Brendel, Christoph

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  Navigation CHRISTOPH BRENDEL —  3 August, 2015 Print  0    INTERVIEWDebating Cosmopolitan LawAn interview with Immanuel Kant and Georg Friedrich von Martens (Part II)Christoph BrendelThis is the second part of a fictional conversation with Immanuel Kant and Georg Friedrich von Martens. These two outstanding scholars never met face-to-face in real life but come together for a fictional debate, set sometime in the year 1801 in a country house a few miles outside of Königsberg. The matter in dispute will be Kant’s idea of a cosmopolitan law. Von Martens, much as he respected Kant, was critical regarding the philosopher’s novel concept. In the second edition of his ‘Précis du droit des gens moderne de Page 1 of 8Debating Cosmopolitan Law | Völkerrechtsblog20.09.2017https://voelkerrechtsblog.org/debating-cosmopolitan-law-2/l’Europe fondé sur les traités et l’usage’ (1801) he had bluntly denied that cosmopolitan law was positive law at all.Read the first part of the conversation here where the two scholars discuss their approach to international law and Kant starts to explain his concept of cosmopolitan law.Brendel: Professor von Martens, does Professor Kant’s explanation convince you that cosmopolitan law is necessary?von Martens: Well, it has been interesting to listen to Mr. Kant’s clarification as to the need for a cosmopolitan law. I understand that according to his theory there should be one. Yet again, I have to stress that there is no universal positive law among all nations and probably never will be.Let us have a look at Europe. Even the international treaties and customary laws of the Turks differ in many points from the international law of the rest of our Christian Europe. On the other hand, outside of the European continent the newly independent United States of America have completely adapted to the European legal order (Précis, § 9). But, of course, they are former European colonies.Looking beyond our own continent, I am familiar with the treaties and customs between the European powers and the non-European empires and states like very few others. My Recueil des principaux traités (7 vol., 1791-1801) as well as my Cours diplomatique (3 vol., 1801) contain ample evidence of the extensive legal relations that exist between Europe and other parts of the globe. However, the customs of the peoples in other parts of the earth, even of civilised ones, differ far too much from our own. They would not understand our notion of a science of the general, positive Page 2 of 8Debating Cosmopolitan Law | Völkerrechtsblog20.09.2017https://voelkerrechtsblog.org/debating-cosmopolitan-law-2/European law of nations (Précis, § 9). If there is a society comprising all states and peoples, it can only be a natural one governed by natural law alone (ibid., §§ 1f.).Brendel: Professor Kant, would you please respond to what your counterpart just said.Kant: I fear we won’t reach an agreement on that particular point. As I have mentioned already, I proceed from the general assumption that wherever humans can come into contact with each other, they have to leave the natural condition and establish a public legal constitution between them. All nations, regardless of their state of civilisation and geographical location, have to be brought into the light and protection of public law. A mere reference to the law of nature, with which Mr. von Martens contents himself, is unthinkable to me. Reason dictates that the status naturalis is a state of perpetual, even if not permanent, war – and we need to leave it and try to approximate perpetual peace. This is what prompted me to propose a cosmopolitan law, which requires nothing except the prerequisite for public law: its general public announcement (§ 34; Toward Perpetual Peace, appendix II).Brendel: Let us talk about the substance of cosmopolitan law. Professor Kant, would you please give us a summary of its principles.Kant: With pleasure. First of all, cosmopolitan law is analogous to international law in respect of its fundamental elements, namely the freedom and equality of all nations on our globe, be they small or large, civilised states or still savage nomads. Consequently, all peoples have an equal right to the territory in which they live. As you will know, I Page 3 of 8Debating Cosmopolitan Law | Völkerrechtsblog20.09.2017https://voelkerrechtsblog.org/debating-cosmopolitan-law-2/have dealt with the issue of property in the first part of my Doctrine of Law which is traditionally known as natural law but I prefer to call it private law. Now despite all shortcomings of the law between nations in general – particularly its adjudication and enforcement which remains essentially in their own hands –, cosmopolitan law aims at securing the external mine and thine for those unprotected by international law. In view of the unspeakable wrongdoings of the Europeans all over the world during the last three centuries, who treated the inhabitants of other continents as nothing and their lands as res nullius, the idea of cosmopolitan law may help to prevent such wrongful invasions and usurpations in the 19th century (Toward Perpetual Peace, 3rd definitive article; Doctrine of Law, § 62).In addition to this, I have presented hospitality as the central principle of cosmopolitan law. This was the lowest common denominator I could think of, uniting all the peoples of the earth. I have studied and taught anthropology for decades and I still read every new travel report I can get my hands on. It appears to me that since antiquity almost all the peoples of the earth have acknowledged the idea of hospitality in one way or another. Take, for instance, Constantin François Volney’s account of the Arab Bedouins and how even they treat their guests in an extraordinary courteous manner. The principle of hospitality, therefore, is highly suitable to regulate the interaction between all nations of the earth in our endeavour to approximate perpetual peace.In a nutshell, hospitality means that you have to treat foreigners coming along your shores or land borders in a non-hostile manner – provided, of course, they themselves Page 4 of 8Debating Cosmopolitan Law | Völkerrechtsblog20.09.2017https://voelkerrechtsblog.org/debating-cosmopolitan-law-2/do not behave inhospitably or as enemies. Upon arrival, the visitors may declare their intentions and any form of relation between them and the host nation may ensue. But every people is basically free to turn down any request and ask the visitors to leave, unless they are  in dire straits, such as in the case of shipwreck or similar emergencies. It is also permissible to deny certain nations, with whom you have already had negative experiences, entry to your territory or restrict them to particular places, as the Japanese and Chinese are doing vis-à-vis the Europeans.Brendel: Professor von Martens, how do you deal with the problem of European incursions and colonialism overseas? And what do you think about the cosmopolitan principle of hospitality?von Martens: I do not deny that there are many examples of usurpations by European powers in other parts of the globe, as, for instance, Guillaume-Thomas Raynal describes them in his Histoire philosophique et politique des établissements et du commerce des Européens dans les deux Indes (6 vols., 1st edition 1770). As to the acquisition of property through occupation, one of the basic requirements is, of course, that the object is actually res nullius. And the right to property is the same for all humans, irrespective of their religion or customs. Natural law does not authorise the Christian nations to appropriate the lands that are effectively occupied by the savages (Précis, § 36).What Mr. Kant describes as the principle of hospitality strikes me as not so different from what I teach about the rights of foreigners to entry, passage and sojourn according to the European law of nations. Every state has exclusive authority over its territory and may decide for itself who Page 5 of 8Debating Cosmopolitan Law | Völkerrechtsblog20.09.2017https://voelkerrechtsblog.org/debating-cosmopolitan-law-2/enters, passes through, resides or settles – and who does not. Only when a person’s own preservation is in danger is it permissible to access another nation’s soil without permission.Yet, in comparison to previous ages today the European powers treat foreigners in a much more humane way, at least with regard to the European continent, leaving the colonies and overseas commerce here aside. In times of peace the states now generally grant the liberty of entry, passage, and sojourn through sea, land, and the majority of rivers. This liberty is confirmed in numerous treaties of peace, demarcation of borders and commerce, and acknowledged by general custom and the fundamental laws of several states. I spare you the details, but the trend is clearly towards a – in the words of my dear colleague – more hospitable world, at least in Europe (Précis, § 84; on the question of the European overseas commerce see ibid., § 150).Brendel: It seems to me that we have been able to clarify some issues regarding the concept of cosmopolitan law. We have, however, also encountered fundamental, possibly even insurmountable differences between the two of you. For now, I would like to thank you for the fascinating conversation. Professor Kant, thank you for making it possible despite your delicate health. Professor von Martens, we wish you a safe journey back to Göttingen.______Christoph Brendel is jurist and a PhD candidate at the University of Leipzig, currently living in Warsaw.Page 6 of 8Debating Cosmopolitan Law | Völkerrechtsblog20.09.2017https://voelkerrechtsblog.org/debating-cosmopolitan-law-2/ISSN 2510-2567Tags: Cosmopolitan Law , History of International Law , Legal Philosophy , Positive LawPrint Facebook Twitter EmailNo CommentLeave a reply Logged in as ajv2016. Log out?   RelatedDebating Cosmopolitan LawTowards a Constitutionalism of the WretchedJudgment and diversityPREVIOUS POSTDebating Cosmopolitan Law NEXT POSTA Critique of Proportionality Balancing as a Harmonization Technique in International Law Page 7 of 8Debating Cosmopolitan Law | Völkerrechtsblog20.09.2017https://voelkerrechtsblog.org/debating-cosmopolitan-law-2/SUBMIT COMMENT Notify me of follow-up comments by email. 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Debating Cosmopolitan Law: An interview with Immanuel Kant and Georg Friedrich von Martens (Part II)

  Navigation CHRISTOPH BRENDEL —  29 July, 2015 Print  1    INTERVIEWDebating Cosmopolitan LawAn interview with Immanuel Kant and Georg Friedrich von Martens (Part I)Christoph BrendelThis fictional conversation will bring together two persons of outstanding importance for science in the late 18th and early 19th century who never met face-to-face. One was a professor of logic and metaphysics from Königsberg (now Kaliningrad), the other a professor of natural and international law from Göttingen. The former revolutionised philosophy through his critical method, the latter paved the way for the modern discipline of international law. Their names are Immanuel Kant (1724-1804) and Georg Friedrich Page 1 of 8Debating Cosmopolitan Law | Völkerrechtsblog20.09.2017https://voelkerrechtsblog.org/debating-cosmopolitan-law/von Martens (1756-1821). The matter in dispute will be Kant’s idea of a cosmopolitan law which he had introduced in ‘Zum ewigen Frieden. Ein philosophischer Entwurf’ (Toward Perpetual Peace, 1795) and the ‘Metaphysische Anfangsgründe der Rechtslehre’ (Doctrine of Law, 1797) [1]. Von Martens, much as he respected Kant, was critical regarding the philosopher’s novel concept. In the second edition of his ‘Précis du droit des gens moderne de l’Europe fondé sur les traités et l’usage’ (1801) he had bluntly denied that cosmopolitan law was positive law at all. Hence little stands in the way of a stimulating debate – set sometime in the year 1801 in a country house a few miles outside of Königsberg and originally conducted in the German language – which may provide insights for the discussions in political philosophy and international law even today.Christoph Brendel: Professor Kant, Professor von Martens, is the idea of cosmopolitan law a fantastic and overstrained conception of law – or a necessary complement to domestic and international law?Immanuel Kant: There can be no doubt that what I call Weltbürgerrecht, weltbürgerliches Recht or ius cosmopoliticum, in fact describes a legal, not an ethical order. And it certainly is an indispensable part of public law in the approximation of perpetual peace (Toward Perpetual Peace, 3rd definitive article; Doctrine of Law, § 62).Georg Friedrich von Martens: I respectfully disagree. Although we all have to give credit to our esteemed colleague for his efforts to distinguish law from ethics, the ius cosmopoliticum and its principles belong to the field of philosophy, not of positive law. Let me briefly summarise how I understand this idea of Mr. Kant: The principles of Page 2 of 8Debating Cosmopolitan Law | Völkerrechtsblog20.09.2017https://voelkerrechtsblog.org/debating-cosmopolitan-law/cosmopolitan law are supposed to be different from those of international law. They are inferred from (1) the fact that all states, peoples, and individuals inhabit one and the same globe, (2) the claim that the soil of the earth originally was common to all, and (3) the belief that it would be possible one day to establish a positive society among all (Précis, § 9). I simply cannot accept the proposition that this conception of a cosmopolitan law constitutes positive law.Brendel: Let me take a step back. What is your approach to international law?Kant: As you all know, I am not a jurist, but I have taught natural law according to the textbook by Gottfried Achenwall for many years, including the natural law of nations. I have read more books on international law than the average law professor. But let me be clear about this: my interest is to uncover the metaphysical first principles of the doctrine of law based on reason alone. I want to show what the legal principles among nations should be, not what they are. The jurists may determine what is legal at a certain place at a particular time, but in order to know whether this is also right we need a metaphysical system. Philosophers, as long as you give them full freedom of speech, are in the best position to develop such a system (Doctrine of Law, preface and introduction; compare also ‘Der Streit der Fakultäten (The Conflict of the Faculties, 1798)’).von Martens: With all due respect, while I do think that the study of natural law and ethics can teach us jurists a lot – and I discuss both concepts in the very first paragraphs of my book –, the focus of legal scholarship is on the positive essence of international law. I try to distill it primarily from the existing treaties and customs among nations.Page 3 of 8Debating Cosmopolitan Law | Völkerrechtsblog20.09.2017https://voelkerrechtsblog.org/debating-cosmopolitan-law/Brendel: So there is common ground between your views nevertheless?von Martens: Yes, of course, we share a great deal. Both of us conceive of nations as moral persons in a state of nature ruled by natural law, comparable to human individuals before the foundation of the state. I applaud my esteemed colleague from the Albertina for his insight that the simple principles of natural law do not suffice and that states have to develop positive arrangements capable of remedying the inconveniences of the state of nature (Précis, § 9). I am, however, sceptical as regards the feasibility of a federation of all states of Europe, let alone the whole earth (ibid., § 17; compare also Einleitung in das positive europäische Völkerrecht auf Verträge und Herkommen gegründet, 1796, Vorbericht).Kant: As is well known, I have long been fond of the idea of a European federation of states, which the Abbé de Saint-Pierre and Jean-Jacques Rousseau proposed. It is a pity my otherwise very knowledgeable counterpart thinks such a union is utopian, but lawyers tend to have a rather limited power of imagination… Yet, I very much welcome his project of a science of a general, positive European law of nations. It provides a fresh start and could be emulated in other parts of the world. I only caution not to forget that the idea of international law, or law in general, cannot and must not be reduced to the empirical facts.Brendel: Now in order to understand how cosmopolitan law fits into the picture I want to raise a question which is rarely asked: Why cosmopolitan law? Why is another sphere of public law, beyond the international and domestic, necessary in the first place, Professor Kant?Page 4 of 8Debating Cosmopolitan Law | Völkerrechtsblog20.09.2017https://voelkerrechtsblog.org/debating-cosmopolitan-law/Kant: First of all, you have to understand the rationale of my philosophy of public law. It rests on the postulate that all persons who interact with one another must belong to a public legal constitution. Only the transition from the natural condition to a civil or public legal constitution is able to secure the external mine and thine (Doctrine of Law, §§ 8, 15, 41).Secondly, let me explain my concept of international law. Not all nations of the world are subjects of it. I see no way how savage nations like the Tartars, the Hottentots or the American tribes, who do not form a state and even eat their enemies, could be part of a functioning international legal order. How could those peoples, who do not submit to a common authority and law internally, possibly ever enter into a federation with others? In order to stress this point I proposed – similar to, but less successful than Mr. Bentham’s concept of international law – the new term Staatenrecht, ius publicum civitatum instead of the old Völkerrecht, ius gentium (ibid., § 53).Moreover, when discussing the idea of international organisation we obviously have to think about how to put it into practice. In the 2nd definitive article of Towards Perpetual Peace I remarked that the federation of states – which back then I thought could possibly start with enlightened republican France at its centre – would gradually expand and finally comprise of all states. However, I had first and foremost the states of Europe in mind. For now, the encounter between our continent and the civilised nations in distant parts of the world – for example, China, Japan, and the states of Hindustan – can only fall under the 3rd definitive article on cosmopolitan law, not under the 2nd definitive article on international law. To be sure, I am Page 5 of 8Debating Cosmopolitan Law | Völkerrechtsblog20.09.2017https://voelkerrechtsblog.org/debating-cosmopolitan-law/convinced that one day we will have a legal union of all the civilised nations of the earth. For the time being, however, we must start with our own continent. The nations in other regions, for example in Asia, are encouraged to do the same. If only the Brits would let them in peace!Consider, finally, my argument why a world republic, and thus perpetual peace, is in the end unfeasible: with the excessive enlargement of a state of nations over vast stretches of land the government as well as the protection of every single part of it would eventually become impossible. A multitude of such entities would, on the other hand, once more confront each other like in the unfortunate state of nature (ibid., §§ 54, 61).Coming back to the question “Why cosmopolitan law?” I hope the answer is clear by now. My concept of international law, based on the idea of a federation of states, is limited. The relations between states and non-state peoples, as well as the relations between nations of different continents – who have all been irrevocably drawn together into a community particularly by European colonialism – are nonetheless in need of a public law restricting their external freedom, thus cosmopolitan law with its general principle of hospitality due to all humankind. – I apologise for the monologue, but I see that cosmopolitan law is a mystery to many people. Unfortunately, I fear my remarks in ‘Toward Perpetual Peace’ and the ‘Doctrine of Law’ have only managed to outline the concept in a fragmented way. I was running out of time, you know.(End of part I. The conversation will continue on Monday, 3 August 2015 with part II.)Page 6 of 8Debating Cosmopolitan Law | Völkerrechtsblog20.09.2017https://voelkerrechtsblog.org/debating-cosmopolitan-law/__________________________[1]    The German notion of Recht can be translated as either law or right. Rechtslehre is commonly translated as Doctrine of Right and, consequently, Völkerrecht and Weltbürgerrechtas international right and cosmopolitan right. However, I find this unconvincing and, therefore, translate Recht here as lawinsofar as it describes a legal order rather than a subjective legal entitlement.Christoph Brendel is jurist and a PhD candidate at the University of Leipzig, currently living in Warsaw.ISSN 2510-2567Tags: Cosmopolitan Law , History of International Law , Legal Philosophy , Positive LawPrint Facebook Twitter Email   RelatedDebating Cosmopolitan LawJudgment and diversity Historicizing a ClassicPREVIOUS POSTKlimabedingte Zwangsmigration: Ein Blick aus der Praxis NEXT POSTDebating Cosmopolitan Law Page 7 of 8Debating Cosmopolitan Law | Völkerrechtsblog20.09.2017https://voelkerrechtsblog.org/debating-cosmopolitan-law/1 CommentDEBATING COSMOPOLITAN LAW | VÖLKERRECHTSBLOG3 August, 2015 at 09:55 (Edit) — Reply[…] the first part of the conversation here where the two scholars discuss their approach to international law and Kant starts to explain his […]Leave a reply Logged in as ajv2016. 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Debating Cosmopolitan Law: An interview with Immanuel Kant and Georg Friedrich von Martens (Part I)

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Debating Cosmopolitan Law: An interview with Immanuel Kant and Georg Friedrich von Martens (Part I)

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