After introducing it under the caption “Cosmopolitan right shall be limited to conditions of universal hospitality,” Kant begins his discussion of the Third Definitive Article to the Perpetual Peace with the following comments:
Here, as in the preceding articles, it is not a question of philanthropy but of right, so that hospitality (hospitableness) [Hospitalität (Wirtbarkeit)] means the right of a foreigner not to be treated with hostility because he has arrived on the land of another. The other can turn him away, if this can be done without destroying him, but as long as he behaves peaceably where he is [auf seinem Platz], he cannot be treated with hostility. What he can claim is not the right to be a guest [Gastrecht] (for this a special beneficent pact would be required, making him a member of the household [Hausgenossen] for a certain time), but the right to visit [Besuchsrecht]…Footnote 1
Although it does not feature in the later Doctrine of Right, the concept of hospitality has nonetheless given rise to a small cottage industry. This is in part because of the contrast between the “enigmatic” fashion of its description and its “obvious centrality” to Kant's general theory of law,Footnote 2 and because of the pressing need for a moral response to the massive waves of migration produced by contemporary globalization. Amid the large amount of ink spilled on the topic, one thing has mostly escaped comment: the word Wirtbarkeit, included in parentheses for elucidation. This paper argues that Kant is referring to innkeeping, such that cosmopolitan right and the corresponding obligations of receiving states may be explained to some extent by analogy to the law of innkeeping.
Section I begins by arguing that popular interpretations of the concept of hospitality as “welcome” are incompatible with Kant's fundamental commitments in his practical philosophy. Section II returns to the passage from the Third Definitive Article, and demonstrates the textual parallels with the titles of the Digest of Justinian concerning the obligations of innkeepers. It then briefly summarizes the history of the law of innkeeping, from which certain themes arise that will be relevant to the later theoretical discussion. Section III sketches out the basic structure of Kant's legal philosophy as expressed in the Doctrine of Right. Finally, Section IV builds on previous sections to stake a position in the central debate surrounding the nature of cosmopolitan right. It argues that cosmopolitan right arises exclusively from the innate right to freedom, rather than from an “acquired” entitlement to equal distributive shares of the earth's resources, or from a right to be somewhere. Similarly, a receiving state's cosmopolitan obligation arises simply from its status as a public person, and not from any kind of proprietorship over sections of the earth's surface.
Some final caveats. Neither the discussion of the legal history of innkeeping nor the use of the language of modeling or analogy are meant to suggest that Kant constructs cosmopolitan right through a sort of Dworkinian, interpretive rationalization of the positive legal practices he saw around him. Rather, the legal commonplaces he calls on in his writings are not used as evidence, much less as justifications, but as illustrations of his theoretical claims. The same applies here. References are made interchangeably to Roman and English law because the common law of bailment is almost wholly civilian in origin,Footnote 3 with the law of innkeeping having had a particularly close parallel development between England and the continent.Footnote 4
I. HOSPITALITY AS WELCOME—SOME PROBLEMS
Translated into English, the string “hospitality (hospitableness)” seems tautological: the word in the brackets does nothing to explain the italicized technical term preceding it. Nevertheless, Mary Gregor's editorial decision is understandable. “Hospitality” sounds like the ethical sensibility shown by hosts to guests,Footnote 5 and this intuition seems to be confirmed by the fact that “Wirtbar” is defined in Grimm's Dictionary as an early eighteenth-century poetic expression for “gastlich, einladend, freundlich.”Footnote 6 Jacques Derrida, one of the very few writers to pay attention to the word Wirtbarkeit, offers a similar interpretation:
Wirt… is at the same time the patron and the host [hôte], the host who receives the Gast, the Gastgeber, the patron of a hotel or restaurant. Wirtlich, like gastlich, means “hospitable”, “welcoming.” Wirtshaus is the café, the cabaret, the inn, the place that accommodates. And Wirt governs the whole lexicon of Wirtschaft, which is to say, economy and, thus, oikonomia, law of the household.Footnote 7
Likewise, Sarah Holtman interprets cosmopolitan right as connoting certain “social graces” of civility and hospitality, which may be thought of “as at once signs of, and helpmates to, moral virtue, which for the Kantian is itself a helpmate to justice,”Footnote 8 while Seyla Benhabib remarks that it is “unclear … whether such relations among peoples and nations involve acts of supererogation, going beyond the call of moral duty… .”Footnote 9 In a series of dialogues with Jürgen Habermas following the September 2001 attacks, Derrida similarly describes hospitality as almost like courage:
Pure and unconditional hospitality, hospitality itself, opens or is in advance open to someone who is neither expected nor invited … The visit might actually be very dangerous, and we must not ignore this fact, but would a hospitality without risk, a hospitality backed by certain assurances, a hospitality protected by an immune system against the wholly other, be true hospitality?Footnote 10
For such reasons, Derrida concludes that the Kantian hospitality is hopelessly contradictory; it envisages the reception of the visitor only “on the condition that the host, the Wirt… maintains his own authority in his own home… thereby affirm(ing) the law of hospitality as the law of the household, oikonomia, the law of his household, the law of a place (house, hotel, hospital, hospice, family, city, nation, language, etc.) …”Footnote 11 Likewise, Benhabib considers that the concept of cosmopolitan rights of asylum suffers from a fundamental confusion as to whether they are legally enforceable norms or merely “reciprocal moral obligations” that states are not compelled to recognize.Footnote 12
The first problem with such interpretations, and why they end in contradiction, is that they ignore Kant's warning that he is talking about rights and not philanthropy. He reiterates this point in the Doctrine of Right, which states that cosmopolitan right is not “a philanthropic (ethical) principle but a principle having to do with rights.”Footnote 13 In fact, this distinction between right and virtue constitutes the core of Kant's practical philosophy. As a fundamental matter, law has nothing to do with the advancement of virtue, because acts purporting to fulfill duties of virtue are worthless unless done purely for the sake of the moral end. A shopkeeper does not fulfill any duties of virtue if he deals honestly with his customers only in order to retain their long-term patronage. Likewise, laws compelling honesty on pain of sanction do nothing to advance the virtue of honesty, because any resulting honest dealing would be for the sake of complying with the law rather than for the sake of honesty itself. Simply put, a legal obligation of welcome does not make sense; you cannot feel welcome if your host is legally required to be nice to you. The idea of welcome is conceivable only because hosts are allowed to be awful to their guests.
Instead, the sole principle structuring right is the idea of “external freedom”; that is, the ability to make choices with the means at your disposal in a manner compatible with a like ability on the part of all other persons to do the same.Footnote 14 In contrast to virtue, all that is needed to fulfill duties of right is compliance with forms of interaction compatible with all persons making choices for themselves using the means they rightfully have. Whether or not the substance of a choice is ethically commendable is a separate and subsequent question. This why the Doctrine of Right comes before the Doctrine of Virtue: for Kant, one must first envisage the conditions under which freedom is assured for all persons forever—peace. Only then can we begin to talk about how to be a good person, because unless you are free, your choices are not yours to be praised or blamed for. This basic idea is illustrated by the remark that cosmopolitan right is simply the “rational idea of a peaceful, even if not friendly, thoroughgoing community of all nations on the earth… .”Footnote 15 Peace is made between enemies, not friends. Afterward, they may go on to become friends, or they may not. Only after peace is conceived of is it worthwhile or even possible to think about friendliness, civility, or other supererogatory social graces between nations. Justice is the helpmate to virtue, not the other way round.
The second problem is that the reliance on the figure of a master of a household is difficult to reconcile with the general distinction between private and public law. Admittedly, Kant often likens states to parents, for instance when he observes that
As natives of a country, those who constitute a nation can be looked upon analogously to descendants of the same ancestors (congeniti) even though they are not. Yet in an intellectual sense and from the perspective of rights, since they are born of the same mother (the republic) they constitute as it were one family (gens, natio)… .Footnote 16
This comparison, however, only emphasizes the difference between the republic and a private household. The former envisages a materfamilias “in an intellectual sense,” but contrary to Derrida, there is no official language, religion, or ethnicity in her household. Accordingly, Derrida's notion of the “laws of a household” is un-Kantian insofar as it assumes the preservation of ethnic, religious, or cultural bonds to be a proper state function.Footnote 17
Thirdly, to imagine that Kantian cosmopolitan right imposes a duty to welcome visitors, or to criticize it as othering and exclusionary of them, is to gloss over his deep and persistent opposition to European colonialism and imperialism.Footnote 18 One of the crueler ironies of history is that the figure of the refugee played a central role in justifying those projects. Consider that Grotius begins the Free Sea—a legal opinion commissioned by the Dutch East India Company—with a lamentation:
What men, what monsters, what inhuman race,
What laws, what barbarous customs of the place,
Shut up a desert shore to drowning men,
And drive us to the cruel seas again?Footnote 19
Vitoria had earlier used these same lines from the Aeneid to defend the Spanish conquest of the Native Americans as a just war.Footnote 20 In fact, refugees play an increasingly marginal role as Kant develops the concept of cosmopolitan right: the Draft for the Perpetual Peace mentions shipwreck victims and sailors caught in storms in passing as having rights of refuge,Footnote 21 these specific examples are omitted in the final version, and the Doctrine of Right does not mention them at all. In contrast, the critique of colonialism becomes increasingly prominent. Kant devotes more than a page to this topic in the Draft,Footnote 22 and includes a blistering passage in the published version, in which he takes note of the curious fact that European trading companies in the Sugar Islands were constantly teetering on the brink of insolvency despite practicing the “cruelest and most calculated slavery” there. Given their abject failure as commercial enterprises, Kant speculates that their real function was to train sailors for wars back home in Europe on behalf of princes who made “much ado of their piety … while they drink wrongfulness like water… .”Footnote 23 Finally, the section on Cosmopolitan Right in the Doctrine of Right is almost entirely a critique of European settlement and colonization.
Kant does not just condemn the enslavement of colonized peoples as wrongful; he also emphasizes the corruption this brings on the colonizing state. This same claim was expressed powerfully by one of his contemporaries in the course of what may have been the first campaign in history to prosecute a multinational corporation for extraterritorial human rights violations:
In India all the vices operate by which sudden fortune is acquired; in England are often displayed, by the same persons, the virtues which dispense hereditary wealth… . They marry into your families; they enter into your senate; they ease your estates by loans … there is scarcely a house in the kingdom that does not feel some concern and interest, that makes all reform of our eastern government appear officious and disgusting; and, on the whole, a most discouraging attempt.Footnote 24
This is what Kant means when he says that “a violation of right on one place of the earth is felt in all… .”Footnote 25 Kant's statement is not, as might be imagined, intended as a justification for humanitarian interventions or the “responsibility to protect.” Instead, it is a warning that colonialism always corrupts the colonizer. The corresponding sentence in the Draft is emphatic about this: it speaks of faraway atrocities that ultimately set the mother country ablaze with war.Footnote 26 Kant's “poor and minimal”Footnote 27 definition of cosmopolitan right is not a bug in his legal-political theory; it is the feature. It permits a clean break from earlier writers who, by formulating thick rights to visit, trade, and proselytize, effectively supplied the intellectual foundations for European colonialism, and thus the conditions for endless war.
For these reasons, Hospitalität cannot mean “hospitableness,” as Mary Gregor translates it, but must have legal significance. In this regard, however, Derrida might nevertheless be on to something. Recall his observation that Wirtbarkeit is also suggestive of “the café, the cabaret, the inn… .”
II. HOSPITALITY AND THE LAW OF INNKEEPING
Of the 432 titles of the Digest of Justinian, two deal with the obligations of innkeepers, alongside those of ships’ masters and keepers of stables. Consider the passage by Ulpian on the “Action for Theft Against Ships’ Masters, Innkeepers, and Liverymen,” or furti adversus nautas caupones stabularios:
The innkeeper is answerable for the deeds of those whom he has in the inn to run the establishment as also of those who reside in the inn; he is not answerable for the acts of passing travellers. For an innkeeper or liveryman is not regarded as choosing his own traveller and cannot refuse those making a journey; but in a way, the innkeeper does select his permanent residents, since he does not reject them, and so should be answerable for what they do.Footnote 28 (emphasis added)
Ulpian's distinction between passing travelers, whom the innkeeper cannot refuse, and permanent residents, whom the innkeeper does select, seems to foreshadow Kant's contrast between the “right to visit,” which a receiving state cannot refuse, and the “right to be a guest,” which requires a “special beneficent pact.” Moreover, the innkeeper's inability to refuse travelers seems mirrored in a receiving state's obligation under cosmopolitan right to take in visitors who will be destroyed if turned away.
There is, of course, an obvious difference. Kant's obligation to receive arises only if turning the visitor away would result in her destruction; in all other cases, a state's cosmopolitan obligation is only to refrain from treating visitors with hostility. Except for this one case, states have full discretion to turn visitors away. The parallel to this is in the other title of the Digest on innkeepers—the “Action for Receipt” or receptum nautarum cauponum stabulariorum—where the same jurist Ulpian, in apparent contradiction to his commentary on the actio furti, comments that:
The praetor says: “I will give an action against seamen, innkeepers, and stablekeepers in respect of what they have received and undertaken to keep safe, unless they restore it.” This edict is of the greatest benefit, because it is necessary generally to trust these persons and deliver property into their custody. Let no one think that the obligation placed on them is too strict; for it is in their own discretion whether to receive anyone; and unless this provision were laid down, there would be given the means for conspiring with thieves against those whom they receive, since even now they do not refrain from mischief of this kind.Footnote 29 (emphasis added)
A. Innkeeping—A Short Legal History
This section provides a brief background and history of the law of innkeeping, from which certain themes emerge that will be relevant for subsequent theoretical discussion. These are, first, that innkeepers are fiduciaries of their guests; and second, that they are public officials. The actio furti is codified in the Institutes as one of the four quasi-delictual obligations; that is, obligations arising “as if” by delict.Footnote 30 It is not a delict proper, because whereas delictual liability always requires fault or intention, liability under the actio furti is strict. The actio de recepto is not categorized as a quasi-obligation, presumably because it requires an underlying contract of carriage, lodging, or stabling.Footnote 31 Nevertheless, an innkeeper's receptum liability also cannot be explained purely as a matter of contract or delict. In fact, the actio furti and the actio de recepto constitute vanishingly rare examples of strict or vicarious liability in Roman law.Footnote 32 If you transfer cloth to a tailor that then is destroyed or goes missing, you can sue in contract for failure to make the shirt, and in delict after proving fault. In contrast, innkeepers’ liability arises the instant the chattels are taken into custody, and cannot be avoided even by express refusal to take care of the goods.Footnote 33
As indicated by Ulpian's commentary to the actio de recepto, the peculiar historical reasons why innkeepers were treated so harshly had something to do with social snobbery. A Roman inn or caupona was little more than a brothel,Footnote 34 and its “reputation was so bad that it was regarded as degrading for a senator to lunch or dine in a caupona.”Footnote 35 Not surprisingly, people operating such businesses were so unsavory that their guests were seen as in need of particularly solicitous legal protection even (or perhaps especially) if they were accommodated for free. The rediscovery of the Roman law in the eleventh century transposed these idiosyncracies of Roman social life on an entirely different medieval context, a crucial aspect of which was the proliferation of intracontinental travel for pilgrimage following the end of the Black Death. From the early thirteenth century, English law required innkeepers to provide surety for the good behavior of foreign travelers, meaning that innkeepers had to be “good and sufficient persons”—a far cry from the Roman caupo.Footnote 36 In 1563, a French royal ordinance explicitly prohibited innkeepers from refusing travelers without cause, the purpose of which, according to David Bogen, was not so much aimed at ensuring accommodation for travelers, but at enforcing a public purpose of setting prices for meals at inns and taverns.Footnote 37 Nevertheless, the official duty evolved around the same time into privately enforceable legal obligation. In England, this was first recognized in White's Case, where the Court of Common Pleas recognized an “action on the case” or claim for loss against an innkeeper who turned a guest away despite having room.Footnote 38
It must be emphasized that the obligation to take all comers was a wholly modern development; the law that controlled in Rome was, as provided for in the actio de recepto, that innkeepers could refuse guests at will.Footnote 39 Although this was a matter of common knowledge, jurists nevertheless attempted to ground the modern practice on the old Roman jurists by denigrating Ulpian's remarks about the actio de recepto in favor of those concerning the actio furti. The strategies ranged from speculating that the actio de recepto was incorrectly transcribed during the compilation of the Digest to interpreting the discretion referred to in it as about entering the profession rather than about receiving individual travelers.Footnote 40 In any event, by Kant's time, it was trite that innkeepers and other common carriers exercised a uniquely public employment, such that they were not free to refuse guests who could afford a reasonable sum for their lodgings.Footnote 41
Notwithstanding innkeepers’ vastly improved social prestige, and their new onerous public duties, the ancient rule of the strict liability of innkeepers for damage or loss to guest property remained in place, and is in fact still good law to this day.Footnote 42 For a while, Ulpian's old “innkeeper-as-scumbag” theory proved remarkably resilient in justifying this situation, even though it had long ceased to be convincing as a description of the hotel business, let alone of other common carriers.Footnote 43 The shift to a different, fiduciary rationale is apparent from Sir William Jones's groundbreaking essay on the English law of bailment:
For travellers, who must be numerous in a rich and commercial country, are obliged to rely almost implicitly on the good faith of innholders, whose education and morals are usually none of the best, and who might have frequent opportunities of associating with ruffians and pilferers, while the injured guest could seldom or never obtain legal proof of such combinations, or even of their negligence, if no actual fraud had been committed by them.Footnote 44
In contrast to Ulpian, Jones emphasizes the systematic vulnerability of the traveler-innkeeper relation: from the fact that travelers have no choice but to “trust these persons and deliver property into their custody,” it follows that they are “obliged to rely almost implicitly on the good faith of innholders.” The impossibility of proving negligence, let alone intent, means that guests and their “property are exposed to dangers emanating from a sphere which only the other party is able to organize and control.”Footnote 45 The innkeeper is liable not because he is a scumbag, but because he is a fiduciary.Footnote 46 In 1921, a South African innkeeper invoked the cessante ratione cessat lex maxim to argue that the rule on the strict liability of innkeepers had become obsolete.Footnote 47 He lost.
Thus, the history of the law of innkeeping provides to some extent an illustration of what Kant calls “empirical” and “metaphysical” theories of law, as well as of his claim that empirical accounts are empty without a metaphysics.Footnote 48 As a matter of empirical or “blackletter” legal history, the innkeeper's liability arose out of the professional disrepute of innkeepers. “Metaphysically” however, the innkeeper's liability can and must be expressed rationally as a fiduciary obligation arising from the systematic vulnerability inherent in the very form of the guest-innkeeper relation.
III. PRIVATE LAW FOUNDATIONS OF KANT'S GENERAL THEORY OF LAW
This section is intended to provide a synopsis of pertinent themes from Kant's theory of law. Readers already familiar with them may skip to the next section.
A. The Innate Right to Freedom and Its Expressions
In the Introduction to the Doctrine of Right, Kant defines rights in relational terms as “(moral) capacities to put others under obligations.”Footnote 49 Moreover, legal rights are “always connected with an authorization to use coercion.”Footnote 50 That is to say, for a claim of right to be legal rather than ethical, it means that it is morally permissible to employ coercion against the addressee should she refuse it. Thereafter, the “highest division” of rights is between “innate” and “acquired” rights: an “innate right is that which belongs to everyone by nature, independently of any act that would establish a right,” while “an acquired right is that for which such an act is required.”Footnote 51 Thus defined, there is only one innate right, or dignity inhering purely by virtue of being human: “independence from being constrained by another's choice …”Footnote 52
Kant's valuable insight here is that dignity does not consist in being supplied with things necessary for the satisfaction of interests or needs. A slave lacks dignity even if her master is extravagantly solicitous of her welfare because, formally, she remains an object at her master's mercy. As per another fundamental distinction, a person is “a subject whose actions can be imputed to him,” while a thing is an “object of free choice” to which “nothing can be imputed.”Footnote 53 Being treated “rightly” as a person—that is, in accordance with one's nature as a person—means being recognized as subject to no laws other than those you give yourself, rather than as a thing at the disposal of others. For the same reason, neither can dignity consist in freedom understood in liberal terms as the ability to do whatever one wants to do without constraint, for this would just be a roundabout way of describing interest-satisfaction. The well-kept slave would lack dignity even if the kindly master told her she could do anything she liked and went on permanent holiday, for in formal terms she is no different than a dog let off its leash. If someone should assault her, she would have no means of lodging a complaint in her name, but would instead have to rely on her strength or hope for free persons such as her master or kindly passersby to intercede on her behalf.
This idea of an innate right to freedom can be expressed in a number of different ways. One such expression is the concept of “rightful honor,”Footnote 54 which Kant reformulates the first of Ulpian's three precepts of law—honeste vivere—as a command to be a juridical person: “Do not make yourself a mere means for others but be at the same time an end for them.”Footnote 55 Rightful honor does not mean that you cannot pursue shameful purposes, but only that you may not coherently do anything that effectively surrenders your ability to set purposes. For instance, you cannot contract to enslave yourself, not because it would be disgraceful, but because it would be juridically nonsensical. Such a contract envisages you assuming an obligation to become a thing, which, by definition cannot have obligations. Any attempt to perform on it would therefore automatically release you from it.Footnote 56 Another expression of innate right is something Kant calls the quality of being “beyond reproach.”Footnote 57 If another accuses you of wrong, they must prove it, not you. You can never be required to clear your own name. This basic case gives rise to one exceptional case: if someone wrongs you by spreading defamatory rumors about you, you do not need to prove the falsity of the rumor. Rather, the defendant has the burden of proving that her allegation is true. If the burdens were otherwise, you would potentially have to spend your entire life putting out any small fires others might see fit to start, thus rendering yourself a thing at the disposal of all others. A third way of expressing the innate right to freedom is as the “original common possession of the earth,” and Kant grounds cosmopolitan rights to visit on this particular expression. We return to this in Section IV.
B. Acquired Right, or Private Right
The innate right to freedom gives rise to three kinds of “acquired” rights: “a right to a thing (ius reale), or a right against a person (ius personale), or a right to a person akin to a right to a thing (ius realiter personale), that is, possession (though not use) of another person as a thing.”Footnote 58 This crucial passage can be explained as follows: a thing can potentially be both used and possessed at the same time.Footnote 59 Your dignity lies in being treated as a person and not as a thing; that is, as mere means. As such, this does not mean that you cannot be possessed or used as means, but only that you cannot be possessed and used at the same time. From this arise three possible combinations of rights and obligations legitimately enforceable through coercion:
(1) Rights to things: These entitle one person to prevent all other persons from interfering with the things she is rightfully controlling in pursuit of her purposes—her property and body.Footnote 60
(2) Rights against persons: These entitle one person to use another person. For instance, your employer gets to use you in pursuit of her purposes. If she uses you, however, she cannot also possess you. You must have signed up for the job, and you can always quit. These rights are to performances; to delivery, not title.Footnote 61
(3) Rights to persons akin to rights to things: These entitle one person to possess another. If you are a child, your mother can tell you to eat your vegetables, and you must do it. If your attorney accepts a settlement offer, you did it. They “bind” you by their decisions. However, if they possess you in this manner, they cannot also use you. Whatever decisions they make in respect of you have to be consistent with your purposes, never theirs. It works the other way as well: because they possess you, you can use them. Their “status” in relation to you is an “external object of choice” in your possession, just like a contractual performance owed to you, or a thing in your rightful control.Footnote 62 For the sake of convenience, these are scripted as fiduciary relations.Footnote 63
These basic categories reflect those of delict, contract, and quasi-obligation in the Roman law of obligations.
C. Public Right
Like the social contract theorists, Kant argues that none of the above relations of private right are secure in a condition of pure private interaction, or “state of nature.” However, Kant takes the much more radical position that rights are not just inconvenient or inconclusive in the state of nature, but impossible. Crucially, Kant inverts the order of Grotian and Lockean natural rights theories, which in various ways justify the existence of the state as being for the protection and more efficient enjoyment of full-fledged property rights already existing in the state of nature. Instead, Kant claims that the lawful condition precedes conclusive property rights.Footnote 64 There is no property without law: a peremptory right to use and possess an external thing to the exclusion of all others requires nothing less than the individual consent of everyone in the political community. However, since the (metaphysical, not empirical) process of obtaining such consent would place you at the mercy of everybody, we must instead postulate a political institution capable of expressing the individual consent of all the members of the political community in the form of a single, “omnilateral” will. The particular institution manifesting this omnilateral will is the representative legislature.Footnote 65 In other words, the state is not so much “founded” on property rights. Instead, it founds those rights.
The inversions do not stop there: Kant's contract is not “formed” by parties in the state of nature. Instead, it forms those parties. This notion may be explained by contrasting Kant with familiar liberal tenets. On a liberal conception of “negative freedom” or freedom as noninterference, the commands of political authorities are always necessarily restrictions on freedom, even if they ultimately increase the scope of action or the range of interests satisfied.Footnote 66 If, however, freedom is understood as being assured that no other person will dominate or instrumentalize you, then it becomes more obvious that it cannot exist without a set of political institutions authorized to posit your rights in law and enforce them coercively.Footnote 67 Authority is not just compatible with freedom, but necessary for it.Footnote 68 This is why Kant “prefers to speak of an original contract rather than a social contract.”Footnote 69 It represents—again conceptually, not empiricallyFootnote 70—the choice that makes choosing even possible.
This has two implications. First, in contrast with ordinary private contracts where it is entirely up to the parties whether or not to cooperate, the idea of the original contract envisages forms of cooperation that are mandatory. This is not because the welfare benefits of being in the civil condition are so great that we can presume that you have consented to cooperate. Rather, it is because being in the civil condition is a prerequisite for your even having the capacity to choose. You become free by submitting to authority. If you decline to consent to the original contract, you are choosing to be unfree, which is juridical nonsense, because choosing is only for the free. Rightful honor therefore compels you to choose to join the rightful condition. Alternatively, persons remaining outside the original contract are essentially reserving for themselves the choice to use violence against all others as and when they please. Others need not abide this. Indeed they must not, for they would violate their dignity if they did.Footnote 71 Nor would they wrong you by using violence against you. Outside the original contract you are unfree, and so can be forced—forced to be free.
Second, the state is an extension in public right of the idea of a fiduciary in private right.Footnote 72 Because it claims authority over you—that is, the entitlement to determine your legal rights and obligations—the state's powers in respect of you are compatible with dignity only if exercised in a fiduciary capacity.Footnote 73 We saw earlier that Kant describes the republic as the common mother. Kant utilizes precisely the example of parenthood to illustrate the category of rights to persons akin to rights to things. In an argument modeled on negotiorum gestio, Kant argues that parents are obligated to care for their child because they decided to bring it into the world without first obtaining its consent. This obligation of care, however, gives rise to rights against the child: “they also have a right to constrain it to carry out and comply with any of their directions that are not contrary to a possible lawful freedom …”Footnote 74 The same rationales of the beneficiary's incapacity to consent, and the fiduciary's obligation of good faith apply in state-subject relations.Footnote 75 Most human beings no more choose their political communities than they select their parents. Moreover, just as a beneficiary requires the intercession of her trustee to enjoy her trust property, neither can an individual enjoy her innate right to freedom without the state.
At this point, another stark difference arises between Kant and other social contractarians, in that the latter tend to conceive of the state as an aggregation of natural persons to celebrate their common sympathies, protect their property rights,Footnote 76 or serve as a clearinghouse mediating between them with respect to their basic needs.Footnote 77 In contrast, Kant pictures the state as a moral person in its own right, with purposes separate and distinct from those of its subjects. This, for instance, is the basis for Kant's remark that extracting reparations from the population of a defeated enemy “would be robbery, since it was not the conquered people who waged the war; rather, the state under whose rule they lived waged the war through the people… .”Footnote 78 The separate personalities of sovereign and subject is in fact baked into the fiduciary model of authority. States have to be more than just aggregations of subjects because it would otherwise become impossible to judge and criticize the former's treatment of the latter. Any subjects disagreeing with the directives of the state would effectively be contradicting themselves. This is why, in Peter Birks's excellent phrase, fiduciary obligations of competence and disinterestedness are “inseverably compound”;Footnote 79 they contemplate one person taking “positive steps in the interest of another.”Footnote 80
The distinctness of the state's personality and purposes from those of its subjects is illustrated by Ronald Dworkin's metaphor of an orchestra. An orchestra is more than just an aggregation of individual musicians playing particular notes on particular instruments at particular times.Footnote 81 Moreover, its members “do not suppose that the orchestra also has a sex life, in some way composed of the sexual activities of its members, or that it has headaches, or high blood pressure, or responsibilities of friendship, or crises over whether it should care less about music and take up photography instead.”Footnote 82 Instead, the orchestra has just one purpose: making music. Accordingly, the difference between private fiduciaries and sovereigns is that the set of purposes that the latter can act on is much narrower. Private persons can set and pursue private purposes, such as the celebration of religious rituals. States can do no such thing because as public fiduciaries, they have just one public purpose: guaranteeing the equal freedom of the people.Footnote 83 As persons, states also have a natural right to freedom that is unachievable in an international state of nature. Equally, law is not just compatible with the freedom of states, but necessary for it. They too must enter into an international rightful condition.
The distinction between public and private persons gives rise to a second trichotomy of legal categories: that of constitutional, international, and cosmopolitan right.Footnote 84 Unlike the first trichotomy of private right, which represents the possible combinations of possession and use between persons and things, the second trichotomy represents the possible combinations of interactions between public and private persons. Constitutional right covers legal relations (1) between a state and its subjects, and (2) between subjects of the same state. As for international right, Kant departs from both his contemporaries and ours to define it as covering only relations between states. Finally, cosmopolitan right covers legal relations (1) between sovereigns and nonsubjects, and (2) between subjects of different sovereigns. These three taken together form the sum total of public right: if any one of these categories is missing, “the framework of all the others is unavoidably undermined and must finally collapse.”Footnote 85 Underneath the edifice of public right, however, lie the three basic forms of private right. Because delict, contract, and fiduciary relations represent the three possible ways in which coercion may be used consistently with freedom from domination, their structures are not limited to private law but animate all claims of right, including constitutional law, international law, and cosmopolitan law.Footnote 86
IV. EXPLICATING COSMOPOLITAN RIGHT
We are now in a position to explore the content of cosmopolitan right and the meaning of hospitality. The scholarly literature divides into two camps. One argues that cosmopolitan right may be explained solely in terms of the innate right to freedom. While not exactly claiming cosmopolitan right to be an acquired right per se, the other camp envisages it nevertheless as a sort of “proto-property” right. This paper agrees with the first camp: cosmopolitan right has nothing to do with property, proto- or otherwise. An innkeeper's obligation of hospitality results not from her ownership of real estate, but from her status as a public fiduciary. The same applies to states. Demonstrating this requires an examination of the concept of the “original common possession of the earth.”
A. Common Possession of the Earth's Surface: The Innate Right to Take Up Space
Recall that the refugee is merely an exceptional case for cosmopolitan right. The basic case is that of a visitor who has a state to return to. Recall also that the visitor cannot claim the right to be a guest, because that requires a special pact. All she has is the right to “to present oneself for society.”Footnote 87 The receiving state can reject her outright; the only thing it cannot do is “punish” the visitor simply for appearing at the border. This right, according to the Perpetual Peace, “belongs to all human beings by virtue of the right of possession in common of the earth's surface on which, as a sphere, they cannot disperse infinitely but must put up with one another; but originally no one had more right than another to be on a place on the earth.”Footnote 88 The Doctrine of Right expands on this idea in a passage that bears repeating in full:
[S]ince possession of the land, on which an inhabitant of the earth can live, can be thought only as possession of a part of a determinate whole, and so as possession of that to which each of them originally has a right, it follows that all nations stand originally in a community of land, though not of rightful community of possession (communio) and so of use of it, or of property in it; instead, they stand in a community of possible physical interaction (commercium), that is, in a thoroughgoing relation of each to all the others of offering to engage in commerce with any other, and each has a right to make this attempt without the other being authorized to behave toward it as an enemy because it has made this attempt.Footnote 89
Cosmopolitan right is “grounded” on original common possession of the earth in this way. What, however, does “grounding” mean? We may illustrate this as follows. Recall that the simplest category of private right is delict, which essentially envisages two free persons interacting as strangers in an arm's-length relation to one another. This rightful relation is disturbed when one party wrongfully interferes with the other's means, in which case an award of damages must be given to restore the original estrangement.Footnote 90 The “interference” does not have to be dramatic or painful: a stranger who merely runs their fingers through your hair is liable to you in battery. Though substantively harmless, she nevertheless commits a civil wrong against you simply because she has formally treated you as a plaything at her disposal, thereby contradicting your innate right manifested as rightful honor. However, that same stranger does you no wrong if she taps you on the shoulder, say, to ask you for directions, or to offer you something for sale. This is because her “use” of your body is for communicating with you, and this is a purpose you simply must share. To deny this would be to presume that anything she might possibly say to you is wrongful, thus literally turning her into an untouchable. This contradicts her innate right, this time expressed as the right to be beyond reproach. Innate right “grounds” acquired rights in this way: it is not itself a legal claim, but it informs and structures legal claims in delict, contract, or unjust enrichment.
The arm's-length relation between the visitor and the receiving state envisaged under cosmopolitan right is similarly structured by deeper, more fundamental entitlements. These are, namely, the visitor's right to make an offer to contract, which the receiving state is entirely free within its innate right to reject.Footnote 91 As the passage from the Doctrine of Right indicates, the right of the visitor not to be treated as an enemy seems to be grounded partly in his innate right of “communicating his thoughts.”Footnote 92 However, the passage also focuses closely on the fact that as embodied agents, visitors necessarily occupy space on a planet where space is limited. This gives rise to a right that is innate: it “precedes any acts … that would constitute rights.”Footnote 93
This is explained as follows. The first and crucial point is that your body is not a thing you possess and use to exercise your agency. Instead, your body is your person. Someone who commits a battery against you does not merely wrongfully interfere with your purposes—say, in playing sports. They wrongfully interfere with you. The fact that persons are innately embodied means that they are entitled to take up the particular spot where they happen to be at any particular moment, which by definition cannot be taken up by anyone else.Footnote 94 Seen this way, your “possession” of the ground under your feet is “disjunctive”—it entitles you “neither to authorize anything nor to bind anyone.”Footnote 95 All it entitles you to is to remain there for so long as it takes you to remove to some other location. This is reflected in Kant's formulation of the visitor's right as against being treated with hostility so long as he behaves peaceably “where he is.”Footnote 96 In the section of the Doctrine of Right specifically dealing with the original acquisition of land, Kant describes it as the right of persons “to be wherever nature or chance (apart from their will) has placed them.”Footnote 97
These elemental considerations reveal why cosmopolitan right plays a central role in Kant's general theory of law, even though he devotes less than two pages to it. Nevertheless, his anti-colonialism makes him contemplate even this minimal right with distaste. He observes that visits were often accompanied by attempts to establish colonies connected with the mother country, which then provided “the occasion for troubles and acts of violence in one place on our globe to be felt all over it.”Footnote 98 Nevertheless, this is as far as he will go: “this possible abuse cannot annul the right of citizens of the world to try to establish community with all and, to this end, to visit all regions of the earth.”Footnote 99
Up to this point, there is no conceptual difference between the visitor's right to approach the receiving state and her right to approach a private person. The state, like a Roman caupo, has the full discretion whether or not to receive a visitor/guest. This changes once the receiving state figuratively brings the visitor infra hospitium by accepting the visitor's offer to engage in commerce.Footnote 100 It now wields authority over the visitor, who must obey the laws of the land. As a result, its relationship with the visitor is transformed from delictual or contractual to fiduciary. Not only must the receiving state not itself interfere with the person and property of foreigners through its officials, it must also ensure that the Hausgenosse refrain from the same, and punish them if they do not. The “due diligence” obligations owed by states to other states with respect to the treatment of aliens in their territory can be accounted for in this way. Each state bears a “negative obligation to abstain from directly taking measures (through actions of its own organs) aimed at attacking the security of aliens,” as well as a “positive obligation to protect aliens from harmful activities carried out by third persons (private individuals or the organs of other international entities) on its territory,” which entails “both an obligation to prevent harmful activities and an obligation, if such activities have occurred, to punish the persons responsible for the wrong suffered by the alien.”Footnote 101
The fiduciary relationship between the receiving state and visitor arises much more quickly—in fact instantly—in the case of a refugee who has nowhere to return to. In such cases, the receiving state's obligation toward the stateless person mirrors its obligations corresponding to its citizens’ socioeconomic rights—for instance to adequate housing and food—which are grounded not in interests or needs, but in the state's sole purpose of ensuring the equal freedom of all subjects.Footnote 102 A homeless person may not sleep on the streets without making a public nuisance of herself. Nor may she sleep on the property of another without committing the wrong of trespass. As such, she is systematically dependent on the kindness of strangers for her occupation of space. If this is not forthcoming, she does wrong simply by standing in one place. Nobody could consent to such conditions consistently with rightful honor, which means that the provision of adequate affordable housing must be a clause of the mandatory contract creating the constitutional order.Footnote 103
In the same way, a refugee fleeing a war has no rightful condition back home, nor can she settle on the high seas, for these must be kept free to all for travel. Because it would otherwise be inconsistent with innate right, the refugee's offer cannot be understood other than as one seeking to join a rightful condition, which in turn means that it must be met with acceptance. What Kant intends by Untergang is not physical destruction per se, but civil death.Footnote 104 Authority is necessary for freedom, and human beings left without it are destroyed as persons. A receiving state's cosmopolitan obligation, therefore, is not to offer “world citizenship, but [to ensure] the division of the world into states in a way that guarantees that each person has a home state to return to.”Footnote 105 This means that if you have no home state, the officials of the receiving state “have to let you stay, simply in your capacity as a citizen of the world.”Footnote 106 The receiving state's discretion “runs up against its own internal limit.”Footnote 107 The refugee must be taken in, thus birthing her into the civil life that is hers by innate right.
To illustrate, consider Watson v. Cross, an American authority commonly cited for the rule that innkeepers cannot refuse minors.Footnote 108 In that case, the Kentucky Court of Appeals rejected an attempt by a minor—“infant” in what was then Kentucky judicial parlance—to evade two weeks of hotel charges by arguing that his contract for lodging was invalid for lack of capacity. The court ruled instead that the innkeeper held a valid lien over the plaintiff's goods because he was under an obligation “to receive and entertain all guests apparently responsible and of good conduct, who might come to his house … and the mere fact of infancy alone in the applicant would not justify him in any such refusal.”Footnote 109 As such, simply in virtue of their status as public officials, innkeepers are obligated to enter into obligations with human beings who normally cannot have obligations. The same applies for the public person of the state.
Thus, innate right is really all one needs to elaborate cosmopolitan right on either side of the interaction, both in the ordinary case of visitors with a rightful condition to go back to, and in the exceptional case of refugees with nowhere to go.
B. Rights to an Equal Share of the Earth, Historical Redress, or to Be Somewhere
The opposing view is that accounting for cosmopolitan rights and obligations requires knowledge of further and better “facts about the world.”Footnote 110 These may concern questions of resource distribution, historical injustice, or even just geographical specification.
One version of this argument from equal distribution is provided by Peter Niesen, who, in earlier work, argued for the “derivation of cosmopolitan law from acquired rights to property”Footnote 111 on a view of original common possession as implying some form of equitable distribution of resources. From the premise that “unilateral acquisition obligates individuals and nations towards each other,”Footnote 112 Niesen observes that the carving up of the world into separate plots and territories “has causally shaped the life chances of our fellow cosmopolitan residents,”Footnote 113 such that appropriations of territory—even if blameless and not a result of colonial crimes—result “in a distribution of property that can be challenged and will have to be either ratified or corrected in a cosmopolitan condition.”Footnote 114 Similarly, Claudio Corradetti views the cosmopolitan right to visit “as a limitatory clause to peremptory appropriation, that is, as a generalised guarantee of non-exclusion from territorial accessibility.”Footnote 115 Corradetti opines that “from the acceptability of an original appropriation … it follows that those who are excluded by territorial seizure must be compensated through the allocation of a qualified right—the right to visit—in order to respect their original right to have a place on earth.”Footnote 116 In explaining this compensatory principle, Corradetti refers to the Lockean proviso, according to which enclosures of land in the state of nature are conclusive as long as they ensure “enough, and as good, left in common for others.”Footnote 117 In contrast, Alice Pinheiro Walla ropes in Grotius, who—as we saw from his reliance on the Aeneid—considers property rights to be defeasible in cases of necessity. From the premise that property is created out of common possession for the greater welfare of human beings, it follows that property rights become defeasible when (1) the thing can be enjoyed by others without any cost to the owner,Footnote 118 or (2) excluding others would result in secular disaster. On these lines, Pinheiro Walla argues that “cosmopolitan right in Kant's theory has a similar function to the right of necessity in Grotius and imperfect rights in Pufendorf's theory.”Footnote 119
One immediate issue is that these arguments smuggle internal considerations about the substance of choices into Kant's purely formal theory of law. For instance, Niesen considers the protections afforded to voluntary travelers as justified in part on the ethical obligation of peoples not to seclude themselves.Footnote 120 Corradetti for his part tries to avoid such consequentialism by specifying that his reliance on the Lockean proviso “reformulates” it to pay no heed to questions of need.Footnote 121 However, it is difficult to see how this changes anything because leaving behind enough and as good is neither good nor enough to justify excluding others. For Kant, land before original acquisition is not res nullius:Footnote 122 others have just as good a claim to it, which cannot be extinguished by unilateral occupation or specification. If you try to exclude others from a plot of land on the basis that you have labored on it and grown enough apples to feed them, they may justifiably reply that they care not for apples, and—even if they did—that it was not your place to decide that they will have apples. Nor, from the opposite end, does Kant accept a right of necessity. Necessity enters Kant's general theory not as a justification but as a defense, and even then only against criminal rather than civil liability.Footnote 123
The most interesting problem for present purposes, however, lies in the common assumption that territory is akin to property,Footnote 124 which is itself premised on a deeper assumption that “states and peoples … take an active part in the process of unilateral appropriation” of their territory.Footnote 125 To wit, it is an obvious empirical fact that political communities discovered, conquered, or stole the land they now have. Metaphysically, however, states do no such thing: they come into existence at the same time as their territory. Territory is not acquired, but innate in the manner of body.
Recall that innateness means being able to say that something is yours independently of any act you did to get it, while acquiredness implies some such act. Your sunglasses are acquired: if someone else had bought them from the shop before you, they could very easily have been hers, not yours. Thus, property has the aspect of being “mine or yours”;Footnote 126 it is by default transmissible because “what is yours might as well be, and might come to be, not only mine, but his, hers, theirs, and so on.”Footnote 127 Bodies, among other things, are not like this. You do not have to account for how you came to possess it, because if you did not have your present body, there would not have been a you to acquire it. Alternatively, consider that if you and a friend were to exchange all your belongings, your lifestyles would be transformed—perhaps immeasurably—but the two of you could still carry on with the identities you ordinarily present to the world. Not so if you exchanged bodies. Bodies are not “mine or yours,” nor are they transmissible. Instead, they are by default inalienable.
All these are also true of territory. Acquiring territory is not something a state can do, because before it has any territory, there is no state to do any acquiring. A state's land holdings may increase through silting or volcanic activity, but this is analogous to you growing a beard or having a heart transplant. Taken as a “totality”—a plurality considered as a unity—the state simply is the territory.Footnote 128 Ruritania and Cagliostro would not simply be altered if they exchanged their territory, natural endowments, and people. They would cease to exist. This is precisely Kant's point in the Second Preliminary Article, which observes that
a state is not (like the land on which it resides) a belonging (patrimonium) … Like a trunk, it has its own roots; and to annex it to another state as a graft is to do away with its existence as a moral person and to make a moral person into a thing, and so to contradict the idea of the original contract, apart from which no right over a people can be thought.Footnote 129
The distinction Kant seems to draw between the state and its land must not be taken to mean that the territory might be patrimony, even if the state itself is not. While Kant states that title to territory is held by the head of state acting as the “Supreme Proprietor,” he defines that function solely as organizing the “division” of land among subjects, and emphatically not as an aggregation of private ownership claims.Footnote 130 The latter would be inimical to eternal peace, because, as Kant knew from experience, the patrimonial state generates incessant war. Writing in the wake of the Austrian Wars of Succession and the Seven Years’ War—two world wars sparked off by a woman ascending to the Habsburg Throne in violation of ancient Frankish tribal traditions—Kant remarks that
Everyone knows into what danger the presumption that acquisition can take place in this way has brought Europe, the only part of the world in which it is known … that states can marry each other, partly as a new industry for making oneself predominant by family alliances even without expending one's forces, and partly as a way of extending one's possession of land.Footnote 131
Accordingly, the Second Preliminary Article requires that “No independently existing state (whether small or large) shall be acquired by another state through inheritance, exchange, purchase or donation.” Contrary to Derrida, neither the state nor its head can be treated as a master in his own home, for “if the head of state is not a member of the state but is proprietor … he can decide upon war, as upon a kind of pleasure party …”Footnote 132 To treat their territory as property to be bought and sold is to render the human beings on it into things to be bought and sold; in effect, civil death.
In more recent work, Niesen attempts to reconcile notions of territorial redistribution with the inalienability of territory in the rightful international order by means of positing a two-step transition process from a “private” to a “public” international state of nature.Footnote 133 In the private international state of nature, the land of the political community is simply held as the provisional property of the prince. The adoption of the Second and other Preliminary Articles then transforms this land into inalienable territory, but rights in it remain provisional since we are still in a state of nature, albeit now a public one. Only after the adoption of the Definitive Articles is the land confirmed as the peremptory territory of the state in an international rightful condition. In the interim between the two states of nature, Niesen contends that territorial re-assignations should occur in order to reverse territorial transfers contrary to the Second Preliminary Article. In support of this argument, Niesen cites to certain comments about restoring land in the Perpetual Peace, and to the statement in §61 of the Doctrine of Right that the external things states “acquire or retain by war” remain provisional outside the international rightful condition.Footnote 134 On this basis, he argues that cosmopolitan right incorporates not just considerations of fair resource distribution, but also the reversal of historical wrongs.
As an ethical matter, the attraction of Niesen's argument is obvious: the fact that a foreigner comes from a country that was previously dominated or is currently being exploited by the receiving state must weigh significantly in the use of administrative and legislative discretion as to whether to issue her a visa, or perhaps to extend her voting rights and citizenship. As a legal matter, however, these factors seem irrelevant: it is hard to see how a refugee's right to be taken in could be less weighty if she came from a country not previously oppressed by that state. Of course, the refugee's claim may appear “more” weighty if she did come from such a country, but what more weight would you need? Besides, the comment about restoring land features in the course of a discussion of the spurious excuses a monarch might offer to put off the adoption of the Preliminary Articles indefinitely.Footnote 135 However, incorporating the reversal of historical wrongs into the concept of cosmopolitan right—a Definitive Article—would have precisely this effect. Every encounter with a foreigner would involve the re-litigation of historical grievances, an endless reopening of ancient wounds making peace forever unachievable.
Secondly, provisionality goes to the stability or security of a right while alienability pertains to its content: a right can be inalienable yet precarious. Kant envisions the land of “savages”—arguably the prime exemplars of a private international state of nature—in precisely this way. He specifically denies the application of the Lockean proviso to indigenous peoples in his statement that while colonies may be established on land truly far away from them, they are not allowed if the “people are like shepherds or hunters … who depend for their sustenance on great open regions …”Footnote 136 The reason, it is submitted, is because even though such peoples do wrong in the highest degree by remaining outside a rightful condition, others are in no position to hold this against them. As Ripstein puts it, “whatever uncertainty there is with respect to who may act on behalf of this people, the visitor must accept that the visitor itself is not so charged, and so must not take it upon itself to make arrangements for the inhabitants.”Footnote 137 A people's land is not to be treated as contingent transferrable property just because they lack a republican constitution.
Interestingly, Kant goes on to say that a settlement may be established with uncivilized peoples by contract, but specifies that such a contract must “not take advantage of the ignorance of those inhabitants with respect to ceding their lands.”Footnote 138 As we have seen, Kant envisages a spectrum of contracts ranging from mandatory to prohibited. Ordinarily, however, contracts are by default voluntary, and their validity does not depend on the reasons why they were entered into. It may be idiotic to sell your Maserati for a peppercorn, but you have the right to make such an offer, and the obligation to deliver if someone accepts. A settlement contract with native peoples is evidently not an ordinary contract for buying and selling property. Instead, its onerous requirement of informed consent is reminiscent of the curious passages in the Doctrine of Right concerning sexual intercourse. In these, Kant begins by observing that because a “human being cannot have property in himself, much less in another person,” it follows that intercourse for mere carnal enjoyment constitutes “cannibalistic … use by each of the sexual organs of another …”Footnote 139 Such use of another's body makes each participant “a consumable thing (res fungibilis) with respect to the other, so that if one were to make oneself such a thing by contract, the contract would be contrary to law.”Footnote 140 While the legal systems the reader may be familiar with hopefully do not follow this rationale fully, it nevertheless informs laws concerning sex work and other bodily alienations such as organ transplantation and euthanasia. These are often prohibited, or if allowed, not on commercial terms. If they are permitted commercially, efforts are made to ensure that such activity is the result of genuine and informed choice rather than vulnerability and exploitation. Kant applies the same logic to the territory of a people—civilized or savage—because it is akin to the body of their state.
Again, Kant's ideas find illustration in the evolution of the international law of territory. While early case law allowed for “acquisitive prescription” of territory through effectivités (effective administration) by explicit analogy to the prescription of land in municipal law,Footnote 141 current practice is the polar opposite, allowing transfers of territorial sovereignty only with the positive acquiescence of the transferor.Footnote 142 The rationale behind the new rule is peace: no matter how poorly drawn by former colonial powers, existing borders must be respected in order “to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers… .”Footnote 143 For similar reasons, the World Court has twice rejected “Lockean proviso”-style arguments for borders to be adjusted in order to effect more equitable distributions of natural resources.Footnote 144 Finally, ample evidence of the civil destruction of human beings is provided by past and present practices of acquiring or holding territories by purchase, grants in perpetuity, lease, international mandate, and condominia.Footnote 145 New Hebrideans used to joke that the former system of British-French joint rule of their islands was not so much a condominium but pandemonium,Footnote 146 while the leased territories that still exist today—think of Guantánamo Bay and Diego Garcia—are primarily known for lawlessness, torture, and mass dispossession.
According to a recent study by Madeline Gleeson, it would appear that much the same can be said about “offshore” Refugee Processing Centres (RPCs) set up in Nauru and Papua New Guinea under the current Australian government's asylum policy. Gleeson's account paints a picture of these places as carefully constructed states of nature: administrative procedures are deliberately designed to ensure that “it would never be entirely clear who was really making the decisions,”Footnote 147 which is obviously ideal for deflecting scrutiny into conditions in the camps, or for denying responsibility for the harrowing stories of abuse and self-mutilation.Footnote 148 At various points, Gleeson describes the countries hosting the RPCs using asylum seekers as bartering chips in exchange for developmental aid.Footnote 149 Finally, there is the suggestion of the corruption of the body politic: she quotes a statement by the Greens Senator Christine Milne to the effect that competing to be more unattractive than the circumstances from which refugees are running from only ends with the national political discourse “becoming crueller and crueller and crueller …”Footnote 150 However, if a refugee's right was primarily about having a fungible share of the earth's land—a “right to be somewhere”—what exactly would be the principled objection against offshore RPCs? After all, if cosmopolitan right was a matter of compensating for inequities in land shares arising from original appropriation or for meeting the demands of necessity, what would it matter if the land offered was located here, there, or in Nauru?
In a recent piece, Jakob Huber purports to identify a difficulty with the argument from pure innate right advocated here, on the grounds that if original common possession is a “right to be granted a place somewhere on the earth such that the conditions of agency are fulfilled,” it simply cannot be an innate right.Footnote 151 Rather, it would have to be an acquired right displaying the “mine and yours” quality, because “somewhere” could be here or there. From the other direction, Niesen argues that the right against being treated with hostility cannot be accounted for purely as a matter of innate right, because in most claims of cosmopolitan right, “making contact is typically based on choice.”Footnote 152 Traders, tourists, and traveling dance troupes could very well have gone there rather than come here.
The first response to these claims is that the “right to be somewhere” is not how Kant puts it. Instead, he speaks of a visitor's right to be “where he is,” or where nature or chance, apart from his will, has placed him. This is not a right to some spot on earth, but to the spot where you are right now, which is just where you cannot help but be. Considered in this way, the ground beneath your feet becomes as inseparable from you as your shadow. This elemental fact structures the forms of coercive interactions you can have with other persons. This brings us to Niesen's argument about the rights of voluntary visitors requiring more than innate right. Imagine that somebody invites you to a party at her country house, and you freely choose to accept. On the day, you arrive at the gate and the footman ushers you in. However, just as you are hanging up your coat, your host changes her mind and orders you out of her house. This is most unwelcoming but, as we saw earlier, wholly within her right, such that you wrong her in trespass if you stay. Nevertheless, you still have a bare license to remain on the property for so long as it takes you to pick yourself up, take your coat, walk through the portico, down the driveway, and so on, simply because as an embodied being, you cannot instantaneously teleport yourself away.
This point is somewhat occluded in English law, where trespasses are often described as violations of property rights actionable per se—that is, the instant you set foot on another's land even if you do so under an innocent mistake.Footnote 153 Nevertheless, liability is not strict: trespass does not lie if you were involuntarily dropped onto the plaintiff's land by another,Footnote 154 or if you traversed it because the public roads were flooded.Footnote 155 You may not be held liable for simply being there. This principle is exhibited more clearly in the Roman law, where trespasses are considered objectionable as invasions of privacy; that is, as outrages of rights in personality. You do not wrong another simply by wandering into their land. If they tell you to leave, you must do so within reasonable delay. You wrong them only if you stick around beyond this, because this expresses contempt for their dignitas as the owner of their land.Footnote 156
In this way, a voluntary visitor may not be treated with hostility simply because she is there.Footnote 157 She is entitled to this because her person exists in space. In essence, hers is not a claim in vindicatio to a thing (a place), but in condictio to a standard of treatment (to be allowed to remain in her place until she can remove herself). That standard is hospitality, and the obligation it connotes is personal. States may not contract away their obligations to others,Footnote 158 because their status as public fiduciaries is as much part of their person as their body or reputation.Footnote 159 An innkeeper cannot refuse a traveler even if there are other “separate and equal” establishments nearby. Likewise, a receiving state may not outsource its obligations of asylum any more than it may prostitute its territory or sell its people. The reason why one state may not offshore its asylum obligations is the same reason why another may not onshore them.
CONCLUSION
Explaining cosmopolitan right by analogy to the private law of innkeeping helps clear up some mysteries. First, when Kant says cosmopolitan right has nothing to do with philanthropy, he means it. Second, Kantian hospitality entails onerous public, fiduciary obligations that no private person can or should ever bear. Third, the cosmopolitan obligations of receiving states have nothing to do with acquisition or ownership of property, but obtain solely in virtue of their public role and the form of relationship vis-à-vis any particular visitor. Where the visitor is peaceable, capable of supporting herself, and able to return to her own political community, all that she has a right to is to present herself for society. Where the visitor does not have a political community, such that turning her away would bring about her civil death, the receiving state must let her stay simply so she can rightfully occupy the spot on earth where she cannot help but be.
