Reading Note

1

On hospitality: rereading Kant’s

cosmopolitan right

This chapter begins with an analysis of Kant’s understanding

of cosmopolitan right. Kant’s discussion focuses on moral and

legal relations which hold among individuals across bounded

communities, and thereby demarcates a novel domain situated

between the law of specific polities on the one hand and cus-

tomary international law on the other. Katrin Flikschuh states

this clearly: “Kant recognizes three distinct though related lev-

els of rightful relation: the ‘Right of a State’ specifies relations

of Right between persons within a state; the ‘Right of Nations’

pertains to relations of 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 of political membership are to

be localized within this third sphere of jus cosmopoliticum.

“Perpetual Peace” and cosmopolitan right – a contemporary reevaluation

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

by Prussia and revolutionary France, Kant’s essay on “Perpetual

Peace” has enjoyed considerable revival of attention in recent

years (see Bohman and Lutz-Bachmann 1997). What makes

this essay particularly interesting under the current condi-

tions of political globalization is the visionary depth of Kant’s

project for perpetual peace among nations. Kant formulates

25Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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three “definitive articles for perpetual peace among states.”

These read: “The Civil Constitution of Every State shall be

Republican”; “The Law of Nations shall be founded on a Fed-

eration of Free States”; and “The Law of World Citizenship

Shall be Limited to Conditions of Universal Hospitality” (Kant

[1795] 1923, 434–446; [1795] 1994: 99–108).1 Much scholarship

on this essay has focused on the precise legal and political form

that these articles could or would take, and on whether Kant

meant to propose the establishment of a world federation of

republics (eine föderative Vereinigung) or a league of sovereign

nation-states (Völkerbund).

What remains frequently uncommented upon is the

Third Article of “Perpetual Peace,” the only one in fact that

Kant himself explicitly designates with the terminology of the

Weltbürgerrecht. The German reads: “Das Weltbürgerrecht soll

auf Bedingungen der allgemeinen Hospitalität eingeschränkt

sein” (Kant [1795] 1923, 443). Kant himself notes the oddity

of the locution of “hospitality” in this context, and therefore

remarks that “it is not a question of philanthropy but of right.”

In other words, hospitality is not to be understood as a virtue

of sociability, as the kindness and generosity one may show

to strangers who come to one’s land or who become depen-

dent upon one’s acts of kindness through circumstances of

nature or history; hospitality is a “right” which belongs to all

human beings insofar as we view them as potential partic-

ipants in a world republic. But the “right” of hospitality is

1 I have consulted several English translations of Kant’s “Perpetual Peace”

essay, amending the text when necessary. For further information on these

various editions, please consult the bibliography. The first date and page

number refer to the German text, and the second to the English editions.

26Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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odd in that it does not regulate relationships among individ-

uals who are members of a specific civil entity under whose

jurisdiction they stand; this “right” regulates the interactions

of individuals who belong to different civic entities yet who

encounter one another at the margins of bounded communi-

ties. The right of hospitality is situated at the boundaries of

the polity; it delimits civic space by regulating relations among

members and strangers. Hence the right of hospitality occupies

that space between human rights and civil rights, between the

right of humanity in our person and the rights that accrue to

us insofar as we are members of specific republics. Kant writes:

“Hospitality [Wirtbarkeit] means the right of a stranger not to

be treated as an enemy when he arrives in the land of another.

One may refuse to receive him when this can be done without

causing his destruction; but, so long as he peacefully occupies

his place, one may not treat him with hostility. It is not the right

to be a permanent visitor [Gastrecht] that one may demand.

A special contract of beneficence [ein . . . wohltätiger Vertrag]

would be needed in order to give an outsider a right to become

a fellow inhabitant [Hausgenossen] for a certain length of time.

It is only a right of temporary sojourn [ein Besuchsrecht], a

right to associate, which all men have. They have it by virtue

of their common possession [das Recht des gemeinschaftlichen

Besitzes] of the surface of the earth, where, as a globe, they

cannot infinitely disperse and hence must finally tolerate the

presence of each other” (Kant [1795] 1923, 443; cf. 1949, 320).

Kant distinguishes the “right to be a permanent

visitor,” which he calls Gastrecht, from the “temporary right

of sojourn” (Besuchsrecht). The right to be a permanent visitor

is awarded through a freely chosen special agreement which

27Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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goes beyond what is owed to the other morally and what he

is entitled to legally; therefore, Kant names this a wohltätiger

Vertrag, a “contract of beneficence.” It is a special privilege

which the republican sovereign can award to certain foreigners

who abide in their territories, who perform certain functions,

who represent their respective political entities, who engage

in long-term trade, and the like. The droit d’aubaine in pre-

revolutionary France, which granted foreigners certain rights

of residency, the acquisition of property, and the practicing of a

profession, would be a pertinent historical example. The special

trade concessions that the Ottoman empire, China, Japan, and

India granted westerners from the eighteenth century onward

would be others. The Jews in premodern Europe, who after

their persecution through the Inquisition in Spain in the

fifteenth century, spread to the north, to Holland, Britain,

Germany, and other territories, would be another major group

to whose status both the right of hospitality and that of

permanent visitorship would apply.

The right of hospitality entails a claim to temporary

residency which cannot be refused, if such refusal would involve

the destruction – Kant’s word here is Untergang – of the other.

To refuse sojourn to victims of religious wars, to victims of

piracy or ship-wreckage, when such refusal would lead to their

demise, is untenable, Kant writes. What is unclear in Kant’s dis-

cussion is whether such relations among peoples and nations

involve acts of supererogation, going beyond the call of moral

duty, or whether they entail a certain sort of moral claim con-

cerning the recognition of “the rights of humanity in the person

of the other.”

28Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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We may see here the juridical and moral ambivalence

that affects discussions of the right of asylum and refuge to this

day. Are the rights of asylum and refuge “rights” in the sense

of being reciprocal moral obligations which, in some sense or

another, are grounded upon our mutual humanity? Or are these

rights claims in the legal sense of being enforceable norms of

behavior which individuals and groups can hold each other to

and, in particular, force sovereign nation-states to comply with?

Kant’s construction provides no clear answer. The right of hos-

pitality entails a moral claim with potential legal consequences

in that the obligation of the receiving states to grant temporary

residency to foreigners is anchored in a republican cosmopo-

litical order. Such an order does not have a supreme executive

law governing it. In this sense the obligation to show hospital-

ity to foreigners and strangers cannot be enforced; it remains a

voluntarily incurred obligation of the political sovereign. The

right of hospitality expresses all the dilemmas of a republi-

can cosmopolitical order in a nutshell: namely how to create

quasi-legally binding obligations through voluntary commit-

ments and in the absence of an overwhelming sovereign power

with the ultimate right of enforcement.

But what exactly is Kant’s justification for the

“temporary right of sojourn”? Why does this claim bind the

will of the republican sovereign? When reflecting on the

“temporary right of sojourn” (Besuchsrecht), Kant uses two

different premises. One premise justifies the right of tem-

porary sojourn on the basis of the capacity of all human

beings (allen Menschen) to associate – the German reads sich

zur Gesellschaft anzubieten (Kant [1795] 1923, 443). The other

29Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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premise resorts to the juridical construct of a “common pos-

session of the surface of the earth” (gemeinschaftlichen Besitzes

der Oberfläche der Erde) (ibid.). With respect to the sec-

ond principle, Kant suggests that to deny the foreigner and

the stranger the claim to enjoy the land and its resources,

when this can be done peacefully and without endanger-

ing the life and welfare of original inhabitants, would be

unjust.

The juridical construct of a purported common pos-

session of the earth, which has a long and honorable antecedent

in old European jurisprudence, functions as a double-edged

sword in this context. On the one hand, Kant wants to avoid

the justificatory use of this construct to legitimize western colo-

nialist expansion; on the other hand, he wants to base the right

of human beings to enter into civil association with one another

upon the claim that, since the surface of the earth is limited,

at some point or other, we must learn to enjoy its resources in

common with others.

To understand the first of Kant’s worries, recall here

John Locke’s argument in The Second Treatise of Civil Govern-

ment. “In the beginning God gave the earth to men in common

to enjoy” (Locke [1690] 1980, 19). The earth is a res nullius,

belonging to all and none until it is appropriated; but to argue

that the earth is a common possession of all human beings is,

in effect, to disregard property relations historically existing

among communities that have already settled on the land. The

justification of the claim to property thus shifts from the his-

torical title that legitimizes it to the modes of appropriation

whereby what commonly belongs to a community can then be

appropriated as “mine” or “thine.”

30Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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Through a patently circular argument, Locke main-

tains that private property emerges through the fact that the

means of appropriation are themselves private: “the labor of

his body, and the work of his hands, we may say, are prop-

erly his . . . this nobody has any right to but himself ” (ibid.).

In the context of European expansion to the Americas in the

seventeenth century, Locke’s argument served to justify the

colonial appropriation of the land precisely with the claim that

the earth, being given to all “in common,” could then be justi-

fiably appropriated by the industrious and the thrifty, without

harming existing inhabitants and, in fact, for the benefit of all

(Tully 1993).

Kant explicitly rejects the res nullius thesis in its Lock-

ean form, seeing in it a thinly disguised formula for expro-

priating non-European peoples who do not have the capacity

to resist imperialist onslaughts (Kant [1795] 1994, 107; see also

Muthu, 1999, 2000). He supports the Chinese and the Japanese

in their attempt to keep European traders at a distance. What

does the premise of the “common possession of the earth”

really justify, then? Once the earth has been appropriated, oth-

ers no longer have a claim to possess it. Existing property rela-

tions must be respected. If so, every community has the right

to defend itself against those who seek access to its territo-

ries. Apart from the assurance that turning away the ones who

seek hospitality would not cause “their destruction” – admit-

tedly itself a vague formulation – the dire needs of others do

not constitute sufficient grounds to bend the will of existing

sovereign communities. The claim to the “common possession

of the earth” does disappointingly little to explicate the basis

of cosmopolitan right.

31Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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The sphericality of the earth and cosmopolitan right

In Kant and Modern Political Philosophy, Katrin

Flikschuh argues that the original common possession of the

earth, and in particular the limited spherical character of the

earth (der Erdkugel), plays a much more fundamental role in

Kant’s justification in cosmopolitan right than I am claiming

that it does. Flikschuh’s argument is worth considering in some

detail. Flikschuh bases this reading not on Kant’s “Perpetual

Peace” essay but on his Rechtslehre, the first half of Die Meta-

physik der Sitten (The Metaphysics of Morals). Two passages are

of special relevance here:

The spherical surface of the earth unites all the places on

its surface; for if its surface were an unbounded plane, men

could be so dispersed on it that they would not come into

any community with one another, and community would

then not be a necessary result of their existence on the

earth. (Kant [1797] 1922, 66; as quoted in Flikschuh 2000,

133)2

Since the earth’s surface is not unlimited but closed, the

concepts of the Right of a state and of a Right of nations

lead inevitably to the Idea of a Right for all nations (ius

gentium) or cosmopolitan Right (ius cosmopoliticum). So if

the principle of outer freedom limited by law is lacking in

any of these three possible forms of rightful condition, the

framework for all others is unavoidably underdetermined

2 Since there are some subtle discrepancies between various English

editions and Flikschuh’s translations, I have kept references to her

versions of the relevant passages.

32Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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and must finally collapse. (Kant, [1797] 1922, 117–118; as

quoted in Flikschuh 2000, 179)

Without delving into details of discrepancies which

may exist between the “Perpetual Peace” essay and Kant’s more

difficult and fuller discussion in The Metaphysical Elements of

Justice, for my purposes the most important question is this:

does Kant mean to derive or deduce cosmopolitan right from

the fact of the sphericality of the earth’s surface? What is the

status of this fact in Kant’s moral argument? If indeed we were

to assume that Kant used the sphericality of the earth as a jus-

tificatory premise, wouldn’t we then have to conclude that he

had committed the naturalistic fallacy? Just because all castles

everywhere are built on sand, it still does not follow that mine

should be so built as well. Likewise, just because I must, some-

where and at some point, come into contact with other human

beings and cannot flee them forever, this does not imply that

upon such contact I must treat them with the respect and dig-

nity to be accorded every human being.

Flikschuh does not maintain in fact that the spher-

icality of the earth’s surface is a justificatory premise: “The

earth’s spherical surface is that empirical given space for pos-

sible agency within which human beings are constrained to

articulate their claims to freedom of choice and action . . . To the

contrary, the global boundary constitutes an objective given,

unavoidable condition of empirical reality within the limits

of which human agents are constrained to establish possible

relations of Right” (2000, 133). The spherical surface of the

earth constitutes a circumstance of justice but does not function

as a moral justificatory premise to ground cosmopolitan right.

33Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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“Circumstances of justice” define indeed “the conditions of our

possible agency,” as Flikschuh observes. Just as the facts that we

are all mortal beings, physically members of the same species

and afflicted by similar basic needs to assure our survival con-

stitute constraining conditions in our reasoning about justice,

so too the sphericality of the earth’s surface functions for Kant

as a limiting condition of “outer freedom.” This, I think, is

amply clear from Kant’s phrase, “So if the principle of outer

freedom limited by law is lacking in any of these three possible

forms of rightful condition . . .” (Kant [1797] 1922, 118). The

“principle of outer freedom” is the justificatory premise in the

argument which leads to the establishment of cosmopolitan

right. Since, however, exercising our external freedom means

that sooner or later, under certain circumstances, we will need

to cross boundaries and come into contact with fellow human

beings from other lands and cultures, we need to recognize the

following: first, that the earth’s surface will be apportioned into

the territory of individual republics;3 second, that conditions

of right regulating intra- as well as interrepublican transactions

3 I am foregoing here a consideration of the considerable difficulties of

Kant’s justification of property rights. Kant’s dilemma appears to have

been the justification of the private apportionment of the earth’s surface

without recourse to originary acts of occupation, since the latter, in Kant’s

view, establish not a condition of right but rather of might. Nevertheless,

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

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” (Kant

[1797] 1922, 49). The lex permissiva holds not only within individual

republics but also across republics. In the light of this stipulation, we also

34Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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are necessary; and finally that among those conditions are those

pertaining to the rights of hospitality and temporary sojourn.

In the next chapter I hope to show that a reconstruction of the

Kantian concept of the right to external freedom would lead

to a more extensive system of cosmopolitan right than Kant

himself offered us.

The contemporary relevance of Kant’s concept of “temporary sojourn”

Kant’s claim that first entry cannot be denied to those

who seek it if this would result in their “destruction” (Unter-

gang) has become incorporated into the Geneva Convention

on the Status of Refugees as the principle of “non-refoulement”

(United Nations 1951). This principle obliges signatory states

not to forcibly return refugees and asylum seekers to their coun-

tries of origin if doing so would pose a clear danger to their lives

and freedom. Of course, just as sovereign states can manipu-

late this article to define life and freedom more or less narrowly

when it fits their purposes, it is also possible to circumvent the

“non-refoulement” clause by depositing refugees and asylees in

so-called safe third countries. Kant’s formulations clearly fore-

saw as well as justified such balancing acts as between the moral

obligations of states to those who seek refuge in their midst and

see that the claim that only the republican sovereign can grant permanent

visitation rights is based on the right of the republican sovereign to control

“privately” a portion of the “common possession” of the earth’s surface.

Bounded territoriality is thus made a precondition of the exercise of

external freedom by Kant. Indeed, the recognition of “rightful borders”

is essential if perpetual peace among nations is ever to be achieved.

35Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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to their own welfare and interests. The lexical ordering of the

two claims – the moral needs of others versus legitimate self-

interest – is vague, except in the most obvious cases when the

life and limb of refugees would be endangered by denying them

the right of entry; apart from such cases, however, the obliga-

tion to respect the liberty and welfare of the guest can permit

a narrow interpretation on the part of the sovereign to whom

it is addressed, and need not be considered an unconditional

duty.

The universal right to hospitality which is due to every

human person imposes upon us an imperfect moral duty to

help and offer shelter to those whose life, limb, and well-being

are endangered. This duty is “imperfect” – i.e., conditional – in

that it can permit exceptions, and can be overridden by legit-

imate grounds of self-preservation. There is no obligation to

shelter the other when doing so would endanger one’s own life

and limb. It is disputed in moral philosophy as to how widely

or narrowly the obligation to the other should be interpreted,4

and it is equally controversial how we should understand legit-

imate grounds of self-preservation: is it morally permissible to

turn the needy away because we think that they are altering our

cultural mores? Does the preservation of culture constitute a

legitimate basis of self-preservation? Is it morally permissible

4 Cf. Henry Sidgwick: “. . . but those who are in distress or urgent need have

a claim on us for special kindness. These are generally recognized claims:

but we find considerable difficulty and divergence, when we attempt to

determine more precisely their extent and relative obligation: and the

divergence becomes indefinitely greater when we compare the customs

and common opinions now existing among ourselves in respect of such

claims, with those of other ages and countries” (Sidgwick [1874] 1962,

246). For some recent treatments, see O’Neill 1996; Sheffler 2001.

36Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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to deny asylum when admitting large numbers of needy peo-

ples into our territories would cause a decline in our standards

of living? And what amount of decline in welfare is morally

permissible before it can be invoked as grounds for denying

entry to the persecuted, the needy, and the oppressed? In for-

mulating their refugee and asylum policies, governments often

implicitly utilize this distinction between perfect and imper-

fect duties, while human rights groups, as well as advocates of

asylees and refugees, are concerned to show that the obligation

to show hospitality to those in dire need should not be com-

promised by self-regarding interests alone. In chapter 3 I shall

return to the question of obligations across borders and argue

that the construal of such obligations in the light of the narrow

dichotomy of legitimate self-preservation versus the duties to

others is inadequate. The international system of peoples and

states is characterized by such extensive interdependencies and

the historical crisscrossing of fates and fortunes that the scope

of special as well as generalized moral obligations to our fellow

human beings far transcends the perspective of the territorially

bounded state-centric system. Instead, I shall defend the per-

spective of a world society as the correct vantage point from

which to reason about obligations across borders.

It may be objected that such criticisms of Kant are

anachronistic, for what motivates Kant’s formulations of cos-

mopolitan right are not concerns for the needs of the poor,

the downtrodden, the persecuted, and the oppressed as they

search for safe haven, but rather the Enlightenment preoccu-

pation of Europeans to seek contact with other peoples and to

appropriate the riches of other parts of the world. The right

to seek human association, or in the literal translation of the

37Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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German, “to offer oneself to civil association [Gesellschaft] with

others,” and to seek “approach” – Zugang – rather than entry –

Eingang – is for Kant a fundamental human right. This is to

be distinguished from the res nullius thesis; in fact, the right to

seek human association is at the core of what it means to be a

Weltbürger. In true Enlightenment fashion, Kant celebrates the

ship and the camel (“the desert ship,” as he calls the latter) for

reducing distances, breaking down barriers among local com-

munities, and bringing the human race together. To deny “the

possibility of seeking to communicate with prior inhabitants,”

or ein Verkehr zu suchen (Kant [1795] 1923, 444; 1949, 321), is

contrary to cosmopolitan right. The terminology of Verkehr zu

suchen, which can extend to commercial as well as religious,

cultural, and financial contacts, betrays Kant’s hope that, even

if the motives of western powers in seeking to encompass the

face of the globe may be less than laudatory, through increased

contacts with other peoples and culture, “the human race can

gradually be brought closer and closer to a cosmopolitan con-

stitution” (eine weltbürgerliche Verfassung) (Kant [1795] 1923,

444; [1795] 1994, 106).

While Kant’s focus fell, for understandable historical

reasons, upon the right of temporary sojourn, my concern is

with the unbridgeable gap he suggests exists between the right

of temporary sojourn and permanent residency. The first is a

right, the second a privilege; granting the first to strangers is

an obligation for a republican sovereign, whereas allowing the

second is a “contract of beneficence.” The rights of strangers

and foreigners do not extend beyond the peaceful pursuit of

their means of livelihood upon the territory of another. What

about the right to political membership, then? Under what

38Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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conditions, if any, can the guest become a member of the

republican sovereign? How are the boundaries of the sovereign

defined? Kant envisages a world condition in which all mem-

bers of the human race become participants in a civil order and

enter into a condition of lawful association with one another.

Yet this civil condition of lawful coexistence is not equivalent

to membership in a republican polity. Kant’s cosmopolitan cit-

izens still need their individual republics to be citizens at all.

This is why Kant is so careful to distinguish a “world gov-

ernment” from a “world federation.” A “world government,”

which he argues would result only in a “universal monarchy,”

would be a “soulless despotism,” whereas a federative union

(eine föderative Vereinigung) would still permit the exercise of

citizenship within bounded communities (Kant [1795] 1923,

453; 1949, 328).5

We are left with an ambiguous Kantian legacy: while

liberals attempt to expand the circumstances to which first-

admittance obligations would apply by building more condi-

tions into the phrase “the destruction of the other,” such as

economic welfare considerations (see Kleingeld 1998, 79–85),

civic republicans and defenders of national sovereignty point

to Kant’s condemnation of world government, as well as to

his insistence upon the prerogative of the sovereign to grant

membership, in order to justify the rights of national states to

5 See Istvan Hont’s prescient remarks: “If the ‘crisis of nation-states’ is

linked to a weakness in the legitimation of their territorial specification,

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

always been in ‘crisis.’ The only possible world of territorial security is

the world of perpetual peace” (Hont 1995, 176).

39Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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police their borders (Martens 1996, 337–339). Kant wanted to

justify the expansion of commercial and maritime capitalism

in his time, insofar as these developments brought the human

race into closer contact, without condoning European impe-

rialism. The cosmopolitan right of hospitality gives one the

right of peaceful temporary sojourn, but it does not entitle

one to plunder and exploit, conquer and overwhelm by supe-

rior force those among whom one is seeking sojourn. Yet the

cosmopolitan right is a right precisely because it is grounded

upon the common humanity of each and every person and

his or her freedom of will which also includes the freedom

to travel beyond the confines of one’s cultural, religious, and

ethnocentric walls.

The Kantian cosmopolitan legacy

Kant’s construction and justification of the cosmopoli-

tan right of temporary sojourn will form a reference point

for much of the following discussion. Kant’s “Perpetual

Peace” essay signaled a watershed between two conceptions of

sovereignty and paved the way for the transition from the first to

the second. We can name these “Westphalian sovereignty” and

“liberal international sovereignty” (see Held 2002, 4–6; Krasner

1999, 20–25). In the classical Westphalian regime of sovereignty,

states are free and equal; they enjoy ultimate authority over all

objects and subjects within a circumscribed territory; relations

with other sovereigns are voluntary and contingent and lim-

ited in kind and scope to transitory military and economic

alliances as well as cultural and religious affinities; above all,

40Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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states “regard cross-border processes as a ‘private matter’ con-

cerning only those immediately affected” (Held 2002, 4).

By contrast, in conceptions of liberal international

sovereignty, the formal equality of states is increasingly depen-

dent upon their subscribing to common values and principles

such as the observance of human rights and the rule of law

and respect for democratic self-determination. Sovereignty no

longer means ultimate and arbitrary authority; states that treat

their citizens in violation of certain norms, that close borders,

prevent a free market, limit freedom of speech and association,

and the like, are thought not to belong within a specific society

of states or alliances; the anchoring of domestic principles in

institutions shared with others is crucial.

Insofar as Article One of Kant’s “Perpetual Peace” reads

that “The Civil Constitution of Every State shall be Republi-

can,” Kant certainly can be seen to straddle the classical West-

phalian and the liberal-international models of sovereignty.

The demand that the constitutions of free and equal states

should be republican imposes on these states the three condi-

tions of republican government: (1) freedom for all members of

a society (as men); (2) the dependence of everyone upon a sin-

gle common legislation (as subjects); (3) the principle of legal

equality for everyone (as citizens) (Kant [1795] 1923, 434–443;

[1795] 1994, 99–105). Whatever its precise political form may be,

the league of nations – das Völkerbund – envisaged by Kant is

first and foremost an alliance among sovereign republics which

subscribe to these principles.

Kant does not go so far as to make the recogni-

tion of the sovereignty of a state depend upon its internal

41Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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constitution. Nor would Kant approve “humanitarian inter-

ventions” designed to spread progressive ideals, except in one

case: namely civil war and the dissolution of existing author-

ity. This is the fifth of Kant’s “preliminary articles of perpetual

peace between states” (Kant [1795] 1923, 430; [1795] 1994, 96).

Kant’s liberalism is also less robust than our more univer-

salist contemporary understanding in that women, domes-

tic servants, and propertyless apprentices are named by Kant

“auxiliaries to the commonwealth,” and their legal status is

made dependent upon the male head of household. Neverthe-

less, in stipulating that a republican constitution “is the original

basis of every kind of civil constitution” (Kant [1795] 1923, 435;

[1795] 1994, 100), and in linking peace among states to their

internal constitutions, Kant paved the way from Westphalian

to a liberal understanding of sovereignty. It is also remarkable

that crossborder relationships which arise out of the needs of

travelers, discoverers, refugees, and asylees were accorded such

a significant role in delineating cosmopolitan right.

Kant clearly demarcated the tensions between the

injunctions of a universalistic morality to offer temporary

sojourn to all and the legal prerogative of the republican

sovereign not to extend such temporary sojourn to full mem-

bership. Contra Kant, I will argue that the right to member-

ship of the temporary resident must be viewed as a human

right which can be justified along the principles of a univer-

salistic morality. The terms and conditions under which long-

term membership can be granted remain the prerogative of the

republican sovereign. Yet here too human rights constraints

such as non-discrimination, the right of the immigrant to due

42Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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process, must be respected. While the prerogative of states to

stipulate some criteria of incorporation cannot be rejected, we

have to ask: which are those incorporation practices that would

be impermissible from a moral standpoint and which are those

practices that are morally indifferent – that is to say, neutral

from the moral point of view?

Kant’s formulations permit us to capture the structural

contradictions between universalist and republican ideals of

sovereignty in the modern revolutionary period. In conclusion,

I want to name this contradiction “the paradox of democratic

legitimacy” and delineate it systematically.

The paradox of democratic legitimacy

Ideally, democratic rule means that all members of a

sovereign body are to be respected as bearers of human rights,

and that the consociates of this sovereign freely associate with

one another to establish a regime of self-governance under

which each is to be considered both author of the laws and sub-

ject to them. This ideal of the original contract, as formulated

by Jean-Jacques Rousseau and adopted by Kant, is a heuristi-

cally useful device for capturing the logic of modern democra-

cies. Modern democracies, unlike their ancient counterparts,

conceive of their citizens as rights-bearing consociates. The

rights of the citizens rest upon the “rights of man.” Les droits

de l’homme et de citoyen do not contradict one another; quite to

the contrary, they are coimplicated. This is the idealized logic

of the modern democratic revolutions following the American

and French examples.

43Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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The democratic sovereign draws its legitimacy not

merely from its act of constitution but, equally significantly,

from the conformity of this act to universal principles of human

rights that are in some sense said to precede and antedate the

will of the sovereign and in accordance with which the sovereign

undertakes to bind itself. “We, the people,” refers to a particular

human community, circumscribed in space and time, sharing

a particular culture, history, and legacy; yet this people estab-

lishes itself as a democratic body by acting in the name of

the “universal.” The tension between universal human rights

claims, and particularistic cultural and national identities, is

constitutive of democratic legitimacy. Modern democracies act

in the name of universal principles which are then circum-

scribed within a particular civic community. This is the “Janus

face of the modern nation,” in the words of Jürgen Habermas

(Habermas 1998, 115).

Since Rousseau, however, we also know that the will

of the democratic people may be legitimate but unjust, unani-

mous but unwise. “The general will” and “the will of all” may

not overlap either in theory or in practice. Democratic rule and

the claims of justice may contradict one another. The demo-

cratic precommitments expressed in the idealized allegiance

to universal human rights – life, liberty, and property – need

to be reactualized and renegotiated within actual polities as

democratic intentions. Potentially, there is always a conflict

between an interpretation of these rights claims which pre-

cedes the declared formulations of the sovereign, and the actual

enactments of the democratic people which could potentially

violate such interpretations. We encounter this conflict in the

history of political thought as the conflict between liberalism

44Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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and democracy, and even as the conflict between constitution-

alism and popular sovereignty. In each case the logic of the

conflict is the same: to assure that the democratic sovereign

will uphold certain constraints upon its will by virtue of its

precommitment to certain formal and substantive interpreta-

tion of rights. Liberal and democratic theorists disagree with

one another as to the proper balance of this mix: while strong

liberals want to bind the sovereign will through precommit-

ments to a list of human rights, strong democrats reject such a

prepolitical understanding of rights and argue that they must

be open to renegotiation and reinterpretation by the sovereign

people – admittedly within certain limits.

Yet this paradox of democratic legitimacy has a corol-

lary which has been little noted: every act of self-legislation is

also an act of self-constitution. “We, the people,” who agree to

bind ourselves by these laws, are also defining ourselves as a

“we” in the very act of self-legislation. It is not only the general

laws of self-government which are articulated in this process;

the community that binds itself by these laws defines itself by

drawing boundaries as well, and these boundaries are territo-

rial as well as civic. The will of the democratic sovereign can

extend only over the territory under its jurisdiction; democra-

cies require borders. Empires have frontiers, while democra-

cies have borders. Democratic rule, unlike imperial dominion,

is exercised in the name of some specific constituency and

binds that constituency alone. Therefore, at the same time that

the sovereign defines itself territorially, it also defines itself in

civic terms. Those who are full members of the sovereign body

are distinguished from those who “fall under its protection,”

but who do not enjoy “full membership rights.” Women and

45Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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slaves, servants, and propertyless white males, non-Christians

and non-white races, were historically excluded from member-

ship in the sovereign body and from the project of citizenship.

They were, in Kant’s famous words, mere “auxiliaries to the

commonwealth” (Kant [1797] 1922, 121; [1797] 1994, 140).

The boundaries of the civil community are of two

kinds: on the one hand, these boundaries define the status of

those who hold second-class citizenship status within the polity

but who can be considered members of the sovereign people by

virtue of cultural, familial, and religious attachments. Women,

as well as non-propertied males before the extension of univer-

sal suffrage, fell into this category; the status of these groups is

distinct from that of other residents who not only have second-

class status but who also do not belong to the sovereign people

by virtue of relevant identity-based criteria. Such was the status

of African-American slaves until after the American Civil War

and the declaration in 1865 of the 14th Amendment to the US

Constitution (adopted in 1868) which conferred US citizenship

upon Black peoples; such was also the status of American Indi-

ans who were granted tribal sovereignty. The status of those of

Jewish faith in the original thirteen colonies that formed the

United States can be described as one of transition from being

an “auxiliary to the commonwealth” to being a full-fledged

citizen.

In addition to these groups are those residents of

the commonwealth who do not enjoy full citizenship rights

either because they do not possess the requisite identity cri-

teria through which the people defines itself, or because they

belong to some other commonwealth, or because they choose

46Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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to remain outsiders. These are the “aliens” and “foreigners”

amidst the democratic people. Their status is distinct from that

of second-class citizens such as women and workers, as well as

from that of slaves and tribal peoples. This status is governed by

mutual treaties among sovereign entities, as would be the case

with official representatives of a state power upon the territory

of the other; and if they are civilians, and live among citizens for

economic, religious, or other cultural reasons, their rights and

claims exist in that murky space defined by respect for human

rights on the one hand and by international customary law on

the other. They are refugees from religious persecution, mer-

chants and missionaries, migrants and adventurers, explorers

and fortune-seekers.

I have circumscribed in general theoretical terms the

paradox of democratic legitimacy. The paradox is that the

republican sovereign should undertake to bind its will by a

series of precommitments to a set of formal and substantive

norms, usually referred to as “human rights.” The rights and

claims of others – be they “auxiliaries to the commonwealth,”

as women, slaves, and propertyless males were considered to

be, or be they subjugated peoples or foreigners – are then nego-

tiated upon this terrain flanked by human rights on the one

hand and sovereignty assertions on the other.

In what follows I will argue that, while this para-

dox can never be fully resolved for democracies, its impact

can be mitigated through a renegotiation and reiteration of

the dual commitments to human rights and sovereign self-

determination. Popular sovereignty, which means that those

who are subject to the law are also its authors, is not identical

47Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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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 of self-constitution, whereby

the boundaries of the demos can be readjusted. The politics

of membership in the age of the disaggregation of citizenship

rights is about negotiating the complexities of full membership

rights, democratic voice, and territorial residence.

48Benhabib, S. (2004). The rights of others : Aliens, residents, and citizens. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from westminster on 2021-10-09 22:18:54.

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