relations impossible, undermining the conditions for universal hospitality. I will now continue on my provisional solution to the puzzle. When we unavoidably interact with one other, it is morally necessary that we form a condition of public right. When we unavoidably interact with one other in dense and repeated patterns, the type of community in public right that we must enter is a strong one. In domestic civil right, we are all so close and interact so much that it is a moral necessity that we form a civil state. Kant says as much. We still have duties to potential and actual interactors, but our duties are different when they are towards those with whom we necessarily interact.127 It may be inevitable that we have some occasional interaction with outsiders, but this interaction is not of the same quality as unavoidable interaction with insiders. Our innate right to freedom prevents non-reciprocal coercion and imposition of duties.128 In most situations, insiders can rightly impose duties on outsiders without giving the forms of justification we feel we owe to insiders. (Some forms of justification meeting weaker standards may be still be owed.) This asymmetry might be because the imposition of these duties on outsiders need not involve a non-reciprocal coercion, because outsiders and insiders are not unavoidably side-by-side. It is possible that both Natives and foreigners can each exclude the other from their society. This exclusion can be reciprocal, but when it becomes non-reciprocal, or coercive, it violates our innate right to freedom. Interaction between insiders and outsiders becomes morally avoidable on the presumption that each has her place to exist on the Earth. Kant’s hospitality says that a visitor cannot be turned away if this would cause her destruction. If the outsider asks the local for permission for the outsider to stay in the local neighborhood, the local owes a response. The local may not owe the outsider a justification, but the right of hospitality generally means that he has no choice but to hear the visitor out. Having heard the 127 Alternatively, if there are general duties that stay the same, what those duties concretely mean differ. 128 VI:237/38 MM “Division of the doctrine of right.” Waligore 44 offer, the local must respond without hostility. The local cannot cause the destruction of the outsider. This is a very narrow exception to the rule that the Native community may refuse offers at their discretion. Cosmopolitan right, then, may involve the repelling of settlers by Natives. Settlers are not owed as much justification because, as visitors came by their own will, they are not necessary and unavoidable participants in the local system of right. The Natives are not coercing the settlers unduly, if they have not deprived them of a space for freedom. This explains the one exception for Kant in cases of necessity. The visitor cannot be turned away if this would cause his destruction. This would destroy his participation in the community of possible interaction. His status as a citizen of the world would be destroyed. This would actively destroy the conditions of the exercise of free agency.129 Even if cases of hospitality for shipwrecked sailors and such, the visitors are made temporary residents, not people with whom the Natives must forever unavoidably interact.130 The Natives are not required to guarantee these conditions by setting up strong institutions that best secure and advance freedom for those with whom they do not unavoidably interact. Native peoples in Brazil do not owe it to foreigners to extract natural resources from their lands in order to simply increase the general stock, which could be used to provide goods and protect rights.131 However, if the shipwrecked visitors become marooned, or are refugees that cannot return, the locals owe them non-domination. The locals should either facilitate the return of the shipwrecked visitors, or work to ensure that the visitors are not subjected to local domination by allowing the shipwrecked sufficient access to area resources and/or access to the opportunities of the local society. Meeting the standard of non-domination does not demand that the Native peoples necessarily transform their society to meet the standard of living that the immigrants have been accustomed to. Rather, if return is not facilitated, then holdings must be changed, opportunities given, or institutions rearranged so that relative newcomers are not permanently disadvantaged. 129 So necessity need not be thought of in terms of material needs, per se. 130 On my view, if interaction becomes long lasting and unavoidable, then institutions would need to be set up to prevent dominance. This is my second proviso or duty of hospitality that attaches to titles of ownership, the first being sufficiency. Here I am describing sufficiency in terms of the conditions for free agency. 131 For a contrary view, see Will Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (Oxford: Oxford University Press, 2001), chs. 6 & 7. Waligore 45 ‘Disadvantage’ means that the newcomers should have a sufficient share to avoid domination from the locals. It does not necessarily mean that the newcomers have an equal share.132 Necessity also exists at the other levels of right besides domestic civil right, but the conditions of necessity exist in narrower limits at these levels. Public right at the domestic level is said to refer to a coercive state. This is not the case at other levels of public right. At the level of cosmopolitan right, there is a duty to avoid blocking greater future rightful interaction. There is not a necessity to allow coercion to create the conditions of unavoidable interaction present at the domestic level of public right. This is in part because while right generally says that where the conditions of dense unavoidable interaction exist, it is necessary to enter into a civil condition, it does not say that it is necessary to create the dense conditions that necessitate this. By right, we only have to leave open the possibility of interaction and the possibility of a closer global community. At the level of international right, states generally cannot rightfully coerce other states through war. Though states have the obligation to enter into peaceful federation, they cannot be coerced into doing so. Kant may be against a world state (in part at least) due to practical considerations. The relationship between states must take place in accord with a double principle of actuality. States may be aware of other states’ actual existence and actually have relations among themselves, but (unless perhaps they are close neighbors) states do not have the need to interact in the same way that local persons do. In international right, then, there is no necessity for dense relationships, but the need and potential for conflict is greater a priori than it is between persons and distant strangers. Finally, at the level of cosmopolitan right, visitors usually travel by will. Cosmopolitan right is limited to universal hospitality. There is a necessity by right for the Natives to give temporary sojourn to those who do not come by their own choice but by chance or necessity. Kant says, “All human beings are 132 David Lyons wrongly assumes that fair shares must be equal shares. David Lyons, "The New Indian Claims and Original Rights to Land," in Reading Nozick: Essays on Anarchy, State, and Utopia, ed. Jeffrey Paul and Robert Nozick (Totowa, N.J.: Rowman & Littlefield, 1981). I disagree that this need be true. It would depend on our view of justice. George Sher has made this point about Lyons as well. George Sher, "Ancient Wrongs and Modern Rights," in Justice in Time: Responding to Historical Injustice, ed. Lukas Meyer (Baden-Baden: Nomos Verlagsgesellshaft, 2004): 135-44, 138-39. In my view, an equal share might be contingently required, in some circumstances, in order to avoid domination. See further chapter 1 of this dissertation. Waligore 46 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 or chance (apart from their will) has placed them.”133 Native peoples cannot make travelers’ attempts to establish more dense interaction impossible. To Kant, visitors have the right to try to establish society (e.g. trading relations or domestic civil union) with Native peoples. This right to visit (and the right to hospitality) allows the world to become closer and closer: “This right, since it has to do with the possible union of all nations with a view to certain universal laws for their possible commerce, can be called cosmopolitan right (ius cosmopoliticum).”134 Coercion is not justified for this end, unlike in domestic right, but is justified only when the right to hospitality is refused.135 The difference is that before any encounter, the only type of interaction that exists between settlers and unknown people is possible interaction. When the encounter occurs there is brief actual interaction. However, right does not require, by necessity, that this interaction regularly occur and involve society, or continual reciprocal interaction. This interaction need not rise to the type of interaction present in domestic right: tight, actual interaction that is permanent by necessity.136 Hospitality fills in the gap when there is necessary interaction. The overture by the visitors is an attempt to establish actual interaction. If the visitors want to settle, they are asking to create a condition in which settlers and natives would live unavoidably side-by-side and so necessarily (by right) live together in a state of domestic civil right. If the settlers are traders, they establish actual interaction. This takes place through contracts. 133 VI:262 MM §13. 134 VI:352 MM §62. 135 However, Kant is unclear about this. 136 This analysis runs counter to the views of Jeremy Waldron, who writes: "Kant’s position is that the mere fact that a group of explorers and merchants from one culture want to make contact with members of another culture is not to be regarded in itself as an affront. No doubt such contacts will compromise the identity and purity of one or both of the cultures (that’s what contact—commerce, intercourse, conversation—is). Jeremy Waldron, "Cosmopolitan Norms," in Another Cosmopolitanism, ed. Robert Post (Oxford: Oxford University Press, 2006), 91. Waldron does not distinguish between necessary contact, actual contact, and possible contact. Brief, actual interaction need not compromise the integrity of a culture, or cultural autonomy. Waligore 47 Furthermore, Kant says that because the earth is bounded and humans cannot disperse forever, community is a necessary result of our existence on Earth.137 At the local level, since people cluster together around resources and fertile land, localized regimes are needed to deal with conflicts that will necessarily come about.138 At the global level, then, what is necessary is the idea of a community of possible interaction. It is not necessary that Indians actually engage in trading relations with settlers; they need only be willing to actually treat visitors without hostility and not kill them merely because of their offers laying out future possibilities. Because of the limited space on the earth (in which we can freely use things), we may all have to deal with each other at one point or another. These physical constraints place limits on what we may choose to do. What is necessary at the level of cosmopolitan right is that we realize that, because of the earth’s spherical shape and bounded nature, we can all possibly encounter each other as we travel around the earth. When Kant says that “all nations stand originally in community of land, though not of rightful community of possession (communio) and so of use of it, or of property in it,” he means that we do not originally exist in a rightful condition of private property, including collective property or national territory. The original community is one of people who can come into contact with one another. Nations “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.”139 137 VI:262 MM §13. 138 Waldron, "Kant's Legal Positivism," 1555; Ibid., "Alternatives to Nationalism." 139 Here are the quotes in context: “This rational idea of a peaceful, even if not friendly, thoroughgoing community of all nations on the earth that can come into relations affecting one another is not a philanthropic (ethical) principle but a principle having to do with rights. 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 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 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, and each has a right to make this attempt without the other being authorized to behave toward it as an enemy because it has made this attempt. – This right, since it has to do with the possible union of all nations with a view to certain universal laws for their possible commerce, can be called cosmopolitan right (ius cosmopoliticum).” VI:352 MM §62. Waligore 48 This logic does not disallow all types of original (underived) possession, but only an original rightful community of private possessions.140 An original right is a right that exists before anyone has undertaken a juridical act. An original right is an underived right in the sense that it is underived from what is specifically mine or specifically yours. An original acquisition can be derived from the idea of original possession in common. Kant’s idea of original possession in common creates the possibility of original acquisition—that is, of private rights.141 This includes the acquisition of territory by Native peoples. Kant’s permissive law with regard to property142 allows acquisition by unilateral acts and unilateral declarations of will, but it also sets limits to this acquisition. Acquisition must be done in accord with the idea of a will of all. Kant says, “[T]his favor [of the permissive law allowing acquisition] does not extend beyond the point at with others (participants) consent to its establishment.”143 Kant refers here not to all others in the world, but to participants. Globally, we are participants in existing together in a bounded world, but this creates less stringent, or thinner, obligations than exist at a local level. Our unavoidable participation at the global level is “thinner,” so our obligations need not be as thick. We must take into account not the interests of all others equally, but of all necessary participants. We do always have obligations to all others simply because they are human and because we are claiming to limit their freedom. We are all, because of the shape of the earth, necessarily participants in a 140 Though I do not have space here to show it, I think Katrin Flikschuh ignores this point in her analysis. 141 On my reading of Kant, we do not, simply by entering the world, acquire any external things as specifically ours. That is, we do not enter the world with private property in external things. See above text. Still, this is compatible with the idea that all humans originally possess the world in common. We have an innate right to freedom simply by virtue of being human. We do not acquire any right through being born. Acquisition requires an act. We did not choose to be born, so our being born was a juridical act on our part. We cannot originally be in possession of private property, of what is yours and mine. There is originally only a community of land—that is, common possession of the surface of the earth. However, a community of rightful private ownership does not exist originally. It must be established. What is specifically yours and mine (exclusive to a specific persons’ use) must be acquired. Though children do not commit an act by coming into the world, parents acquire obligations with respect to children by performing the deed of bringing them into this world without their consent. Parents cannot destroy their children or abandon them, because the children are “not merely a world being but a citizen of the world…” VI:280 MM §28. 142 A permissive law (lex permissiva) allows us to do what we otherwise might not be permitted to do. This permissive law allows the appropriation of property by individuals, even through unilateral actions. VI:250 MM “postulate of practical reason with regard to rights.” 143 VI:267 MM §16. Waligore 49 community of potential interaction. But whether we are potential, actual, or necessary participants varies from situation to situation, and the different levels of right take this into account. We do have obligations to outsiders; some interaction is necessary with at least some of those with whom we share the Earth. But the strength of these obligations (including the obligation to justify ourselves to others) varies depending on the level of interaction. Kant says that because “the (narrower or wider [engeren oder weiteren]) community of the nations of the earth has now gone so far that violation of right on one place of the Earth is felt in all, the idea of a cosmopolitan right is no fantastic and exaggerated way of representing right.”144 A narrower (crowded and tighter) community of nations will both lead to the idea of a cosmopolitan right, as will a wider (more spread out) community of nations. I posit, however, that the wider community involves different obligations than the tighter community.145 The tighter and more crowded the community, the stricter and more necessary the duties and the more we can be said to be unavoidably side-by-side on a global level. Yes, a community of nations that is farther apart leads to minimal duties of cosmopolitan right, such as the right of visit, but nothing in the idea of cosmopolitan right commands that we have tight ties and strong duties now. 6. Further Thoughts Through Looking Backwards All humans were not unavoidably side-by-side globally, in any strong sense, at the time of “discovery” and colonization. If they were, this would have justified coercive acts to bring Natives into a civil condition. Domestic proximity and global proximity are not necessarily the same. It may be that since Kant’s day, our interactions are increasingly dense, and our interactions are increasingly more unavoidable, such that the conditions of global proximity are closer and consequently more like the conditions of domestic proximity. The result might be that our global obligations are actually now more 144 145 VIII:360 PP “Third Definitive Article for Perpetual Peace.” An alternate way of interpreting this quote is that Kant is referring the narrow community of nations in the sense of states, and the wider community of nations in the sense of all peoples, whether or not they are organized as a state. Waligore 50 like our domestic obligations. However, this is a contingent result, dependent on past interactions. To say that this was not a contingent result, but an unavoidable result (and unavoidable because rightful), is tantamount to offering an after-the-fact justification of colonialism. Our theory should not make it so that the circumstances of cosmopolitan right depend essentially on past violations of cosmopolitan right. That we now are unavoidably side-by-side at the global level in a strong sense may not have been inescapable in absence of past wrongs. Simply being globally side-byside means that we have a duty to enter into a global civil condition, or at least not thwart it by making it impossible. If we are globally side-by-side in a “strong” sense, and not merely a “weak” sense, then Kant might have said that others may coerce to fulfill this duty. This “strong” sense involves the claim that we now have this duty because we are in dense patterns of interaction. This claim is more plausible than the idea that our predecessors were morally required to establish the dense patterns of interaction that created the conditions for these coercive duties today. At a certain point, we do transition into using principles from other contexts of public right. So can looking at what was wrong centuries ago have any relevance for what one should do today? Thinking through what Kant says about indigenous title and collective autonomy might help answer several questions. Do land claims have merit? Should a sphere of political autonomy (sovereignty or quasi-sovereignty) be restored to indigenous peoples and be maintained where it already exists? Certainly, if we want to argue that we should now rectify the past injustice done to indigenous peoples through colonization, it is necessary (though not sufficient) 146 to establish that an injustice was in fact done in the past. Otherwise, the possibility of reparations for past injustice is 146 Jeremy Waldron argues that circumstances can change from the time the injustice was originally committed. For example, the original victim could have died, environmental changes could be great, demographics could be greatly altered, etc. It is not always possible to rectify the original injustice, even though it was an injustice. See Jeremy Waldron, "Historical Injustice: Its Remembrance and Supersession," in Justice, Ethics, and New Zealand Society, ed. Graham Oddie and Roy Perrett (Auckland: Oxford University Press, 1992); Ibid., "The Supersession Thesis: The Process and Legacy of Settlement," paper presented at the Conference on Israeli Settlements & Related Cases (Minerva Center for Human Rights, Tel Aviv University, June 1-2, 2003); Ibid., "Settlement, Return, and the Supersession Thesis," Theoretical Inquiries in Law 5, no. 2 (2004): 237-68. I do not dispute this possibility, but elsewhere I have taken issue with the implications Waldron thinks follow from what he calls the “supersession of historic injustice.” See Timothy Waligore, "Kant’s Cosmopolitan Right, Cultural Interaction and Indigenous Peoples," paper presented at the annual meeting of the American Political Science Association (Washington, D.C., September 1, 2005), esp. sec. VI. Waligore 51 foreclosed.147 Kant’s principles of right condemn forced settlement of distant land, and looking at why he might have thought this gives us a window into how to condemn colonialism while explaining how Natives can rightfully claim a patch of the Earth such that others are bound by their appropriation. Additionally, the principles we use to explain why colonization was wrong can help us when thinking about what should be the relevant principles in determining what type of reparations from historical injustice should (or should not) take place today. We should not say that principles holding in today’s context do not hold in the context in the year 1800, merely on account of the time period. This does not mean the same principles always hold, but only that an explanation must be given for why supposedly cosmopolitan principles do not apply. Principles that apply across contexts can also be applied contextually in different ways, depending on local circumstances. What is important is that a theory should not justify historical wrongs. A theory should also not say that the time for reparations passes very quickly, because such a theory would then provide incentives for unjust acts. A theory implemented in the context of today’s world might not now give incentives for imperialism, slavery, and the colonization of indigenous peoples. However, a cosmopolitan theory that claims its principles are truly universal and non-contingent should seek to apply those principles in the time and context of colonialism. What actions would those principles have justified directly? Answering this helps to rule out unacceptable theories.148 More controversially, we should judge principles not only by what they might have directly condoned at the time they applied, had they applied in the past. We should also look at the incentives that would have been provided to peoples 500 years ago, if they had known about what we now say about the principles of cosmopolitan justice. The principles of a cosmopolitan theory should not directly justify or 147 Some liberal multiculturalists give arguments for giving special consideration to indigenous peoples, but base these arguments mainly on present disadvantage. See Will Kymlicka’s endorsement of the “equality argument” and the lesser importance he places on arguments based on the importance of historical agreements. Will Kymlicka Multicultural Citizenship (Oxford: Oxford University Press, 1995), ch. 6. I am interested in claims stemming from the rectification of past injustice. For this purpose, I need to establish that a past wrong was committed. 148 See ch. 1 of my dissertation Waligore 52 indirectly encourage odious types of injustice, even if these types of injustices are unlikely to occur again.149 Though I am concerned with necessity, actuality, and possibility, I have said we cannot simply determine the current level of interaction by present day patterns. Interaction necessarily has a temporal dimension. Visitors may occupy the same space at the moment they land on foreign shores, but the visitors need not be necessary interactors at the moment they immediately land. Unjust interaction can lead to necessary interaction, but the shadow caused by the injustice has implications for the way we approach claims to reparations now. In considering what our moral code of cosmopolitan right should be, we should consider what direct and indirect implications our view has for what we now regard as historical injustice. 149 This point is discussed in further detail in the concluding chapter of my dissertation.