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 by Brian Milstein Submitted originally as a final paper for the course "International Justice," Spring 2002, at the Graduate Faculty of the New School for Social Research, Sankar Muthu, Instructor Cite as: Milstein, Brian. "Beyond the King's Right: An Exegesis on World Political Ontology." Unpublished paper, New School for Social Research, New York (accessed on [DATE] at http://magictheatre.panopticweb.com/aesthetics/writings/kingsright.html). On the 6th of May, 2002, the Bush Administration officially renounced any obligation or will on the part of the United States to cooperate with the newly established International Criminal Court in the Hague. The I.C.C., charged by the 1998 Rome Statutes with the trial of government officials suspected of war crimes or "crimes against humanity," represents a new kind of international institution and implies a changing understanding of the international order. Its novelty is reflected in Marc Grossman's summary of the American position, as reported in the New York Times: "We believe those who commit the most serious crimes of concern to the international community should be punished...[However,] we believe that states, not international institutions are primarily responsible for ensuring justice in the international system" (qtd. in Lewis 2002, my emphasis). For nearly four hundred years the international system was understood to function as a kind of "ordered anarchy," as a collective of autonomous agents existing with something akin to what Enlightenment political thinkers called "the state of nature," following and progressing according to the self-governing logics of self-help, rational choice, and balance-of-power politics. The supreme principle of this order was the notion of sovereignty, the prerogatives of which included the exclusive power to dispense justice within a state's territorial borders and the right to engage in warfare beyond them. The I.C.C. challenges these prerogatives as well as the assumptions upon which they are based, first by listing "aggressive war" as itself a "crime," and second by assuming a jurisdiction for dispensing justice over subjects of purportedly autonomous states. For Grossman and the administration of President Bush, the I.C.C. represented a radical step not only toward undermining the traditional understanding of the states system but toward the replacement of it with a new one, an understanding of the world bound together not by the "self-regulating" logic of self-help but by an actual constitution of positive laws superseding the sovereignty of nations, perhaps even pointing toward the future establishment of a "world state." There have been other international government-like organizations in the past, to be sure. The United Nations has convened for over fifty years as a sort of international congress of states, but its resolutions carry no binding power, and it has in any case no executive apparatus of its own -- rather, it is dependent on the good will of its member states, particularly the more powerful ones, for enforcement. The I.M.F. and World Bank have been cited as wielding a kind of "soft power" over states requesting their assistance, but otherwise has no real jurisdiction to speak of. There is also the International Court of Justice (I.C.J.), which mediates disputes between states, but its jurisdiction is limited to a handful of treaties that include a specific provision authorizing it to act as such a recourse, and has no real power of enforcement to speak of either. Yet the I.C.C. is a different kind of international institution in that it has certain jurisdiction over the countries party to it; its rulings are quite capable of being carried out on the Court's own authority, provided only that the suspect in question is in its custody; most importantly, it operates according to its own standards and precedents, which, while based on statutes previously approved by the states party to it, facilitates the development of a tradition of legal discourse entirely independent of any one of them. We should note that the Court is, in a sense, but the most recent articulation of a concept that has been developing in international law since the early twentieth century -- that of "crimes against humanity." Now a crime is usually defined in terms of the breaking of a law, and so the very notion of "crimes against humanity" seems to imply the existence of "laws of humanity" transcending national boundaries, constitutional sovereignties, or legislative processes, which have been traditionally understood to be the legitimate manufacturers of positive law. It would then appear that "crimes against" or "laws of" humanity invoke some empirically unexperienced form of legitimacy. Critical theorist Jurgen Habermas (1997, 138-139) makes the observation that "basic rights" as such differ from positive law as usually conceived because, while their practicability obtains only by virtue of legitimate institutional frameworks, they can at least gain their validity exclusively from moral argumentation. The relatively recent preeminence of human rights brings with it a new debate on the relationship between morality and politics, and their contested status is well exemplified in the recent controversy over the I.C.C. and the staunch objections raised against it by the United States. What we are seeing, then, could be described as debates over a potential shift in world political ontology, from a conception of the international order based on a concrete and realpolitik idea of sovereignty to one based on a more abstract and contested idea of humanity. In the pages that follow, I want to investigate what is implied by the idea of a politics of humanity and how it can be construed as a project in overcoming the politics of sovereignty. It must be recognized that such an investigation, to be complete, would essentially encompass the entirety of international relations theory and history from Roman times to the present day. I will therefore have to content myself with the brief consideration of one perspective, namely Kant's, and of how it reflects against present debates. First, however, it would be useful to lend some consideration to the notion of sovereignty and its role in informing our traditional understandings of legitimacy and order in the international system. The following explication will focus on five thinkers -- Aquinas, Bodin, Grotius, Pufendorf, and Vattel -- whose views reflect various stages of thinking about sovereignty through the early modern period. | ||||||||||||||||||
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Sovereignty, as an ancestral concept in early modern European political thought, traces it origins at least as far back as Roman law, which also bears a connection to the early "natural law theory" of the Stoics (Weintraub, 11-2; Schneewind 1998, 17-8). It is this constellation that found its revival in twelfth and thirteenth century Christendom, and was perhaps best systematized in accordance with the medieval European world view by St. Thomas Aquinas (Schneewind 1998, 19-21). We can see the properties of sovereignty arising in Aquinas's attempt to determine wherein lies the authority to wage "just war" and to administer local justice. In both cases he argues that it is not the business of private individuals to take matters of life and death into their own hands; a private individual should rather appeal to "the tribunal of his superior" or to "persons of rank having public authority" (Aquinas, 1359-60, 1467-8). Justice, by way of "just war" or of condemnation, is always directed toward the good of the community or "common weal," and its prerogatives lie with those to whom the good of the community has been entrusted. On the other hand, Aquinas rules that it is not the domain of officers of the Church (who would otherwise seem to fit the preceding definition) to handle these matters. His reasoning here is somewhat cryptic: "those who shed blood, even without sin, become irregular" (1361, my emphasis). Aquinas believes that although the right to take life is in certain circumstances permitted both by natural law and God's law, it is yet inconsistent with the specific duties of Church officials to engage in the taking of life altogether; hence, "Ecclesiastical prelates accept the office of earthly princes, not that they may inflict capital punishment themselves, but that this may be carried into effect by others in virtue of their authority" (1468). It is thus by maneuvering between the predicates of "natural law" and "divine law" that Aquinas establishes an intermediate domain, the legitimacy of "human law," the jurisdiction of the earthly sovereign, subject only to the sovereignty of God. In Bodin we find hints of a similar distinction, in that the sovereign is answerable to "the law of God and of nature": "magistrates judge private persons; princes, magistrates; and God, princes" (Bodin 1992, 31). It is of course Bodin who is most closely associated with the identification of the modern state with sovereignty. Prior to the fifteenth century the very concept of state was much less explicitly political, and was more closely associated with social position, rank, and property (Dyson 1980, 25-26). The close connection between "state," "status," and "estate" in fact continues to be noticeable in political thought well through the eighteenth century; this constellation of meanings is informative of how political society was conceptualized, and what relations its members were thought to have to it and to each other within it. Locke described the fundamental properties of man as his "Life, Liberty, and Estate," and likens the monarch to a "Master of a Family" writ large; Pufendorf described the difference between the sovereign and subjects in terms of their "esteem," which he likened to "price"; Kant required an independence over one's material affairs to achieve "the estate of the citizen," and described the two natural "dignities" as being those of the people and of the sovereign (Locke 1988, 323; Pufendorf, 253-4; MM 6:314-5, 6:322, 6:329). The modern idea of "the state" emerged much by virtue of its frequent identification with "the king's estate," and the contribution of Jean Bodin was the endowment of the state with the moral powers of a will (Dyson 1980, 28, 32). In Bodin's formulation, law becomes the mechanism by which the sovereign power defines and exercises the moral will of the state, and it is the primary marque of sovereignty to "give law to all in general and to each in particular" (Bodin 1992, 56). This conception of sovereignty is, generally speaking, "absolute" in the sense that the sovereign power is answerable to no human authority, yet Bodin maintains that sovereigns are still subject to "the law of God and of nature"; the sovereign must adhere to certain precepts of "natural justice," notably "that a sovereign prince is bound by the contracts he has made, whether with his subject or with a foreigner" (Bodin 1992, 34-35). Traces of the social contract theories of subsequent centuries can thus already be found in Bodin, who was a student both of Roman law and of Stoicism. Yet despite his ethical appeal to the duties of the sovereign, Bodin is adamant in permitting no enforceable limitations against his free or even arbitrary exercise of power within his state. The only potential check against the potential tyranny of a legitimate sovereign is an act of intervention by "a virtuous [foreign] prince" or any foreign person not considered his subject. Thus we find in Bodin a paradigm of political legitimacy grounded in the theory of sovereignty; we also find precedent to what Grotius, Pufendorf, and Vattel will later theorize under the rubric of the "law of nations." Sovereignty implies an absolute property over one's territory and the subjects within, but no law exists per se beyond those borders -- except perhaps that "of God and of nature." It is Hugo Grotius, of course, who is often considered the founder of "international relations," and who reset the terms of natural law theory by calling for a theory of moral obligation independent of any appeal to God's law (the celebrated "Grotian problematic"; Schneewind 1998, 70-73). In doing so, he asserts that, beyond domestic realms -- i.e., where no sovereign claims legal dominion -- "written laws" as such are meaningless (Schneewind 1998, 70). Grotius is drawing upon the "just war" tradition inherited from Aquinas and his successors. Yet he changes the emphasis somewhat by identifying a "bare law of nature" distinguishable from "divine and human laws," and postulates a "primitive right...among those persons who are subject to no fixed tribunals" (Grotius 1925, 472, 477, cf. also 507). It is this "primitive" kernel of right, not "divine law," that determines the rights of sovereignties with regard to each other. Samuel Pufendorf, despite his nominal rejection of the Grotian etiamsi daremus hypothetical, can be credited with taking the secularization of natural law as it pertains to legitimate authority further, by relegating the divine to a backstage role as the origin of reason itself (Pufendorf, 154-5; Dyson 1980, 82). From the mid-seventeenth century onward, human sovereignty will no longer rely on Christian doctrine for its justification. Pufendorf describes dominion in relation to and against his idea of communion, which is the principle by which possessions are assumed to be available to the community. The idea of communion in natural law theory should be noted as an important contribution toward the theoretical justification of constitutional sovereignty based on some kind of consent. Pufendorf divides natural laws pertaining to the conduct of individuals "toward each other" into absolute laws and hypothetical laws; the former have unconditional applicability, and the latter suppose some intervening man-made institution or state (Pufendorf, 156-7). For Pufendorf, absolute natural law does not prescribe any more right to usage of things than can be accorded by a primitive idea of communion, and so dominion requires a human act establishing that such potential usage is reserved to a single owner to the exclusion of other men (176-7, 181). Dominion arises out of the conclusion of pacts and thus, for Pufendorf, is a moral action taking the form of a right (see 168ff). Among the prerogatives of the prince or the sovereign power is universal dominion over the lands and over the body, life, and goods of citizens "on account of their crimes" (187-8, 249, 256). The sovereign acquires an "esteem" above his subjects, and represents the quality of the community as a "moral whole." Emmerich de Vattel's Law of Nations, published in 1758, takes natural law theory beyond the individual by taking the jurisdiction of sovereignties as unities that can be presumed as such. Vattel projects onto the "body politic" an understanding and a will that constitutes the state not merely as a "moral whole" but as a "moral person" (Vattel 1834, lv, my emphasis). He begins by pointing out "that all men inherit from nature a perfect liberty and independence, of which they cannot be deprived without their own consent" (lvi). While it is true that individuals make "a partial surrender" of such rights upon their consent to unite into a civil society or state, they still remain subject to the laws of nature; to be sure, they do not so much "lose" their natural right as invest it in the state. It becomes the state that acquires the properties of moral identity within a state of nature -- it acquires the quality of sovereignty (lvi, 2). The society of sovereign states can thus be viewed as a "natural society" of "moral persons," with inherent properties of being "free, independent, and equal" (lxii). Like Pufendorf, he makes a distinction between "absolute" and "conditional" natural right to distinguish the status of individuals versus states (5), but insists that it is the obligation of both to "cultivate" and "discharge the duties" of what he calls "the universal society of the human race" (lx). "Communion" is a property not necessarily of a specific and bounded community; it refers also to the idea that the world exists, in the first and last instances, for the benefit of humankind in general; it is only out of necessity and contingency that it was eventually divided up into separate dominions (98). Vattel can thus be credited with working out the global implications of the state of nature. While Vattel's ideas still strongly derive from the "just war" tradition of sovereignty, by the time of Kant, the "right of war" as a "moral" right had fallen somewhat by the wayside. Kant did not consider any such moral right to go to war, but accepted the sovereign's prerogative as de facto to the state of nature. I do not mean to say that scholars and governments did not attempt to justify warlike acts on moral or humanitarian grounds after the eighteenth century, only that sovereignty, as an concept in itself, no longer required its justification via recourse to natural law. Sean D. Murphy explains a shift from "natural law theory" to "positivist thinking," which assumed the contractual ability of states and derived international law from existing treaties and actual practices (Murphy 1996, 47-49). Sovereignty was an assumed property of nation-states and was, by the time of the Concert of Europe, the very basis of international relations in the West. While the previous has been a highly selective overview of the development of the notion of sovereignty in Western political philosophy, it is sufficient for us to make some useful observations. Sovereignty implies an estate, and as such connotes a property and a status; this formulation also bears relevance on the "estate of the citizen" and the model for both is the master of a household, which was often seen to carry "resemblance...with a little Common-wealth" (Locke 1988, 323). Sovereignty also implies, if no longer a will in the voluntarist sense, a certain autonomous agency, and this brings to it a definite moral personality. Finally, sovereignty implies right. We have seen that the power to try crimes and dispense justice has been deemed one of the original prerogatives of sovereignty as far back as Aquinas; another has been to wage war. In this paradigm, sovereignty, law, and legitimacy, while not identical, are nevertheless inseparable and imply one another. They equally entail the prerogatives of "public power" as historically invested in the person of the monarch (on "public power" see Dyson 1980, 20n4). It is in this context that we understand Michel Foucault's statement that "Right in the West is the King's Right": It is in response to the demands of royal power, for its profit and to serve as its instrument or justification, that the juridical edifice of our own society has been developed. ...And when this legal edifice escapes in later centuries from the control of the monarch, when, more accurately, it is turned against that control, it is always the limits of the sovereign power that are put into question, its prerogatives that are challenged. ...When it comes to the general organization of the legal system in the West, it is essentially with the King, his rights, his power and its eventual limitations, that one is dealing. (Foucault, 94-5)Sovereignty represents a bounded totality of public power; it is the sum of all things political, and it determines what is meant by "political" within its purview (Wendt 1999, 206-7). Thus, in addition to implying a state, a will, and right, sovereignty implies a discourse, in the sense of an ongoing interaction or sets thereof with normalized sets of objects, terms, meanings and understandings. We are now in a position to shift our focus back to the question of the international system as an ordered anarchy or state of nature, to understanding a world political ontology rooted in a politics of sovereignty. | ||||||||||||||||||
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Anarchy can be defined simply as "the absence of centralized authority" (Wendt 1999, 246-7). Following in the tradition of taking states as "persons," Alexander Wendt asserts that the material or "pre-social" basis for taking states as unitary actors existing together in such an anarchy must be assumed. At the same time, Wendt stresses that individuality and anarchy are meaningless without some social or cultural basis for their interpretation and practice. He writes that "Anarchy as such is an empty vessel and has no intrinsic logic; anarchies only acquire logics as a function of the structure of what we put inside them" (249). At the base of this structure or "political culture" is how the states come to view themselves, each other, and the possible relations between them. Thus Wendt believes we need to distinguish between the "per se individuality of states" and "the roles or terms of individuality through which states interact" (246, 255-6). These terms of individuality can only come about through shared ideas that have been internalized as norms in the international system, and so form a political culture (249-50). Wendt describes the present international situation as possessing a "Lockean" or liberalist political culture, in which the underlying structure is that of mutual "rivalry." He distinguishes this from a "Hobbesian culture," which is based on mutual "enmity" or a "war of all against all" (see 259-78). Rivalry, according to Wendt, takes for granted that states each have a right to their "life, liberty, and property," although how much right and to whom can still be a source of dispute (279-80). The fundamental principle by which each state has rights as members of the states system is sovereignty, which regulates inter-state rivalry and forms the basis for international law; it permits a semblance of order and minimal trust by making a general norm of "status quo" (280-81). Wendt believes that sovereignty does this by "superven[ing] on the ideas of individual states" as a "collective representation," such that "states will make attributions about each other's 'minds' based more on what they know about the structure than what they know about each other, and the system will acquire a logic of its own" (283). Wendt argues that the political culture of the Westphalian system not only affects the behavior of states but in fact constitutes them as states. Generally, actors with the characteristics of sovereignty are recognized as states; but "recognition" as a sovereign state also implies a certain evaluation in terms of adhering to certain norms or criteria accepted within the international system as it understands itself (291-3). Such standards have historically involved whether the people in question are "Christian" or "civilized" -- which has been the justification for conquest and imperialism up through the mid-twentieth century -- or if the government adheres to basic standards of "democracy," "capitalism," or "human rights" (292-3). This culture of inclusion and exclusion also gives rise to a "collective identity" in the "Lockean" system, which can lead to (rare) moments of altruism within the system or the need for collective action against perceived outsiders (e.g., the infamous "rogue states"; 293-4). But perhaps the most interesting feature of the liberalist culture, as Wendt describes it, is how its very constitution as a "culture" is hidden such that states see themselves and each other as "possessive individuals," and this facilitates their mutual perceptions as those of rivals: It constitutes states as individuals with the right to play the game of international politics, but does so in a way that makes each state seem to be the sole proprietor and guardian of that right. Westphalian states are possessive individuals who do not appreciate the ways in which they depend on each other for their identity, being instead "jealous" of their sovereignty to make their own way in the world. An important reason for this individualistic attitude may be the criterion for membership in international society itself, which encourages states to treat juridical sovereignty as an entitlement due them as a result of purely their own efforts to establish empirical sovereignty first. The effect of collective amnesia that juridical sovereignty is dependent on others is to constitute self-interest as the appropriate way to relate to each other, and self-help as its systemic corollary. (295)The point Wendt is trying to make is that neither "self-interest" nor "self-help" are inherent properties of states; they are rather the result of a certain understanding of their own individuality (295). Thus, what has traditionally been taken for "common sense" in international politics is actually based on ideas that have been socially and historically constructed (296). This is not to say that sovereignty has not been beneficial to the world in that is has curtailed wars and established a basis for at least cordial, if not friendly, relations between most states. A "Lockean" anarchy of rivals is certainly preferable to a "Hobbesian" anarchy of enemies. Wendt is fond of the statement, "Anarchy is what states make of it," and even suggests the possibility of overcoming anarchy altogether in what he calls a "Kantian" culture based on friendship. | ||||||||||||||||||
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Immanuel Kant proposed a formula to achieve "perpetual peace" based on what he would later introduce as his theory of "public right" in The Metaphysics of Morals. Kant develops his theory of cosmopolitan right as part of a project to rework the natural law tradition on "right" in terms of his own a priori principles of pure reason, by demonstrating, at least implicitly, the categorical rights of human beings and their transmutation into "right of citizens of a state" (ius civitatis), "right of nations" (ius gentium), and "right of citizens of the world" (ius cosmopoliticum; 8:349n). For each category of right, Kant prescribes a "definitive article for perpetual peace," namely, that every state should have a "republican" constitution, there should be a permanent federation of "free states," and states should honor foreigners' right to visit (PP 8:349, 8:354-7, 8:357-8). While the practicality of Kant's ideas have been debated as to whether or not they would actually achieve "perpetual peace," what interests me here is the basis or ontology of Kant's idea of "cosmopolitan right." It is clear that Kant's three forms of public right are derived from one another. Right begins with the singular and innate right of freedom, which itself implies innate "equality," the quality of being "his own master...beyond reproach," and the authorization to act with regard to others (MM 6:237-8). Public right is distinct from natural or private right in that it denotes "a system of laws for a people, that is, a multitude of human beings, or for a multitude of peoples, which, because they affect one another, they need a rightful condition under a will uniting them, a constitution" (MM 6:311). Thus it is only through the mechanism of a rightful condition that "natural right" translates into ius civitatis. The right of citizens is, for Kant, the categorical or substantive basis for all other derivations of public right (MM 6:318). The state, as the idea (in the Kantian sense) of a legitimate entity, can only be the result of a constitution or "original contract," by which "everyone (omnes et singuli) within a people gives up his external freedom in order to take it up again immediately as a member of a commonwealth, that is, of a people considered as a state (universi)" (MM 6:315). Like Vattel, Kant considers the state as a "moral person" in the "state of nature" (PP 8:344, MM 6:343). But for Kant, being in the state of nature implies a nonrightful condition or a "condition of war" in relation to other states, and so "perpetual peace" would seem to require states to enter into a rightful condition in the spirit of a "social contract" (PP 8:354, MM 6:344). Now the state is not a "moral person" in the same way as a human being. A state, as an idea, is the hypothetical creation of a specific constitution. Its very existence as a distinct agent is dependent on (1) its causation by a constituent people and (2) its sovereignty or independence from higher authority. It becomes clear that, if there is to be a "right of nations" (ius gentium), it must follow a logic different from that of the "right of citizens" or "right within a state." For a state to enter into a contract that would produce in turn a "fusion of states" or a "world state" would mean that the individual states would in effect cease to be states, and it is in this light that we see the logical contradiction that Kant is attempting to grapple with. A right of nations, after all, presupposes the existence of a plurality of sovereign states, and thus presupposes a nonrightful condition; a world law to which all states were subject would imply "the form of a state as such," creating a civitas gentium that follows the logic of ius civitatis on a world scale. It is noteworthy that Kant had suggested the solution of a "cosmopolitan commonwealth under a single head" in his essay, "Theory and Practice," and while he showed doubts about it in "Perpetual Peace," he still mentions that a world republic would be "correct in thesi" (TP 8:310-11; PP 8:357). By the time of the Metaphysics of Morals, however, Kant had essentially dismissed it as a practical idea: "If such a state made up of nations were to extend too far over vast regions, governing it and so too protecting each of its members would finally have to become impossible" (MM 6:350). To fully understand how Kant arrived at his solution, it would be useful to recall Kant's distinction between three forms of judgment -- categorical, hypothetical, and disjunctive -- and their transmutation into the three transcendental categories of "Relation" -- substance, causality, and community (CPR A70-80/B95-106). "Community," for Kant, is a "combination" of the other two categories, and can be defined as "the causality of a substance in the reciprocal determination of others" (CPR B111). This definition is later clarified by Kant in a distinction between two conceptions of "community," communio, where "substances" coexist as a mere collective, and commercium, or "dynamical community," where substances continually determine each other simultaneously as a constituted whole (CPR A212-5/B259-61). Of the three categories of relation, we can see that the private rights of individuals (or citizens), being the original basis of public right, is the substantive right and that the rights of states, being dependent on the establishment of a "pact" (Kant emphasizes this point in PP 8:383), is a caused right. To overcome the difficulties of delineating such a rightful condition that can preserve the rights of citizens "of the world" while preserving the rights of nations, Kant employs the conception of "community" as commercium to derive his theory of "cosmopolitan right." Vattel, too, leaned toward a similar ontology earlier in the eighteenth century. He insisted that "The earth belongs to mankind in general; destined by the creator to be their common habitation, ...they all possess a natural right to inhabit it, and to derive from it whatever is necessary for their subsistence..." (Vattel 1834, 98). As we have seen above, Vattel applied Pufendorf's idea of communion to the original condition of the world as a whole; the rights of property and dominion arose later out of "necessity" (98). Yet, for Vattel, these rights are not total, and the human race as a whole continues to possess the earth in common at a fundamental level: All men ought to find on earth the things they stand in need of. In the primitive state of communion, they took them wherever they happened to meet with them, if another had not before appropriated them to his own use. The introduction of dominion and property could not deprive men of so essential a right; and, consequently, it cannot take place without leaving them, in general, some mean of procuring what is useful or necessary to them. (143)Vattel contends that the original rights of communion persist through the advent of dominion and property as the rights of commerce between nations (143-4). Commerce, for Vattel, becomes something more than the instrumentalist technique of accumulating wealth among self-interested rivals (which is how free-trade economics is often pictured today); it represents a continuance of mankind's natural right to the earth as a great "common weal," and a universal property that transcends the human imposition of dominion. In light of the above, Kant's cosmopolitan project can at least in part be seen as a continuation of Vattel's idealist view reconstructed within the framework of critical philosophy. Kant likewise argued that all things are, prior to the establishment of right, possessed by the world in common. Yet he makes a conceptual contrast with Vattel's "primitive state of communion," which he dismisses as "empirical and dependent on temporal conditions...[and] which cannot be proved"; he thus replaces it with what he calls "original possession in common," which he declares need not ever have been a reality but can be derived from practical reason (MM 6:262). If possession remains an abstract concept then it must be justified rationally, i.e., by a rightful condition, whereas if it were dependent on empirical or temporal conditions, it can still derive its legitimacy de facto. This puts Kant in a position to declare not only that the world "originally" belongs to human beings in common, but, lacking any such world wide rightful condition as a "world republic," it is essentially still and always will be held in common, and all domains claimed by nations are merely "provisional" (MM 6:350; see also van den Breemer, 2001). We should additionally note that while Vattel envisions commerce as a universal obligation descended from the epistemology of natural law, this obligation remains under the rubric of ius gentium, the law of nations; it is a natural right proprietary of the state of nature. Kant's commercium, in contrast, aims to designate a right that points over and beyond the "natural society." It is, for Kant, by virtue of the people of world standing in a relation of commercium, as members of a dynamical community of people and of peoples capable of productive interaction and mutual concern, that one can entertain the possibility or even necessity of a practical right that transcends the boundaries of particular social compacts. Ius cosmopoliticum, based not on causality but on reciprocal determination, obtains via a logical form that is different from the social contract. Whereas the right of the state emerges via a rightful condition, one could identify cosmopolitan right as emerging from something akin to a rightful community. | ||||||||||||||||||
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Cosmopolitan right, as formulated by Kant through the conceptual mechanism of commercium, seems to provide a paradigm that reaches beyond sovereignty. It is not the will of the state, nor its right, that provides the basis of the political in the global community, but humanity as a whole, as a "dynamical community." Nor is it necessarily by virtue of estate -- Kant is careful to stress that it is not humanity's common possession of the world, but rather the ability of human beings to interact within it, that provides the basis of ius cosmopoliticum (MM 6:352). Kant frequently makes reference to the fact that the earth is enclosed and limited: "the spherical surface of the earth unites all the places on its surface; for if its surface were an unbounded plane, people could be so dispersed on it that they would not come into any community with one another, and community would not then be a necessary result of their existence on the earth" (MM 6:262). He does not want to argue for cosmopolitan right on the basis that "there is no property," perhaps out of fear that such an argument might be construed to justify conquest and colonization (see, e.g., MM 6:353). Rather, it is out of the necessity of people living in community that they are obliged to engage in commerce with one another, that underlies the commercium. Rose van den Breemer (2001, 10) points out that, while "commerce" is often thought of in the narrow sense of economic trade, Kant was more likely to espouse a broader notion of "a general exchange of ideas, an intercourse or interaction between people." What we have then, in not so much a "body politic" on a global scale as what we might call a body cosmopolitic of interacting peoples and nations, but with a sense mutual concern and interrelationship such that "a violation of right on one place of the earth is felt in all" (PP 8:360). It should be pointed out that cosmopolitan right does not necessarily contradict sovereignty per se (although some do disagree). To be sure, Kant is writing from within the same tradition discussed above, which accepts sovereignty as an inescapable condition of right. While Kant does not acknowledge any debt to Grotius, Pufendorf, or Vattel in either the essay on "Perpetual Peace" or The Metaphysics of Morals, and even chides them as "sorry comforters" regarding the laws of war and peace (PP 8:355), it is clear that the terms of his project have been inherited from a long-standing philosophical problematic regarding the moral status of the European nation-state. Kant was not looking to undermine either domestic laws or the international system as they stood in his time. But this leaves a conceptual gap, for, as we have seen, positive laws are a function of sovereignty, and their properties are transferred into practical public right by virtue of the properties of sovereignty. Now cosmopolitan law is fundamentally different from positive law, because it derives not from the estate, the will, or the right of the sovereign, but from the rightful community of humanity. This leaves unanswered the question: How are the peoples of the world to come together in such a way as to effectively constitute a body cosmopolitic? To this question there is no easy answer. In a 200-year retrospective on Kant's "Perpetual Peace," Jurgen Habermas (1997) argues that the very nature of the international arena has changed significantly, and, for this reason, Kant's idea of cosmopolitan right is in need of reformulation. He argues that Kant proposed his idea for perpetual peace at a time when warfare was fairly limited, confined between whole polities based on conflicting "reasons of state"; he is writing from a historical perspective that has yet to experience such things as world wars, civil wars, guerrilla warfare, or wars of nationalism, ethnic cleansing, or genocide (Habermas 1997, 115). Habermas asserts that this has changed the nature of demands for peace such that all aggressive warfare is deemed criminal -- in this sense, the demands of international law have already moved beyond Kant (115-6). Kant was also writing under the impression that sovereignty was a solid and unsurpassable norm, which Habermas insists is, on one hand, false, and on the other hand, inconsistent with cosmopolitan right. A number of scholars such as Susan Strange (1996) have argued that the state is in fact "in retreat." Habermas believes that we are emerging into a "postnational constellation," in which the prerogatives of the nation-state are being mitigated by increasingly influential non-government actors such as multinational corporations (Habermas 1997, 122-3; Habermas 2001, 78-9). He points out numerous effects of "globalization" that have seriously weathered down the effectiveness of the nation-state (Habermas 2001). Increasing interdependence has given rise to political, economic, social, and cultural integration across traditional borders and produced fissures within them. This has rendered the territorial assumption behind the nation-state increasingly problematic: "Because nation-states must make decisions on a territorial basis, in an interdependent world society there is less and less congruence between the group of participants in a collective decision and the total of all those affected by their decision" (Habermas 2001, 70). The changing nature of global society is threatening to move the nation-state toward obsolescence. Habermas thus argues that cosmopolitan right, to be effective on a world scale, requires some form of institutionalization. First of all, given that the final end of cosmopolitan right is to protect the autonomy of "world citizens," it does not make sense to leave its enforcement with individual states: "The point of cosmopolitan law is, rather, that it goes over the heads of the collective subjects of international law to give legal status to the individual subjects and justifies their unmediated membership in the association of free and equal world citizens" (Habermas 1997, 128). In any case, the increase in global interdependence and interconnectedness has rendered it so nation-states cannot always be effective in guaranteeing these rights, but at the same time it has made it possible to envision a "world society" (Habermas 2001, 80; Habermas 1997, 130-31). Cosmopolitan right, in Habermas's view, requires an actual supranational constitution providing for its universal adjudication and enforcement, and argues for an international regime with full legislative, judicial, executive, and military capabilities (Habermas 1997, 134-6). Habermas believes that the political needs of world society are such that we must in fact move beyond the idea of basic rights and entertain a full-fledged "world domestic policy." "International law," as usually conceived, is no longer a sufficient paradigm for relations among peoples. He believes it is possible to "envision the democratic legitimation of decisions beyond the schema of the nation-state" while stopping short of declaring a "world government." (Habermas 2001, 110). He argues that we can take advantage of the growing "global public sphere," as well as non-government organizations and international organizations, to facilitate rational deliberation and "will-formation" (110-11). Furthermore, "global powers" must become proactive in broadening their own and their constituents' perspectives from "national interest" to "global governance" (111-2). In short, it seems that Habermas wants a global order with the functionality of a state, but without the state itself. In Habermas's appraisal, the sovereignty of the nation-state has been compromised in two ways: its territorial jurisdiction has been irreparably ruptured, and its legitimacy has been undermined. Both of these processes are the direct result of underregulated global trends, and so, in order to properly manage these trends, his solution is to essentially elevate the prerogatives of states to the global level. He is calling for the general reconceptualization of the international community as a single polity across a continuous territory -- the unified property of a world estate, where human right is right. While he is insistent that he does not want a world government per se, he nevertheless espouses a basis for the formation of a global will grounded in a universal notion of right. The prerogatives of world sovereignty are to operate de facto, if not de jure. Wendt does not believe we need to go so far, and thinks a transition from a "Lockean" culture of anarchy to a "Kantian" culture based on amity is possible without a centralized locus of authority. If Habermas's perspective can be described as an "institutionalization approach" to achieving a cosmopolitan order, Wendt's could be described as an "internalization approach." Wendt is not convinced that the nation-state is in decline: "It may be that non-state actors are becoming more important than states as initiators of change, but system change ultimately happens through states" (Wendt 1999, 9). Thus, he is not prepared to eschew altogether the idea of "order within anarchy" altogether. The conceptual problem, for him, is the matter of national "self-interest." As we have seen, Wendt describes the current international situation as one of sovereign states who recognize each others' sovereignty but are otherwise in assumed rivalry. The "Lockean" culture is organized to reinforce "self-help" thinking among states. Wendt does not deny that states act in their own interest, but he argues that the general determinants of such interests vis-a-vis the international system are contingent. The system itself plays a role in how states view themselves and each other, and so what needs to be rethought is not "self-interest" per se but "the givenness of the 'self' in 'self-interest'" (317). In Wendt's assessment, it is perfectly reasonable for states to come together in a peaceful states system without the intervention of a world constitution. This system would probably take the form of "collective security" and/or a "pluralistic security community" on a world scale (Wendt 1999, 299-302). While he is not nearly as specific as Habermas in terms of how this is supposed to happen, he postulates that the very structure of the states system can change via processes of "social learning" that foster the formation of a "collective" or "super-ordinate identity" (327, 364). Such processes gradually reconstitute the international political culture such that the norms implied by a "Kantian" global polity are internalized by its members to the extent that it informs not only their actions but their very interests (305-6). Wendt believes that states can come to identify with each other as states to the point of becoming altruistic and identifying with the community as a whole: "International interests are now part of the national interest, not just interests that states have to advance in order to advance their separate national interests; friendship is a preference over an outcome, not just a preference over a strategy" (305). In this way, the internalization of norms in a Kantian culture produce a semblance of a "rule of law" without the need for a centralized authority; we would have an international system that could be described neither as a "state" nor as "anarchy" (307-8). Wendt believes that the process of overcoming anarchy is "multiply realizable": "Kant, for example, argued that republican states would create a 'Kantian culture.' I agree with that claim, but there might be other pathways to the same effect -- Islamic states, socialist states, 'Asian Way' states, and so on" (342-3). It would thus be premature to jump the gun on a world constitution based on a liberal-democratic model. In any case, Wendt believes we are already moving somewhat in a "Kantian" direction in the form of an international public sphere, which facilitates among its members a "self-awareness" as a global community (375-6). I cannot say which perspective, Habermas's or Wendt's, is correct. The two approaches in fact converge on a number of points, and each seems to assume what the other takes as the goal state. Both Habermas and Wendt argue, with Kant, against the possibility of a world state, and both rely finally on the mechanism of a "world public sphere." The basic difference is each's starting point: Habermas assumes an eventual decline of the nation-state, while Wendt assumes its persistence. Accordingly, Habermas calls for a political paradigm that compensates for the "failure" of sovereignty, and Wendt calls for the loosening of its grip. At the same time, both call for a broadening of political consciousness from "national" to "global" concerns, and each envisions something resembling "rule of law" on a world wide scale. It is also interesting to observe that both still cling to at least the idea of sovereignty, only Habermas seeks to elevate it to the global level, while Wendt wants to preserve it among the states. This is not altogether inconsistent with Kant's proposal, who believed that public right required some ordering of society in accordance with the "idea" of a state, and, with regard to the rights of world citizens, wavered between a full-fledged "cosmopolitan commonwealth" and a "federation of free states." Cosmopolitan right is, according to Kant, "a supplement to the unwritten code of the right of a state and the right of nations necessary for the sake of any public rights of human beings and so for perpetual peace" (PP 8:360). | ||||||||||||||||||
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