or other sites o f democratic activism and engagement.

I focus
on three cases drawn from recent European developments to
illustrate practices o f democratic iteration at work: the “scarf On hospitality: rereading Kant’s
affair” in France; the case o f a German-Afghani schoolteacher cosmopolitan right
who was denied the right to teach with her head covered and
the German Constitutional Court’s decision on the matter; and This chapter begins with an analysis o f Kant’s understanding
finally a 1990 decision o f the German Constitutional Court that of cosmopolitan right. Kant’s discussion focuses on moral and
denied the right to vote in local elections to long-term foreign legal relations which hold among individuals across bounded
residents o f the province o f Schleswig-Holstein and the city- communities, and thereby demarcates a novel domain situated
state o f Hamburg. These decisions were superseded in 1993 between the law o f specific polities on the one hand and cus­
by the Treaty o f Maastricht, but they set in motion a pro­ tomary international law on the other. Katrin Flikschuh states
cess o f democratic iteration which resulted in the abolishing o f this clearly: “Kant recognizes three distinct though related lev­
Germany’s rather antiquated and restrictive citizenship laws, els o f rightful relation: the ‘Right o f a State’ specifies relations
dating back to 1913. of Right between persons within a state; the ‘Right o f Nations’
pertains to relations o f Right between states; and ‘the Right
for all nations’ or ‘cosmopolitan Right’ concerns relations of
Right between persons and foreign states” (Flikschuh 2000,
184). The normative dilemmas o f political membership are to
be localized within this third sphere o f jus cosmopoliticum.

“Perpetual Peace” and cosmopolitan right - a

contemporary reevaluation

Written in 1795, upon the signing of the Treaty o f Basel

by Prussia and revolutionary France, Kant’s essay on “Perpetual
Peace” has enjoyed considerable revival o f attention in recent
years (see Bohman and Lutz-Bachmann 1997). What makes
this essay particularly interesting under the current condi­
tions o f political globalization is the visionary depth o f Kant’s
project for perpetual peace among nations. Kant formulates
 three “definitive articles for perpetual peace among states.” odd in that it does not regulate relationships among individ­
These read: “The Civil Constitution o f Every State shall be uals who are members o f a specific civil entity under whose
Republican”; “The Law o f Nations shall be founded on a Fed­ jurisdiction they stand; this “right” regulates the interactions
eration o f Free States”; and “The Law o f World Citizenship of individuals who belong to different civic entities yet who
Shall be Limited to Conditions o f Universal Hospitality” (Kant encounter one another at the margins o f bounded communi­
[1795] 1923» 434- 446; [1795] 1994: 99-108).1 Much scholarship ties. The right o f hospitality is situated at the boundaries o f
on this essay has focused on the precise legal and political form the polity; it delimits civic space by regulating relations among
that these articles could or would take, and on whether Kant members and strangers. Hence the right o f hospitality occupies
meant to propose the establishment o f a world federation of that space between human rights and civil rights, between the
republics (eine föderative Vereinigung) or a league o f sovereign right o f humanity in our person and the rights that accrue to
nation-states ( Völkerbund). us insofar as we are members o f specific republics. Kant writes:
What remains frequently uncommented upon is the “Hospitality [ Wirtbarkeit] means the right o f a stranger not to
Third Article o f “Perpetual Peace,” the only one in fact that be treated as an enemy when he arrives in the land o f another.
Kant himself explicitly designates with the terminology o f the One may refuse to receive him when this can be done without
Weltbürgerrecht. The German reads: “Das Weltbürgerrecht soll causing his destruction; but, so long as he peacefully occupies
auf Bedingungen der allgemeinen Hospitalität eingeschränkt his place, one may not treat him with hostility. It is not the right
sein” (Kant [1795] 1923, 443). Kant himself notes the oddity to be a permanent visitor [Gastrecht] that one may demand.
o f the locution o f “hospitality” in this context, and therefore A special contract o f beneficence [ein . . . wohltätiger Vertrag]
remarks that “it is not a question o f philanthropy but o f right. ” would be needed in order to give an outsider a right to become
In other words, hospitality is not to be understood as a virtue a fellow inhabitant [Hausgenossen] for a certain length o f time.
o f sociability, as the kindness and generosity one may show It is only a right o f temporary sojourn [ein Besuchsrecht], a
to strangers who come to one’s land or who become depen­ right to associate, which all men have. They have it by virtue
dent upon one’s acts o f kindness through circumstances of o f their common possession [das Recht des gemeinschaftlichen
nature or history; hospitality is a “right” which belongs to all Besitzes] o f the surface o f the earth, where, as a globe, they
human beings insofar as we view them as potential partic­ cannot infinitely disperse and hence must finally tolerate the
ipants in a world republic. But the “right” o f hospitality is presence of each other” (Kant [1795] 1923» 4435 cf- i949>320).
Kant distinguishes the “right to be a permanent
1 I have consulted several English translations o f Kant’s “Perpetual Peace”
visitor,” which he calls Gastrecht, from the “temporary right
essay, amending the text when necessary. For further information on these
various editions, please consult the bibliography. The first date and page o f sojourn” (Besuchsrecht). The right to be a permanent visitor
number refer to the German text, and the second to the English editions. is awarded through a freely chosen special agreement which
goes beyond what is owed to the other morally and what he We may see here the juridical and moral ambivalence
is entitled to legally; therefore, Kant names this a wohltätiger that affects discussions o f the right o f asylum and refuge to this
Vertrag, a “contract o f beneficence.” It is a special privilege day. Are the rights o f asylum and refuge “rights” in the sense
which the republican sovereign can award to certain foreigners of being reciprocal moral obligations which, in some sense or
who abide in their territories, who perform certain functions, another, are grounded upon our mutual humanity? Or are these
who represent their respective political entities, who engage rights claims in the legal sense o f being enforceable norms o f
in long-term trade, and the like. The droit d’aubaine in pre­ behavior which individuals and groups can hold each other to
revolutionary France, which granted foreigners certain rights and, in particular, force sovereign nation-states to comply with?
o f residency, the acquisition o f property, and the practicing o f a Kant’s construction provides no clear answer. The right o f hos­
profession, would be a pertinent historical example. The special pitality entails a moral claim with potential legal consequences
trade concessions that the Ottoman empire, China, Japan, and in that the obligation o f the receiving states to grant temporary
India granted westerners from the eighteenth century onward residency to foreigners is anchored in a republican cosmopo-
would be others. The Jews in premodern Europe, who after litical order. Such an order does not have a supreme executive
their persecution through the Inquisition in Spain in the law governing it. In this sense the obligation to show hospital­
fifteenth century, spread to the north, to Holland, Britain, ity to foreigners and strangers cannot be enforced; it remains a
Germany, and other territories, would be another major group voluntarily incurred obligation o f the political sovereign. The
to whose status both the right o f hospitality and that o f right o f hospitality expresses all the dilemmas o f a republi­
permanent visitorship would apply. can cosmopolitical order in a nutshell: namely how to create
The right o f hospitality entails a claim to temporary quasi-legally binding obligations through voluntary commit­
residency which cannot be refused, if such refusal would involve ments and in the absence o f an overwhelming sovereign power
the destruction - Kant’s word here is Untergang- o f the other. with the ultimate right o f enforcement.
To refuse sojourn to victims o f religious wars, to victims o f But what exactly is Kant’s justification for the
piracy or ship-wreckage, when such refusal would lead to their “temporary right o f sojourn”? Why does this claim bind the
demise, is untenable, Kant writes. What is unclear in Kant’s dis­ will of the republican sovereign? When reflecting on the
cussion is whether such relations among peoples and nations “temporary right o f sojourn” (Besuchsrecht), Kant uses two
involve acts o f supererogation, going beyond the call o f moral different premises. One premise justifies the right o f tem­
duty, or whether they entail a certain sort o f moral claim con­ porary sojourn on the basis o f the capacity o f all human
cerning the recognition o f “the rights o f humanity in the person beings (allen Menschen) to associate - the German reads sich
o f the other.”
zur Gesellschaft anzubieten (Kant [1795] 1923, 443)- The other
 premise resorts to the juridical construct o f a “common pos­ Through a patently circular argument, Locke main­
session o f the surface o f the earth” (gemeinschaftlichen Besitzes tains that private property emerges through the fact that the
der Oberfläche der Erde) (ibid.). With respect to the sec­ means o f appropriation are themselves private, “the labor of
ond principle, Kant suggests that to deny the foreigner and his body, and the work o f his hands, we may say, are prop­
the stranger the claim to enjoy the land and its resources, erly h i s . . . this nobody has any right to but himself” (ibid.).
when this can be done peacefully and without endanger­ In the context o f European expansion to the Americas in the
ing the life and welfare o f original inhabitants, would be seventeenth century, Locke’s argument served to justify the
unjust. colonial appropriation o f the land precisely with the claim that
The juridical construct o f a purported common pos­ the earth, being given to all “in common,” could then be justi­
session o f the earth, which has a long and honorable antecedent fiably appropriated by the industrious and the thrifty, without
in old European jurisprudence, functions as a double-edged harming existing inhabitants and, in fact, for the benefit o f all
sword in this context. On the one hand, Kant wants to avoid (Tully 1993)-
the justificatory use o f this construct to legitimize western colo­ Kant explicitly rejects the res nullius thesis in its Lock­
nialist expansion; on the other hand, he wants to base the right ean form, seeing in it a thinly disguised formula for expro­
o f human beings to enter into civil association with one another priating non-European peoples who do not have the capacity
upon the claim that, since the surface o f the earth is limited, to resist imperialist onslaughts (Kant [1795] 1994,107; see also
at some point or other, we must learn to enjoy its resources in Muthu, 1999,2000). He supports the Chinese and the Japanese
common with others. in their attempt to keep European traders at a distance. What
To understand the first o f Kant’s worries, recall here does the premise o f the “common possession o f the earth”
John Locke’s argument in The Second Treatise of Civil Govern­ really justify, then? Once the earth has been appropriated, oth­
ment. “In the beginning God gave the earth to men in common ers no longer have a claim to possess it. Existing property rela­
to enjoy” (Locke [1690] 1980, 19). The earth is a res nullius, tions must be respected. If so, every community has the right
belonging to all and none until it is appropriated; but to argue to defend itself against those who seek access to its territo­
that the earth is a common possession o f all human beings is, ries. Apart from the assurance that turning away the ones who
in effect, to disregard property relations historically existing seek hospitality would not cause “their destruction” - admit­
among communities that have already settled on the land. The tedly itself a vague formulation - the dire needs o f others do
justification o f the claim to property thus shifts from the his­ not constitute sufficient grounds to bend the will o f existing
torical title that legitimizes it to the modes o f appropriation sovereign communities. The claim to the “common possession
whereby what commonly belongs to a community can then be of the earth” does disappointingly little to explicate the basis
appropriated as “mine” or “thine.” o f cosmopolitan right.
 The sphericality of the earth and and must finally collapse. (Kant, [1797] 1922,117-118; as
cosmopolitan right quoted in Flikschuh 2000,179)

In Kant and Modern Political Philosophy, Katrin

Without delving into details o f discrepancies which
Flikschuh argues that the original common possession o f the
may exist between the “Perpetual Peace” essay and Kant’s more
earth, and in particular the limited spherical character o f the
difficult and fuller discussion in The Metaphysical Elements of
earth (der Erdkugel), plays a much more fundamental role in
Justice, for my purposes the most important question is this:
Kant’s justification in cosmopolitan right than I am claiming
does Kant mean to derive or deduce cosmopolitan right from
that it does. Flikschuh’s argument is worth considering in some
the fact o f the sphericality o f the earth’s surface? What is the
detail. Flikschuh bases this reading not on Kant’s “Perpetual
status o f this fact in Kant’s moral argument? If indeed we were
Peace” essay but on his Rechtslehre, the first half o f Die Meta­
to assume that Kant used the sphericality o f the earth as a jus­
physik der Sitten ( The Metaphysics of Morals). Two passages are
tificatory premise, wouldn’t we then have to conclude that he
o f special relevance here:
had committed the naturalistic fallacy? Just because all castles
The spherical surface o f the earth unites all the places on everywhere are built on sand, it still does not follow that mine
its surface; for if its surface were an unbounded plane, men should be so built as well. Likewise, just because I must, some­
could be so dispersed on it that they would not come into where and at some point, come into contact with other human
any community with one another, and community would beings and cannot flee them forever, this does not imply that
then not be a necessary result o f their existence on the
upon such contact I must treat them with the respect and dig­
earth. (Kant [1797] 1922, 66; as quoted in Flikschuh 2000,
nity to be accorded every human being.
133)2
Flikschuh does not maintain in fact that the spher­
Since the earth’s surface is not unlimited but closed, the icality o f the earth’s surface is a justificatory premise: “The
concepts of the Right of a state and of a Right of nations earth’s spherical surface is that empirical given space for pos­
lead inevitably to the Idea of a Rightfor all nations (ius sible agency within which human beings are constrained to
gentium) or cosmopolitan Right (ius cosmopoliticum). So if articulate their claims to freedom o f choice and action... To the
the principle of outer freedom limited by law is lacking in contrary, the global boundary constitutes an objective given,
any of these three possible forms of rightful condition, the
unavoidable condition o f empirical reality within the limits
framework for all others is unavoidably underdetermined
o f which human agents are constrained to establish possible
2 Since there are some subtle discrepancies between various English relations o f Right” (2000, 133). The spherical surface o f the
editions and Flikschuh’s translations, I have kept references to her earth constitutes a circumstance ofjusticebut does not function
versions o f the relevant passages. as a moral justificatory premise to ground cosmopolitan right.
“Circumstances o f justice” define indeed “the conditions o f our are necessary; and finally that among those conditions are those
possible agency,” as Flikschuh observes. Just as the facts that we pertaining to the rights o f hospitality and temporary sojourn.
are all mortal beings, physically members o f the same species In the next chapter I hope to show that a reconstruction o f the
and afflicted by similar basic needs to assure our survival con­ Kantian concept o f the right to external freedom would lead
stitute constraining conditions in our reasoning about justice, to a more extensive system o f cosmopolitan right than Kant
so too the sphericality o f the earth’s surface functions for Kant himself offered us.
as a limiting condition o f “outer freedom.” This, I think, is
amply clear from Kant’s phrase, “So if the principle o f outer
The contemporary relevance of Kant’s concept
freedom limited by law is lacking in any of these three possible
of “temporary sojourn”
forms o f rightful condition . . . ” (Kant [1797] 1922,118). The
“principle o f outer freedom” is the justificatory premise in the Kant’s claim that first entry cannot be denied to those
argument which leads to the establishment o f cosmopolitan who seek it if this would result in their “destruction” ( Unter­
right. Since, however, exercising our external freedom means gang) has become incorporated into the Geneva Convention
that sooner or later, under certain circumstances, we will need on the Status o f Refugees as the principle o f “non-refoulement”
to cross boundaries and come into contact with fellow human (United Nations 1951). This principle obliges signatory states
beings from other lands and cultures, we need to recognize the not to forcibly return refugees and asylum seekers to their coun­
following: first, that the earth’s surface will be apportioned into tries o f origin if doing so would pose a clear danger to their lives
the territory o f individual republics;3 second, that conditions and freedom. O f course, just as sovereign states can manipu­
o f right regulating intra- as well as interrepublican transactions late this article to define life and freedom more or less narrowly
when it fits their purposes, it is also possible to circumvent the
3 I am foregoing here a consideration of the considerable difficulties of
Kant’s justification of property rights. Kant’s dilemma appears to have “non-refoulement” clause by depositing refugees and asylees in
been the justification of the private apportionment of the earth’s surface so-called safe third countries. Kant’s formulations clearly fore­
without recourse to originary acts of occupation, since the latter, in Kant’s saw as well as justified such balancing acts as between the moral
view, establish not a condition of right but rather of might. Nevertheless,
obligations o f states to those who seek refuge in their midst and
Kant finds it necessary to resort to such an argument. “This postulate can
be called a permissive principle [lex permissiva] of practical reason, which
gives us authorization that could not be got from mere concept of Right see that the claim that only the republican sovereign can grant permanent
as such, namely to put all others under an obligation which they would visitation rights is based on the right of the republican sovereign to control
not otherwise have, to refrain from using certain objects of our choice “privately” a portion of the “common possession” of the earth’s surface.
because we have been the first to take them into our possession” (Kant Bounded territoriality is thus made a precondition of the exercise of
[1797] 1922, 49). The lex permissiva holds not only within individual external freedom by Kant. Indeed, the recognition of “rightful borders”
republics but also across republics. In the light o f this stipulation, we also is essential if perpetual peace among nations is ever to be achieved.
to their own welfare and interests. The lexical ordering o f the to deny asylum when admitting large numbers o f needy peo­
two claims - the moral needs o f others versus legitimate self- ples into our territories would cause a decline in our standards
interest - is vague, except in the most obvious cases when the of living? And what amount o f decline in welfare is morally
life and limb o f refugees would be endangered by denying them permissible before it can be invoked as grounds for denying
the right o f entry; apart from such cases, however, the obliga­ entry to the persecuted, the needy, and the oppressed? In for­
tion to respect the liberty and welfare o f the guest can permit mulating their refugee and asylum policies, governments often
a narrow interpretation on the part o f the sovereign to whom implicitly utilize this distinction between perfect and imper­
it is addressed, and need not be considered an unconditional fect duties, while human rights groups, as well as advocates of
duty. asylees and refugees, are concerned to show that the obligation
The universal right to hospitality which is due to every to show hospitality to those in dire need should not be com­
human person imposes upon us an imperfect moral duty to promised by self-regarding interests alone. In chapter 3 I shall
help and offer shelter to those whose life, limb, and well-being return to the question o f obligations across borders and argue
are endangered. This duty is “imperfect” - i.e., conditional - i n that the construal o f such obligations in the light of the narrow
that it can permit exceptions, and can be overridden by legit­ dichotomy of legitimate self-preservation versus the duties to
imate grounds o f self-preservation. There is no obligation to others is inadequate. The international system o f peoples and
shelter the other when doing so would endanger one’s own life states is characterized by such extensive interdependencies and
and limb. It is disputed in moral philosophy as to how widely the historical crisscrossing o f fates and fortunes that the scope
or narrowly the obligation to the other should be interpreted,4 of special as well as generalized moral obligations to our fellow
and it is equally controversial how we should understand legit­ human beings far transcends the perspective of the territorially
imate grounds o f self-preservation: is it morally permissible to bounded state-centric system. Instead, I shall defend the per­
turn the needy away because we think that they are altering our spective o f a world society as the correct vantage point from
cultural mores? Does the preservation o f culture constitute a which to reason about obligations across borders.
legitimate basis o f self-preservation? Is it morally permissible It may be objected that such criticisms o f Kant are
anachronistic, for what motivates Kant’s formulations o f cos­
4 Cf. Henry Sidgwick: “. . . but those who are in distress or urgent need have
mopolitan right are not concerns for the needs o f the poor,
a claim on us for special kindness. These are generally recognized claims:
but we find considerable difficulty and divergence, when we attempt to the downtrodden, the persecuted, and the oppressed as they
determine more precisely their extent and relative obligation: and the search for safe haven, but rather the Enlightenment preoccu­
divergence becomes indefinitely greater when we compare the customs pation o f Europeans to seek contact with other peoples and to
and common opinions now existing among ourselves in respect of such
appropriate the riches o f other parts o f the world. The right
claims, with those of other ages and countries” (Sidgwick [1874] 1962,
246). For some recent treatments, see O ’Neill 1996; Sheffler 2001. to seek human association, or in the literal translation o f the
German, “to offer oneself to civil association [Gesellschaft] with conditions, if any, can the guest become a member o f the
others,” and to seek “approach” - Zugang- rather than entry - republican sovereign? How are the boundaries o f the sovereign
Eingang - is for Kant a fundamental human right. This is to defined? Kant envisages a world condition in which all mem­
be distinguished from the res nullius thesis; in fact, the right to bers o f the human race become participants in a civil order and
seek human association is at the core o f what it means to be a enter into a condition o f lawful association with one another.
Weltbürger. In true Enlightenment fashion, Kant celebrates the Yet this civil condition o f lawful coexistence is not equivalent
ship and the camel (“the desert ship,” as he calls the latter) for to membership in a republican polity. Kant’s cosmopolitan cit­
reducing distances, breaking down barriers among local com­ izens still need their individual republics to be citizens at all.
munities, and bringing the human race together. To deny “the This is why Kant is so careful to distinguish a “world gov­
possibility o f seeking to communicate with prior inhabitants,” ernment” from a “world federation.” A “world government,”
or ein Verkehr zu suchen (Kant [1795] 1923, 444; 1949, 321), is which he argues would result only in a “universal monarchy,”
contrary to cosmopolitan right. The terminology o f Verkehr zu would be a “soulless despotism,” whereas a federative union
suchen, which can extend to commercial as well as religious, (eine föderative Vereinigung) would still permit the exercise of
cultural, and financial contacts, betrays Kant’s hope that, even citizenship within bounded communities (Kant [1795] 1923,
if the motives o f western powers in seeking to encompass the
45351949) 328).5
face o f the globe may be less than laudatory, through increased We are left with an ambiguous Kantian legacy: while
contacts with other peoples and culture, “the human race can liberals attempt to expand the circumstances to which first-
gradually be brought closer and closer to a cosmopolitan con­ admittance obligations would apply by building more condi­
stitution” (eine weltbürgerliche Verfassung) (Kant [1795] 1923, tions into the phrase “the destruction o f the other,” such as
4445 [1795] 1994,106). economic welfare considerations (see Kleingeld 1998, 79-85),
While Kant’s focus fell, for understandable historical civic republicans and defenders o f national sovereignty point
reasons, upon the right o f temporary sojourn, my concern is to Kant’s condemnation o f world government, as well as to
with the unbridgeable gap he suggests exists between the right his insistence upon the prerogative o f the sovereign to grant
o f temporary sojourn and permanent residency. The first is a membership, in order to justify the rights o f national states to
right, the second a privilege; granting the first to strangers is
an obligation for a republican sovereign, whereas allowing the 5 See Istvan Hont’s prescient remarks: “If the ‘crisis of nation-states’ is
second is a “contract o f beneficence.” The rights o f strangers linked to a weakness in the legitimation of their territorial specification,
and foreigners do not extend beyond the peaceful pursuit of and that is linked to the legitimation of their national property in land,
then the idea of the ‘nation-state’ cannot be now in crisis, because it has
their means o f livelihood upon the territory o f another. What
always been in ‘crisis.’ The only possible world of territorial security is
about the right to political membership, then? Under what the world o f perpetual peace” (Hont 1995,176).
police their borders (Martens 1996, 337-339). Kant wanted to states “regard cross-border processes as a ‘private matter’ con­
justify the expansion o f commercial and maritime capitalism cerning only those immediately affected” (Held 2002, 4).
in his time, insofar as these developments brought the human By contrast, in conceptions o f liberal international
race into closer contact, without condoning European impe­ sovereignty, the formal equality o f states is increasingly depen­
rialism. The cosmopolitan right o f hospitality gives one the dent upon their subscribing to common values and principles
right o f peaceful temporary sojourn, but it does not entitle such as the observance o f human rights and the rule o f law
one to plunder and exploit, conquer and overwhelm by supe­ and respect for democratic self-determination. Sovereignty no
rior force those among whom one is seeking sojourn. Yet the longer means ultimate and arbitrary authority; states that treat
cosmopolitan right is a right precisely because it is grounded their citizens in violation o f certain norms, that close borders,
upon the common humanity o f each and every person and prevent a free market, limit freedom of speech and association,
his or her freedom o f will which also includes the freedom and the like, are thought not to belong within a specific society
to travel beyond the confines o f one’s cultural, religious, and of states or alliances; the anchoring o f domestic principles in
ethnocentric walls. institutions shared with others is crucial.
Insofar as Article One o f Kant’s “Perpetual Peace” reads
that “The Civil Constitution o f Every State shall be Republi­
The Kantian cosmopolitan legacy
can,” Kant certainly can be seen to straddle the classical West­
Kant’s construction and justification o f the cosmopoli­ phalian and the liberal-international models o f sovereignty.
tan right o f temporary sojourn will form a reference point The demand that the constitutions o f free and equal states
for much o f the following discussion. Kant’s “Perpetual should be republican imposes on these states the three condi­
Peace” essay signaled a watershed between two conceptions of tions o f republican government: (1) freedom for all members o f
sovereignty and paved the way for the transition from the first to a society (as men); (2) the dependence o f everyone upon a sin­
the second. We can name these “Westphalian sovereignty” and gle common legislation (as subjects); (3) the principle o f legal
“liberal international sovereignty” (see Held 2002,4-6; Krasner equality for everyone (as citizens) (Kant [1795] 1923, 434-443;
1999,20-25). In the classical Westphalian regime o f sovereignty, [i795] 1994»99-105). Whatever its precise political form maybe,
states are free and equal; they enjoy ultimate authority over all the league o f nations - das Völkerbund - envisaged by Kant is
objects and subjects within a circumscribed territory; relations first and foremost an alliance among sovereign republics which
with other sovereigns are voluntary and contingent and lim­ subscribe to these principles.
ited in kind and scope to transitory military and economic Kant does not go so far as to make the recogni­
alliances as well as cultural and religious affinities; above all, tion o f the sovereignty o f a state depend upon its internal
constitution. Nor would Kant approve “humanitarian inter­ process, must be respected. While the prerogative o f states to
ventions” designed to spread progressive ideals, except in one stipulate some criteria o f incorporation cannot be rejected, we
case: namely civil war and the dissolution o f existing author­ have to ask: which are those incorporation practices that would
ity. This is the fifth o f Kant’s “preliminary articles o f perpetual be impermissible from a moral standpoint and which are those
peace between states” (Kant [1795] 1923, 430; [1795] 1994, 96). practices that are morally indifferent - that is to say, neutral
Kant’s liberalism is also less robust than our more univer­ from the moral point o f view?
salist contemporary understanding in that women, domes­ Kant’s formulations permit us to capture the structural
tic servants, and propertyless apprentices are named by Kant contradictions between universalist and republican ideals o f
“auxiliaries to the commonwealth,” and their legal status is sovereignty in the modern revolutionary period. In conclusion,
made dependent upon the male head o f household. Neverthe­ I want to name this contradiction “the paradox o f democratic
less, in stipulating that a republican constitution “is the original legitimacy” and delineate it systematically.
basis o f every kind o f civil constitution” (Kant [1795] 1923,435;
[1795] 1994) 100), and in linking peace among states to their
The paradox of democratic legitimacy
internal constitutions, Kant paved the way from Westphalian
to a liberal understanding o f sovereignty. It is also remarkable Ideally, democratic rule means that all members o f a
that crossborder relationships which arise out o f the needs of sovereign body are to be respected as bearers o f human rights,
travelers, discoverers, refugees, and asylees were accorded such and that the consociates o f this sovereign freely associate with
a significant role in delineating cosmopolitan right. one another to establish a regime o f self-governance under
Kant clearly demarcated the tensions between the which each is to be considered both author o f the laws and sub­
injunctions o f a universalistic morality to offer temporary ject to them. This ideal o f the original contract, as formulated
sojourn to all and the legal prerogative o f the republican by Jean-Jacques Rousseau and adopted by Kant, is a heuristi-
sovereign not to extend such temporary sojourn to full mem­ cally useful device for capturing the logic o f modern democra­
bership. Contra Kant, I will argue that the right to member­ cies. Modern democracies, unlike their ancient counterparts,
ship o f the temporary resident must be viewed as a human conceive o f their citizens as rights-bearing consociates. The
right which can be justified along the principles o f a univer­ rights o f the citizens rest upon the “rights o f man.” Les droits
salistic morality. The terms and conditions under which long­ de Vhomme etde citoyen do not contradict one another; quite to
term membership can be granted remain the prerogative o f the the contrary, they are coimplicated. This is the idealized logic
republican sovereign. Yet here too human rights constraints o f the modern democratic revolutions following the American
such as non-discrimination, the right o f the immigrant to due and French examples.
 The democratic sovereign draws its legitimacy not and democracy, and even as the conflict between constitution­
merely from its act o f constitution but, equally significantly, alism and popular sovereignty. In each case the logic o f the
from the conformity o f this act to universal principles o f human conflict is the same: to assure that the democratic sovereign
rights that are in some sense said to precede and antedate the will uphold certain constraints upon its will by virtue o f its
will o f the sovereign and in accordance with which the sovereign precommitment to certain formal and substantive interpreta­
undertakes to bind itself. “We, the people,” refers to a particular tion o f rights. Liberal and democratic theorists disagree with
human community, circumscribed in space and time, sharing one another as to the proper balance o f this mix: while strong
a particular culture, history, and legacy; yet this people estab­ liberals want to bind the sovereign will through precommit­
lishes itself as a democratic body by acting in the name o f ments to a list o f human rights, strong democrats reject such a
the “universal.” The tension between universal human rights prepolitical understanding o f rights and argue that they must
claims, and particularistic cultural and national identities, is be open to renegotiation and reinterpretation by the sovereign
constitutive o f democratic legitimacy. Modern democracies act people - admittedly within certain limits.
in the name o f universal principles which are then circum­ Yet this paradox o f democratic legitimacy has a corol­
scribed within a particular civic community. This is the “Janus lary which has been little noted: every act of self-legislation is
face of the modern nation,” in the words of Jürgen Habermas also an act o f self-constitution. “We, the people,” who agree to
(Habermas 1998,115). bind ourselves by these laws, are also defining ourselves as a
Since Rousseau, however, we also know that the will “we” in the very act of self-legislation. It is not only the general
o f the democratic people may be legitimate but unjust, unani­ laws o f self-government which are articulated in this process;
mous but unwise. “The general will” and “the will o f all” may the community that binds itself by these laws defines itself by
not overlap either in theory or in practice. Democratic rule and drawing boundaries as well, and these boundaries are territo­
the claims o f justice may contradict one another. The demo­ rial as well as civic. The will o f the democratic sovereign can
cratic precommitments expressed in the idealized allegiance extend only over the territory under its jurisdiction; democra­
to universal human rights - life, liberty, and property - need cies require borders. Empires have frontiers, while democra­
to be reactualized and renegotiated within actual polities as cies have borders. Democratic rule, unlike imperial dominion,
democratic intentions. Potentially, there is always a conflict is exercised in the name o f some specific constituency and
between an interpretation o f these rights claims which pre­ binds that constituency alone. Therefore, at the same time that
cedes the declared formulations of the sovereign, and the actual the sovereign defines itself territorially, it also defines itself in
enactments o f the democratic people which could potentially civic terms. Those who are full members o f the sovereign body
violate such interpretations. We encounter this conflict in the are distinguished from those who “fall under its protection,”
history o f political thought as the conflict between liberalism but who do not enjoy “full membership rights.” Women and
 slaves, servants, and propertyless white males, non-Christians to remain outsiders. These are the “aliens” and “foreigners”
and non-white races, were historically excluded from member­ amidst the democratic people. Their status is distinct from that
ship in the sovereign body and from the project o f citizenship. of second-class citizens such as women and workers, as well as
They were, in Kant’s famous words, mere “auxiliaries to the from that o f slaves and tribal peoples. This status is governed by
commonwealth” (Kant [1797] 1922,121; [1797] 1994,140). mutual treaties among sovereign entities, as would be the case
The boundaries o f the civil community are o f two with official representatives o f a state power upon the territory
kinds: on the one hand, these boundaries define the status of of the other; and if they are civilians, and live among citizens for
those who hold second-class citizenship status within the polity economic, religious, or other cultural reasons, their rights and
but who can be considered members o f the sovereign people by claims exist in that murky space defined by respect for human
virtue o f cultural, familial, and religious attachments. Women, rights on the one hand and by international customary law on
as well as non-propertied males before the extension o f univer­ the other. They are refugees from religious persecution, mer­
sal suffrage, fell into this category; the status o f these groups is chants and missionaries, migrants and adventurers, explorers
distinct from that o f other residents who not only have second- and fortune-seekers.
class status but who also do not belong to the sovereign people I have circumscribed in general theoretical terms the
by virtue o f relevant identity-based criteria. Such was the status paradox o f democratic legitimacy. The paradox is that the
o f African-American slaves until after the American Civil War republican sovereign should undertake to bind its will by a
and the declaration in 1865 o f the 14th Amendment to the US series o f precommitments to a set o f formal and substantive
Constitution (adopted in 1868) which conferred US citizenship norms, usually referred to as “human rights.” The rights and
upon Black peoples; such was also the status o f American Indi­ claims o f others - be they “auxiliaries to the commonwealth,”
ans who were granted tribal sovereignty. The status o f those o f as women, slaves, and propertyless males were considered to
Jewish faith in the original thirteen colonies that formed the be, or be they subjugated peoples or foreigners - are then nego­
United States can be described as one o f transition from being tiated upon this terrain flanked by human rights on the one
an “auxiliary to the commonwealth” to being a full-fledged hand and sovereignty assertions on the other.
citizen. In what follows I will argue that, while this para­
In addition to these groups are those residents o f dox can never be fully resolved for democracies, its impact
the commonwealth who do not enjoy full citizenship rights can be mitigated through a renegotiation and reiteration of
either because they do not possess the requisite identity cri­ the dual commitments to human rights and sovereign self-
teria through which the people defines itself, or because they determination. Popular sovereignty, which means that those
belong to some other commonwealth, or because they choose who are subject to the law are also its authors, is not identical
with territorial sovereignty. While the demos, as the popular
sovereign, must assert control over a specific territorial domain,
it can also engage in reflexive acts o f self-constitution, whereby “The right to have rights”: Hannah
the boundaries o f the demos can be readjusted. The politics
Arendt on the contradictions
of membership in the age o f the disaggregation o f citizenship
rights is about negotiating the complexities o f full membership
of the nation-state
rights, democratic voice, and territorial residence.
The previous chapter analyzed Kant’s formulation and defense
of cosmopolitan right and argued that the text left unclear
which o f the following premises justified the cosmopolitan
right to hospitality: the right to seek human association, which
in fact, could be viewed as an extension o f the human claim
to freedom; or the premise o f the sphericality o f the earth’s
surface and the juridical fiction o f the common possession of
the earth. Kant’s discussion o f cosmopolitan right, whatever its
shortcomings, delineates a new terrain in the history o f political
thought. In formulating a sphere o f right - in the juridical and
moral senses o f the term - between domestic constitutional
and customary international law, Kant charted a terrain onto
which the nations o f this world began to venture only at the end
two world wars. Kant was concerned that the granting o f the
right to permanent residency (Gastrecht) should remain a priv­
ilege of self-governing republican communities. Naturalization
is a sovereign privilege. The obverse side of naturalization is
“denationalization,” or loss o f citizenship status.
After Kant, it was Hannah Arendt who turned to the
ambiguous legacy o f cosmopolitan law, and who dissected
the paradoxes at the heart o f the territorially based sovereign
state system. One o f the great political thinkers o f the twenti­
eth century, Hannah Arendt argued that the twin phenomena