A human right to political membership & the right to territory

Introduction

The individual human right to political membership and the states’ territorial rights are often framed in a conflicting relationship. The global justice debates frame the right to political membership and territorial rights by focusing on stateless individuals/refugees as claimants of the former and sovereign states as the claimants of the latter. However, this mode of framing rights can lead to possible neglect of a people as an equally important right claimant. It is thought that since individuals compose a people and states are composed of a people, the categories of individuals and a state must cover the category of a people. Kant’s Right to Hospitality is often employed to reinforce this mode of framing rights. For Kant, a right to hospitality is “the right of the 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 (. . .) as long as he behaves peacefully (. . .)” (PP 8:357–8:358). It is not a “right to be a guest (for this a special beneficent pact would be required, making him a member of the household for a certain time, but the right to visit (. . .)” (PP 8:357–8:358). As such, it is merely a right to temporary stay and not to permanent residence, which will require special treaty and contracts with the states.

Benhabib (2004) has suggested that Kant’s right to hospitality highlights but does not resolve the dilemma created by a state-less individual’s right to become a political member of a state and the sovereign state’s right to deny them such membership. While Derrida (Critchley et al., 2001) thinks that the right to hospitality in Kant is contradictory because Kant argues for a universal right of hospitality but then makes this right conditioned on the state’s decision. However, the phenomena of statelessness can be experienced by two right claimants: the individuals as refugees and a people such as indigenous populations that were perceived as non-state people by the European colonizers at the time of colonization. This perceived statelessness of indigenous people ¹ continues to manifest itself as an ongoing struggle of these people to negotiate their terms of membership and land claims against the settler states.

Neglecting a people’s claims in the political membership and territorial rights debates is problematic for at least two reasons. Firstly, in doing so, we fail to honor the indigenous communities’ claims in many parts of the world. These communities continue to resist or negotiate the terms of their membership/non-membership and dispute their land claims against the settler states. Secondly, we show little attention to the recent developments in the global justice practice on this topic. For instance, United Nations and Canada now recognize the force of self-government, political membership, and the land claims of indigenous peoples. ² Moreover, employing Kant’s right to hospitality to reinforce our existing categories of debate is problematic because we can miss one possible way of interweaving the Indigenous peoples’ claim in the global justice debates. In this paper, I aim to do just that. I argue for introducing the non-state people’s claim in our debates on political membership and territory by employing a context-oriented reading of Kant’s Right to Hospitality.

In substantiating my position, I contribute to two bodies of work—the general debate on political membership and territorial rights and the specific scholarship on the Right to Hospitality in Kant. Concerning the former, I emphasize the force of indigenous people’s claims in the debate. And regarding the latter, I propose a continuation and enhancement of a context-oriented reading of Kant’s Right to Hospitality which interweaves the non-state people’s claims to their land and against forced political membership in the global justice debates.

My task of employing Kant’s Right to Hospitality to introduce the non-state people’s claims in the political membership and territorial rights debate is three-fold. Firstly, in section two, I provide a brief background on the debate and how the Right to hospitality is employed in it. Secondly, in section three, I offer a context-oriented interpretation of the Right to Hospitality such as the one found in the works of Garrett W. Brown that is focused on the claims of non-state people. Finally, in section four, I offer an enhancement of this interpretation by employing it to reframe the debate on political membership and territories. In the last two sections, I bring this discussion to a close by exploring the caveats and implications of the proposed reframing with some concluding thoughts.

A right to political membership of individuals & the right of sovereign states to territory

A human right ³ to political membership is a right to be a member of political society. This right transcends the politically constructed state territories because valid claims to political membership can be made in a pre-civil condition. Hannah Arendt (1968: 177) termed it “a right to have rights” because we can have all the rights established and granted by a political authority only when we are part of a political community.

The sovereign states’ right to their territory can have multiple justifications. ⁴ Firstly, a state’s right to its territory can be justified if it maintains a system of law that regulates private property and secures people’s basic rights and political participation (Stilz, 2011). Secondly, a state’s right to its territory can be justified by the reasoning that it represents the collective ownership of the land and resources of the individuals who inhabit the territory. As the representative of the citizens’ ownership of the land and resources, a state can exclude outsiders when outsiders impose obligations on the citizens’ freedom to use their resources (Blake, 2013).

In the case of refugees, the individual’s human right to political membership can conflict with a sovereign state’s right to its territory. Refugees, as state-less individuals, have a human right to be made a member of a political community so they can have important human rights—this right transcends states’ boundaries. This is particularly true in a state-centric international order where the states are viewed as the primary duty bearers of human rights (Arendt, 1968), and the fulfillment of several rights (e.g. a right to universal education or health) may presuppose a state structure (Arendt, 1968; Beitz, 2009: Ch. 6). However, at the same time, sovereign states can exclude/refuse to receive refugees as members/citizens by exercising their right to territory.

Benhabib (2004: Ch. 1–2) has used Kant’s right to hospitality to frame the conflicting demands of the individual’s human right to political membership and a sovereign state’s territorial rights in the form of a dilemma. She further suggests that while Kant was one of the first philosophers to highlight this dilemma by formulating his right to hospitality, he left the dilemma unsolved. She explains that Kant’s right to hospitality is a legal cosmopolitan right of individuals to not be sent away by the host country when doing so will put their lives in danger or treated with hostility when they arrive at foreign lands. She argues that in formulating this right Kant recognizes the right of individuals to a temporary stay in a foreign land, without extending this right to a permanent stay. She explains that for Kant, a right of permanent stay is a privilege that a sovereign can choose to grant to foreigners. Benhabib argues that read in this fashion, Kant’s right to hospitality highlights the dilemma created by a state-less individual’s right to become a political member of a state and the sovereign state’s right to deny them such membership.

Benhabib calls the dilemma created by a state-less individual’s right to become a political member of a state and the sovereign state’s right to deny them such membership the democratic legitimacy dilemma. The dilemma is framed as follows: a self-governing state must be able to decide when it will receive the refugees. However, at the same time, they are human rights-respecting entities that must respect the human right to hospitality, that is, the cosmopolitan rights of individuals. She argues that a commitment to the right to self-determination of democratic states will resolve this dilemma because a self-governing democracy is likely to generate laws in accordance with human rights commitments. In the case of the rights of refugees, they will maintain porous boundaries. Benhabib’s solution seems simplistic because a self-determining democracy may not always align its laws in accordance with the human rights of individuals outside of its territories (See Brown, 2009), so much so a self-governing democracy may even have difficulty aligning its values with the rights of minorities within its territories. ⁵

Derrida (2000), (Critchley et al., 2001) has also discussed Kant’s right to hospitality in the context of the stateless individuals’ right to political membership against the sovereign states’ territorial rights. Critchley et al. (2001) has implied that Kant’s right to hospitality is a contradictory idea. This is because “Kant seems at first to extend the cosmopolitan law to encompass universal hospitality without limit” (Critchley et al., 2001: 21). Meaning a right to hospitality entails every individual’s right to visitation (Besuchsrecht). However, at the same time, Kant made this right dependent on state sovereignty because a right of residence (Gastrecht) would require treaties and contracts with these states.

Even if we were to reject any contradiction in Kant’s right to hospitality, Derrida (2000) has suggested that the very notion of hospitality is also contradictory. Derrida points out four acceptations, accepted meanings or interpretations, of the notion of hospitality. I will focus on his third and fourth interpretations because only these two interpretations are relevant to my discussion (for details on the other interpretations, see Derrida, 2000). According to the third interpretation of the term, we do not know what hospitality is yet, for it may entail the host being hostile to the guest or guest taking the host as a hostage. According to the fourth interpretation of the term, hospitality contains a contradiction. It requires a door through which outsiders can be welcomed. In this sense, hospitality is an “othering” concept that “others” the outsiders as right-less individuals. The very structure of the notion of hospitality requires that there are outsiders with no rights. Derrida argues that for there to be a right of residence, there must be people with no residence; “Everything – and this is what cosmopolitanism means – is subject to an inter-state conditionality. Hence, there is no hospitality for people who are not citizens.” (Derrida, 2000: 16). Derrida alludes to Hannah Ardent’s reflections on what happened in Europe with the decline of the nation-state and millions of displaced persons.

Benhabib is right that Kant’s right to hospitality highlights the interaction between the claims of political membership and that of territory. However, I shall argue that read in a certain way, it highlights these two claims not for the individuals and not in the context of refugees. Recognizing different claimants in a different context will highlight, firstly, that contra Derrida, the notion of hospitality embedded in Kant’s right to hospitably is not contradictory. And secondly, it can inform new ways of framing the claims of political membership and territory. In the next section, I turn my attention to introducing such an interpretation of the right to hospitality.

The Right to hospitality in Kant

For Brown (2010: 310), hospitality in Kant is the minimum normative requirement necessary to establish an ethical condition for intersubjective communication at the global level. Crucially, he suggests that a conditional right to permanent residence in Kant balances the claims of visitors, that is, European traders, against that of the visited, that is, native people. I shall commit to these two central features of Brown’s reading and flesh out more details in the next section. In this section, I will give a brief background of Kant’s right to hospitality by discussing the nature and context of this right, whose right it is, and against whom and why this right is restricted. In doing so, I do not offer a novel reading of this right but rather a continuation of what I call a context-oriented reading similar to the one found in the works of Brown. ⁶

Regarding the nature of the Right to Hospitality in Kant, I want to suggest that the Right to Hospitality as a Cosmopolitan right is a non-coercive right to make trade offers and present oneself for society. In the Metaphysics of Morals, the category of cosmopolitan right arises in the empirical context of unavoidable contact between nations and the effects of their relations on each other to promote the possibility of peaceful commerce (MM 6:352). Cosmopolitan right read as facilitating the possibility of a trade is a well-accepted interpretation in literature (See Byrd and Hruschka, 2010: Ch 9; Flikschuh and Ypi, 2014: 99–126; Stilz, 2014: 197–220). Kant argues that while nations have determinate boundaries, nature has nevertheless enclosed them together by placing them on spherical-shaped earth, thereby making their contact with each ultimately unavoidable (MM 6:352). Consequently, nations stand as a community of possible physical interactions, that is, of thoroughgoing relations of each to all making trade offers. Everyone is entitled to make these offers without being treated with hostility. He writes that nations “stand in a community of possible physical interaction, that is in a thoroughgoing relations 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” (MM 6:352). The category of cosmopolitan right, therefore, emerges as a trade right from the universal laws of possible commerce among nations to support peaceful relations among them. Kant writes, “This right, since it has to do with the possible union of all nations with a view to certain universal laws of their possible commerce, can be called cosmopolitan right (ius cosmopoliticum).” (MM 6:352)

The Right to Hospitality is introduced in the Perpetual Peace under the third definitive article for perpetual peace as limiting Cosmopolitan Right to mere conditions of hospitality that include claims to trade and present oneself for society. Kant writes, “Cosmopolitan right shall be limited to conditions of universal hospitality” (PP 8:357). Kant further writes, “What he can claim is not the right to be a guest (. . .), but a right to visit; this right, to present oneself for society,” belongs to all human beings (. . .).” (PP 8:356). Kant does not comment much on what is entailed by “to present oneself for society.” But considering the overall context of Kant’s Right to Hospitality, the aspect of “to present oneself for society” can be taken as a communicative right to present oneself on foreign shores for interaction that could entail making offers of trade, offer to be a member of their society, or an expression of one’s thoughts. For instance, Niesen (2007) has argued that right to hospitality as a communicative right can be read as a right parallel to a right of freedom of one’s expression of thought. ⁷ Furthermore, the right to hospitality as a communicative right can be taken as a right with reciprocal structure in line with Kant’s rights formalism that assumes juridical equality among the subjects of rights, which in this case are the European traders and the individuals of the host nations (Ajei and Flikschuh, 2014).

The Right to Hospitality is a non-coercive public right. Kant argues that in a thoroughgoing community of possible physical interactions, the acts of nations affect each other—justice in one part of the world is felt in all other parts of the world. As a corollary, the cosmopolitan right having to do with these relations is a matter of principles of right and not of ethics and is placed under the category of public right (MM 6:352). While rights claims by their very nature are externally coercive (MM 6:231), public Right can be a non-coercive right as opposed to the private Right. Private Right encompasses rights relations between private individuals who raise rights claims against each other in a state of nature. The reciprocal structure of rights and the equality of their status make it morally problematic for anyone to enforce rights. Therefore, only an Omni-lateral Will can adjudicate the right claims and establish rights (MM: 6:230, 6:256, 6:263, and 6:264).

Kant argues that the thoroughgoing community of possible physical interactions also leads us to think of three sets of rights under the general concept of public right, including the right of a state (on a domestic level), the right of nations (on an international level) and the cosmopolitan right (MM: 631). ⁸ While the concept of Right is intrinsically coercive (Ripstein, 2004) with respect to individuals on the domestic level, this may not be so for the states on international and cosmopolitan levels because of their unique juridical character (for details see Flikschuh, 2010) and the context in which they are that is different from that of individuals in a state of nature (for details see Ripstein, 2010: Ch. 7 & 9). Cosmopolitan right may not be enforced on states like a private right on individuals—cosmopolitan right is then a non-coercive public right. This reading runs contrary to the natural-right based interpretations of Kant’s cosmopolitan right, which can justify an individual’s legitimate claim to be anywhere on the earth regardless of state boundaries. A detailed discussion on why Kant should or should not be viewed as a natural right thinker is beyond the scope of my present discussion. However, later I shall briefly comment that cosmopolitan right entails balancing the claim of the individuals to be anywhere on earth when their life is in danger and the claims of the sovereign states to their territories (Corradetti, 2020: Ch. 9).

The Right to Hospitality is discussed in the context of European colonial trade relations with other nations and non-state people across the globe. Kant’s discussion of Cosmopolitan right and Right to Hospitality is contained in PP and MM, and in both texts, the introduction of Cosmopolitan right and the right to hospitality are followed by the passages on what Kant considers to be unjust trade practices of some European states with other nations. Kant argues that while the right to hospitality is limited to trade, some European states have inflicted unimaginable violence on other continents and have plundered their people under the pretext of trade. He points out that how these violent trading ventures are not even profitable for European corporations but instead provide an opportunity for European nations to train warships for wars in Europe (PP 8:358). Kant here talks about, inter alia, nations/empires such as China and Japan, local populations in India, slaves in Africa, as well as non-state/nomadic people of the Americas. He writes, “If one compares with this the inhospitable behavior of civilized, especially commercial, states in our part of the world, the injustice they show in visiting foreign lands and peoples (which with them is tantamount to conquering them) goes to horrifying lengths. When America, the negro countries, the Spice Islands, the Cape, and so forth were discovered, they were, to them, countries belonging to no one since they counted the inhabitants as nothing.” (PP 8:358).

In the context of colonialism, the Right to Hospitality is a right of European traders/companies who represented their states and were usually not stateless in the examples quoted by Kant (PP 8:358.). The right to hospitality is their right to make offers of trade, not treated with hostility or sent away when doing so will put their lives in danger (PP 8:357). Considering the instances quoted by Kant, it is their right against nations/empires (such as China and Japan) and non-state people (such as natives in North America) and not essentially sovereign states. However, the right is restricted, as it is not a right to be a guest but merely a right to visit, and the host nations can turn down the offers of trade/society (PP 8:358). What restricts the right of hospitality to temporary stay, among other things, is the claims of these nations and state-less people, which were neglected by European traders who “counted the inhabitants as nothing” (Brown, 2010). In both PP and MM, in the passages on the cosmopolitan right, Kant reflects on the injustice inflicted by the European traders on their host nations and the claims of these nations that justify restricting the European trader’s right to hospitality.

The claims of the host nations include: (1) Not be treated with hostility and violence (PP 8:353). Kant condemns the violence inflicted in India under the pretext of trade and writes “In the East Indies (Hindustan), they brought in foreign soldiers under the pretext of merely proposing to set up trading posts, but with them the oppression of the inhabitants, incitement of the various Indian states to widespread wars, famine, rebellions, treachery, and the whole litany of troubles that oppress the human race.” (PP 8:353) (2) To be able to turn down/restrict the offers of trade; Kant commends Japan and China for restricted trade with European states and writes “China and Japan (Nippon), which had given such guests a try, have therefore wisely (placed restrictions on them), the former allowing them access but not entry, the latter allowing access to only a single European people, the Dutch, but excluding them, like prisoners, form a community with the natives.” (PP 8:358). (3) To exclude the foreign traders from their lands (PP 8:358; MM 6:353).

(4) Not be plundered or have their land taken from them against their will but through contracts that do not take advantage of their ignorance. Kant asks whether in a newly discovered land one can take possession of the land that is neighboring the people who have already settled there without their consent. Kant answers that one can take possession of the land if in doing so no one else’s use of land is encroached. However, if these people are shepherds or hunters who depend on great open lands for their sustenance, then this possession cannot be taken without a contract that does not take advantage of these people. Kant argues that this is true even if we feel that taking their land would be to the world’s advantage “partly because these crude people will become civilized and (. . .) partly because one’s own country will be cleansed of corrupt men” (MM 6:353). Kant argues that “all these supposedly good intentions cannot wash away the stain of injustice in the means used for them.” (MM 6:353).

(5) Not to be forced to enter a civil condition. Kant continues the same line of reasoning as above and writes, “Someone may reply that such scruples about using force in the beginning, in order to establish a lawful condition, might well mean that the whole earth would still be in a lawless condition; (. . .)” (MM 6:353). Kant explains that this reasoning is not very different from the reasoning of a revolutionary who thinks that it is justified for the people to use force to reshape the constitution when it is bad and be unjust for once to lay the foundation for a just society. Kant argues that such reasoning is specious because a revolutionary uses this pretext to suspend the lawful condition and destroy all rights, thereby using a wrong means to an end (MM 6:353).

I have argued that the right to hospitality as a cosmopolitan right by its nature is a non-coercive trade and communicative right. It is developed in the context of colonization, where it is a right of European traders against other nations and non-state people whose claims restrict this right. How does this interpretation of the right to hospitality inform the framing of the right to political membership and territorial rights—I tackle this question in the next section.

Non-state people and the claims to political membership & territory

In this section, I use the context-oriented interpretation of Kant’s Right to Hospitality discussed in the previous section to accomplish three tasks. Firstly, I argue that for Kant, the claims to political membership and territory primarily in question are that of a non-state people. Secondly, I show that the focus on non-state people resolves the issues of hospitality as a contradictory concept but it poses the claims of non-state people to political membership and territory as conflicting. Finally, I propose a resolution to these conflicting claims in Kant’s work and reflect on its overall implications for the democratic legitimacy dilemma that was posed in section two.

In the proposed context-oriented reading of Kant’s Right to Hospitality, the claims of political membership and that of territories of concern are not that of stateless individuals and sovereign states respectively but rather that of stateless people. Kant describes a people as “a multitude of human beings” (MM 6:311) and a state as a “the whole of individuals in a rightful condition, in relation to its own members” (MM 6:311). It follows that the stateless people are a multitude of individuals that are not in a rightful condition which each other under a will uniting them. ⁹ Recall that in the context of colonization, the traders who arrive at the foreign shores are citizens and representative of their states. The traders encounter empires such as China and Japan and stateless people such as the natives of the Americas who are entitled to reject their offers of trade and exclude them by denying them a permanent stay—consequently, the focus of the Right to Hospitality is zoomed in on the claims of state-less people. Kant includes the relations of individuals and a state in the Right of States and relations among states in the Right of Nations which he argues excludes non-state people (MM 6:343). Cosmopolitan Right is then the third layer of Kant’s system of rights that includes, the relationship of the non-state people with individuals and states. This reading of Cosmopolitan right is also consistent with Kant’s numerous allusions to the relations of the European traders with non-state people in his discussions of Cosmopolitan Right and the Right to Hospitality as noted in the previous section (See also Meckstroth, 2018; Niesen, 2007). On this reading of Cosmopolitan right and right to hospitality the claims to political membership and territory under consideration will be primarily that of the non-state people.

A focus on the claims of non-state people in Kant’s right to hospitality resolves the issues raised by Derrida, however, it gives rise to another set of conflicting claims. Regarding Derrida’s claim that the right to hospitality in Kant is contradictory, Brown (2010: 125) has offered two interesting responses. Firstly, he has suggested that Derrida’s narrow focus on the rights of refugees or visitors discounts the historical context in which Kant’s right to hospitality was developed, that is, the context of European colonization. In this context, the right to hospitality is not solely aimed at securing the interests of the visitors but also that of the visited. Secondly, Brown has further suggested that a conditional right to permanent residence (Gastrecht) does not make Kant’s right to hospitality contradictory but rather it balances the claims of visitors against that of the visited. It ensures that permanent settlement is secured only through additional contracts with the local inhabitants. Crucially, this balance of claims creates conditions for future interactions about cosmopolitan justice between the plurality of world voices to promote just global relations.

Regarding Derrida’s claim about the contradictory nature of the very notion of hospitality, we can say that the notion of hospitality embedded in Kant’s Hospitality is not an othering concept containing contradiction as per Derrida’s fourth interpretation of the term. It is because the non-state people could not “other” the outsiders, that is, the European traders, as right-less individuals. This is because first, the traders were already members/citizens of their sovereign states. Secondly, the state-less people could not conceive of traders as not having something they may not have conceived of or established within their territories, that is, a right to political membership. However, the concept of Hospitality operating in Kant’s right to hospitality can be viewed as consistent with Derrida’s third interpretation of the term according to which we do not know what hospitality will entail “as yet.” In other words, the non-state people did not know if the hospitality entailed them being held hostage until after the European traders arrived, and the European settlers did not know if the hospitality entailed hostility toward them until after they had arrived on the foreign lands.

A focus on the claims of non-state people in the right to hospitality resolves the issues raised by Derrida, however, it creates an apparent conflict in the non-state people’s claims to political membership and territory. A human right to political membership is a license to all other political rights and it transcends state boundaries. And while it is by entering a civil condition that a political society is formed and the right to political membership of individuals is established, yet the non-state people cannot be forced into a civil condition. Secondly, sovereign states assert rights to their territory to exclude the outsiders in virtue of being a sovereign and as representative of individuals’ ownership of the land and resources within a territory. And while establishing a sovereign will require entering a civil condition, yet the non-state people can make territory claims to exclude outsiders without forming a sovereign authority. So, the dilemma can be revised as: The non-state people must have a claim against being forced into a civil condition to form a right to political membership. However, at the same time, although they are not in a civil condition they must be able to assert claims to territory and exclude outsiders.

Did Kant offer a resolution to these conflicting claims of non-state people against forced political membership and to their territory? I want to suggest that while Kant did not explicitly highlight these conflicting claims or give a solution, a resolution can be found using different elements of his right to hospitality as interpreted in the previous section. The above question can be further explored by asking why for Kant, the non-state people cannot be forced into a civil condition with us? Recall, that it is because the purpose of the right to hospitality as a cosmopolitan right is not to ensure the political membership of individuals or people but simply to ensure the possibility of peaceful trade and to present oneself for society.

Could presenting oneself for society entail that the European traders can enforce the non-state people to form a civil society with them? No, it may not; the right to hospitality as a cosmopolitan right is a non-coercive public right that cannot be enforced by the private wills of the European traders/companies. Commentators on Kant’s cosmopolitanism have pointed out several reasons for why Kant thought that the non-state people cannot be forced into a civil condition with us, e.g., only a federation of state can do so (Stilz, 2014), we assume that non-state people are already in a civil condition (Ripstein, 2014: 3), our contact with them is not unavoidable (Muthu, 2014: 4), given the juridical character of states, the cosmopolitan right as a non-coercive public right cannot be enforced to avoid a right controversy (Flikschuh, 2010; Meckstroth, 2018). It is beyond the ambit of my argument to assess each of these reasons in detail. My position is more in line with the last view, given how I interrupt the public right in Kant. Furthermore, the right to present oneself for society as a communicative right will consist of European traders interacting with the non-state peoples as their juridical equals, that is, just as European traders consider themselves to be the representatives of their states they will consider the non-state individuals to be the representative of theirs (Ajei and Flikschuh, 2014).

Even if the traders cannot force the non-state people to enter in a civil condition, should not the non-state people be obliged to force each other to enter in a civil condition as a matter of principle? Kant’s postulate of Public Law is a principle that issues precisely such a duty, that is, a coercible moral duty to enter in a civil condition with each other when we cannot avoid being in contact with each other. For Kant, according to the Universal Principle of Right, it must be possible for me to acquire external objects of my choice. According to the universal principle of right “Any action is right (. . .) if on its maxim the freedom of choice of each is consistent with the freedom of each in accordance with the universal law” (MM 6:230). ¹⁰ However, the equal freedom of each makes it morally problematic to use private force to acquire property. This necessitates the postulate of public law, that is, a coercible moral duty to enter a civil condition with others, to establish the highest authority in form of a collective general will that can rightfully establish rights to property. ¹¹ Given Kant’s postulate and account of property, it seems odd that the non-state people can resist the coercive duty to enter a civil condition.

Flikschuh (2017) has argued that non-state peoples did not have such a duty as they did not make property claims which serve as a precondition for the generation of a coercive duty to enter a civil condition in Kant. She uses the first-person mind-dependent approach to establish her position. According to this approach the general form of Kant’s argument is such that the sensible experience leads the agent to reflect on the non-sensible conditions necessary for making the experience possible. For instance, in the case of property, the act of claiming the property is an external sensible experience—it makes one reflect on the necessary precondition for it to be possible that is on the notion of intelligible possession which in turn makes the duty to enter a civil condition morally necessary so that the property rights can be established. However, in the case of non-state people they may not have made any private property claims because they may not have held a conception of private property rights, as such, they may not have reflected on the necessary precondition of the intelligible possession. Hence, from their perspective they may not have been under a morally necessary duty to enter a civil condition to establish property rights.

Even if we accept that non-state people cannot be forced into a civil condition by the traders or each other it remains unclear that how they can make property claims to exclude the outsiders without entering a civil condition and forming a sovereign. After all, Kant did think that the sovereign as a supreme proprietor of the land represents people’s ownership of the land and resources. While we make private property claims in a state of nature these claims are only provisional and not conclusive. These property claims become conclusive in a civil condition with the establishment of the sovereign, who as the supreme proprietor of the land can establish legal rights to it (MM 6:646, 6:256, 6:264). Kant writes “since the land is the ultimate condition that alone makes it possible to have external things as one’s own, and the first right that can be acquired is to possession and use of such things, all such things must be derived from the sovereign as lord of the land, or better, as the supreme proprietor of it.” (MM 6:323). Then how, for Kant, can the non-state people make any claims to land to exclude the outsiders?

Stilz (2014) has argued that some native tribes in the Americas did make property claims. In the case of these non-state people, the provisional claims to property made in the state of nature are forceful enough to exclude the outsiders. Of course, these claims are not conclusive and a Universal General Will may be required to make these claims conclusive but that Universal General Will cannot be represented by the European traders/companies (which counts as a private will) but rather by a federation of states. As such, on this line of reasoning, the non-state people do have a duty to enter a civil condition that can be enforced by a federation of states (Stilz, 2014: 217). But if non-state people did make property claims then, contra Flikschuh, they did have a duty to enter a civil condition, and so the discussion of resolving the conflict of claims of non-state people against forced political membership and to their territory has reached an impasse.

I agree with Stilz that some native tribes in the Americas did make property claims. However, it remains unclear if they had a duty to enter a civil condition that could be enforced by a federation of states, even if one was present at the time of colonization. Today we do have something akin to a federation of states such as the United Nations (UN), which would make one wonder if the UN can force certain nomadic societies that do exist today into a civil condition with us or each other, or for that matter enforce the indigenous communities into political membership with each other and with the states that they reside in? The answer that the UN should be able to do so seems counter-intuitive, inconsistent with UN’s Declaration of Rights of Indigenous Peoples, and with the interpretation of cosmopolitan right as a public right which I have previously argued is non-coercive by an Omni-lateral Will such as a federation of states.

I think Flikschuh is right that the general structure of Kant’s argument is important to bear in mind here but so is Stliz, that some non-state people did make property claims as we know based on evidence. ¹² As per the structure of Kant’s argument, empirical possession gives us the experiential material to think of the necessary presuppositions (i.e. the intelligible possession) which in turn gives rise to the morally necessary principles and obligations (i.e. the Postulate of Public Law and the duty to enter a civil condition). While non-state people made property claims, we do not know the exact nature of these claims that is, how they experientially related to their property. We, therefore, do not know what necessary presuppositions and morally necessary principles and obligations their experiential material may have given rise to. ¹³ So, even if we assume that the non-state may have had duties toward each other relating to property claims, we do not know the exact nature of these duties. Which gives another reason for why any duties of entering a civil condition cannot be enforced by an omini-later will such as a federation of states or a private will such as European traders—the duties that the non-state people had toward each other originated from their unique relationship with the property and were for them to discharge. ¹⁴

How do all these insights resolve the revised framing of the conflicting claims of the right to political membership and that of territory? Non-state people must be able to assert their claims to the territory to exclude outsiders. However, at the same time, they cannot be forced into a civil condition with us or each other to establish a right to political membership. If we commit to two values, the apparent conflict of the above claims can be dissolved. Firstly, a commitment to acknowledging the limits of our knowledge of what duties they may have against each other that is, limits of our knowledge of their world view. And secondly, a commitment to the idea that whatever those duties may be they are for them to discharge against each other that is, regard for their right to determine themselves. We acknowledge that we do not know what hospitality is, as yet, or we may never know what it is until we are open to communicating with the distant stateless peoples on equal terms to understand their worldview that is vastly different from ours—this serves as an impetus to extend our respect to the claims to self-determination of not only democracies but also of the distant state-less peoples. Finally, what we get is an enhanced version of Brown’s reading of a right to hospitality in Kant; that is, it is a communicative right which is effective when we are willing to acknowledge the limits of our understanding of the non-state people’s world view and recognize their claims to self-determination.

Kant, Colonialism, & Race: Some Caveats

In this section, I reflect on some possible objections to my above arguments. Firstly, the hierarchy of race and colonialism go hand in hand. For instance, Moreton-Robinson (2015) has shown how the legacy of Captain James Cook’s choice not to follow the instructions to make a treaty with the natives and instead declare the land uninhabited was an embodiment of white sovereignty (Moreton-Robinson, 2015: Ch. 8). This is so because it willed away the sovereignty of the non-white native people by placing them in nature as propertyless unequal subjects.

Admittedly, Kant did not disapprove of racism in all his writings. Kant connected the racial hierarchy with hierarchy in politically relevant mental and agential features and placed natives at the bottom of this hierarchy—he considered them impassive, lazy, devoid of culture, and weak (TPP, 8:175-76). ¹⁵ If Kant significantly contributed to the consolidation of racial hierarchy (Bernasconi, 2002), why use his work to explore the claims of indigenous populations? Pauline Kleingeld has rightly pointed out that we should resist the temptation of viewing Kant as either a consistent inegalitarian or an consistent egalitarian (Kleingeld, 2011: 94; 2014). She has shown that Kant favored hierarchy in races and colonialism until the mid-1790s, after which he changed his views (Kleingeld, 2011; see also Corradetti, 2020: Ch. 5). When Kant dropped his idea of racial hierarchy, he introduced the idea of cosmopolitan right granting full juridical status to all races (Kleingeld, 2011: 182). He changed his view from thinking that in the future, Europe would give laws to the rest of the world to that of inclusion of non-European groups of people (Corradetti, 2020: 91). In fact, “much of Kant’s treatment of cosmopolitan right is a strong critique of colonialism with far-reaching political implication for his contemporaries” (Kleingeld, 2011: 77).

Commentators on Kant and race have insisted that even if we accept that Kant changed his view for good, nevertheless, one cannot read his whole body of work as consistently anti-racist (Gani, 2017) and this tells us something about racism in general and Kant’s racism, in particular (Allais, 2016). It is further claimed that Kant’s hospitality reduces hospitality to mere conditions for the possibility of commercial enterprise, making the refugee crises a protraction of colonial injustice (Huseyinzadegan, 2019). Throughout this discussion, I have argued for a different reading of hospitality in Kant. However, two further points are to be made. Firstly, my aim in this discussion is not to defend Kant or his corpus against racial accusations. Instead, I simply intend to explore the implications of his views to enhance our understanding of where we stand and can no longer stand in our global justice debates on territorial and political membership rights. Secondly, of course, Kant could have said more against racism and colonization, and perhaps he did not. His position on race is one of his moral failings, among others. For instance, Kant continued to favor the natural superiority of men over women (MM 6:279) and denied women a full citizenship status and a right to vote (MM 6:314; see also Kleingeld, 2011: Ch. 7.) until the end of his writing career. However, “a single-minded scapegoating of an individual representative of one’s philosophical past can encourage exoneration of the present”: the more insistently we point fingers at the views of this representative, the less we may feel the need to evaluate our own philosophical proclivities on this score (Ajei and Flikschuh, 2014: 2).

Secondly, my use of the term “non-state people” needs qualification. In viewing indigenous people as non-state, the colonizers did not simply perceive these people as lacking a state but also as people with an inferior status on a constructed racial spectrum. I borrow the term “non-state people” for the natives whom European traders encounter from the literature on Kant’s hospitality. In using this term, I simply intend to engage with this literature and not to sanitize the European settlers’ treatment of the indigenous population which was admittedly effected by their pro-racism views.

This raises the question of why we should view the status of indigenous populations or this entire debate about their claims from the European perspective. Admittedly, the indigenous people may not view themselves as state-less people or in a non-civil condition. Moreover, the notions of sovereignty and what constitutes a civil condition are European constructs. Why use them as a yardstick to measure the status of indigenous people? One reason for doing so is that in advancing a debate consisting of European narrative/vocabulary, one can at least show the inconsistencies within this narrative to which we can no longer commit.

Granted, advancing the debate about indigenous people’s claims in the European vocabulary could be of some use. However, there is a further worry. We may wonder why the indigenous populations in the Americas were not considered nations and empires such as that of China and Japan. It is quite likely that racial categorization may have underpinned this distinction. If we remove this spurious racial categorization, the distinction between the “non-state people” and nations may not subsist. As a corollary, today, we should view indigenous populations and their territories as sovereign states. We should do this but it is not feasible because presently, we may be far from actualizing it. Nevertheless, given the status of indigenous people here and now, we may start by acknowledging their claims to territories, membership, and self-government as a national minority with an eye to the aspiration of their independence as sovereign states.

Secondly, my above discussion about whether the indigenous people had a duty to enter into a civil condition with the European colonizers might come off as an attempt to extract legal obligations from Indigenous communities when they have already faced the burden of extreme injustices. My intention is not to inquire about what could be done to make indigenous people willingly enter a civil condition with their visitors. Instead, as state earlier, it is to explore how and why neglecting the indigenous people’s claim to their land and against forced political membership is problematic even within the European narrative consisting of the notions of sovereignty and civil condition. My analysis informs us that Kantian Hospitality does not justify the European colonization of indigenous territory. Notably, the settler states may not force political membership and violate the territorial rights of indigenous populations and instead should honor their self-governance. Of course, this proposal might be unsatisfactory because states continue to violate the Indigenous peoples’ claims. However, a theory’s strength is not determined by how it prevents a particular injustice but by its consistency and tenability in arguing against it.

Thirdly, even if we go along with the conceptual exercise, it must be pointed out that the argument that we do not know the nature of duties indigenous peoples had towards each other, which therefore makes their “colonisability” uncertain, seems to lack robustness and ethical clarity. Our limited understanding of indigenous people’s duties does not make the practice of colonization morally uncertain but rather unjust. Colonization entails using force without any rightful claim to it, without moral justification, and therefore is unjust. Moreover, accepting the limits of our understating creates room for the inclusion of indigenous people as juridical equals in the domestic and international constitutional transition. The right to hospitality entails communicative interaction with distant peoples, which opens a space for the global public to enlighten itself and form a global civil society (Cavallar, 2015: 54–55). This communicative interaction with distant peoples can also lead to their inclusion in domestic and international constitutional transition (i.e. political approximation to peace) (Corradetti, 2020: Ch. 9; 2017).

Corradetti (2017: 437) has argued that in the context of colonialism, Kant places the global constitutionalist burden on the shoulders of the European visitors. The colonial forms of domination violated non-state people’s equal juridical standing. The instances of colonial injustice comprise “constitutional crises” which should have prompted self-reflectivity in the colonizers raising the question of how to relate with other constituencies justly. This, in turn, should lead to a transformation of their domestic constitutional system as well as the cosmopolitan constitution (Corradetti, 2017: 438). Interestingly, Cordetti’s proposal caters to the worry that the relationship between the indigenous populations and the settler states requires more than recognition-based approaches discussed by Coulthard (2014). This is because receiving the recognition of indigenous peoples’ claim to self-government by the settler states manifests the continuation of the colonial foundations of this relationship. Instead, this relationship requires a more critical and reflective attitude of indigenous people in their self-government through the state legal institutions to establish their equal juridical standing (Coulthard, 2014: Conclusion). Interestingly on Cordetti’s view, rightly so, Kantian hospitality takes us beyond the setter states recognition of the indigenous self-government. It promotes their active self-government with equal juridical inclusion on the domestic and cosmopolitan levels.

Conclusion

I have employed a context-oriented interpretation of Kant’s right to Hospitality to highlight the claims of non-state people in our framing of the conflicting claims to political membership and territory. I argued that in Kant, while the non-state people are not in a civil condition, we recognize their provisional claims to the territory as being forceful enough to exclude outsiders. Furthermore, the non-state people cannot be forced by us into a political membership with us or each other because we do not know the nature of obligations that they may have toward each other which are for them to enforce- this acknowledgment of our limits of knowledge of their world view serves as an impetus to extend our regard for the claims to self-determination to non-state people (and not only democratic states). Acknowledging the limits of our knowledge of their obligations may translate into, inter alia, meaningful consultations with and participation of indigenous communities in executing political decisions that impact them on domestic and international levels. Recognizing these limits of our understanding can introduce philosophically thought-out modes of reframing their claims in our theoretical debates and an insightful attitude in negotiating their terms of political membership and land claims against sovereign states.

How is this re-framing and its resolution useful and relevant to our current theory and practice of the right to membership and right to territory? If we are looking for (not a Kantian but) Kant-inspired insight to respond to the general dilemma of political membership and rights to territory, then one may be asked to put the questions of interpretations aside and wonder why should we study Kant’s right to hospitality in the context of stateless people and colonialism. After all, colonialism is a relic of the past and stateless people barely exist, as almost all the world’s population is divided into states. Perhaps reading the Right to Hospitality in the context of stateless individuals to frame the competing claims of right to political membership and territory helps us understand relevant and current issues of our time. However, I think this view is mistaken on the methodological matter of interpretation and the substantive matter of including all relevant rights claimants.

There are still many Indigenous people around the world who have and continue to resist the legal tools of establishing their political membership into the states that they reside in, legal tools that they feel can undermine their peoplehood and inherent right to self-govern. For instance, several policies enacted by the Indian Act in Canada such as the Residential School System (first discussed in the 1840s and last school closed in 1996) ¹⁶ were resisted by many First Nations, Inuit, and Metis communities in Canada who saw these policies as showing a lack of regard for their ways of life. ¹⁷ And many indigenous communities have and continue to dispute and negotiate their land claims under their treaty rights in Canada. ¹⁸ Being attentive to the claims of non-state people communicated by Kant’s Right to Hospitality can encourage a critical examination of how we frame our current debates to include the claims of all relevant rights claimants including the indigenous peoples.