The Rights of Strangers

Theories of International Hospitality, the Global Community and Political Justice since Vitoria

Georg Cavallar

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351540964
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

This study investigates the thinking of European authors from Vitoria to Kant about political justice, the global community, and the rights of strangers as one special form of interaction among individuals of divergent societies, political communities, and cultures. Taking an interdisciplinary approach, it covers historical material from a predominantly philosophical perspective, interpreting authors who have tackled problems related to the rights of strangers under the heading of international hospitality. Their analyses of the civitas maxima or the societas humani generis covered the nature of the global commonwealth. Their doctrines of natural law (ius naturae) were supposed to provide what we nowadays call theories of political justice. The focus of the work is on international hospitality as part of the law of nations, on its scope and justification. It follows the political ideas of Francisco de Vitoria and the Second Scholastic in the 16th century, of Alberico Gentili, Hugo Grotius, Samuel Pufendorf, Christian Wolff, Emer de Vattel, Johann Jacob Moser, and Immanuel Kant. It draws attention to the international dimension of political thought in Thomas Hobbes, John Locke, Jean-Jacques Rousseau, David Hume, Adam Smith, and others. This is predominantly a study in intellectual history which contextualizes ideas, but also emphasizes their systematic relevance.

Chapter 1

The Present and the Past: Iustitia, Cosmopolis and Hospitalitas

One of the basic tenets of this study is that the historian’s, that is, my own, position and perspective is part of the historical investigation. Few would doubt this proposition. We usually disagree about the extent and the nature of this relationship. I leave matters open here and start with the field of research where my three topics are embedded. So the first section deals with issues of international ethics and law in contemporary debate, providing the framework for the following analysis. The second section outlines our present state of world politics, which is usually subsumed under the buzzword ‘globalization’. I distinguish these economic and cultural trends from this study’s intellectual framework, our current late modern and postmodern predicament in academic life, where certainties and standards of what constitute science are radically challenged. I will focus on basic issues, such as ethical relativism and pluralism. I argue that radical critiques are usually self-defeating and get us into argumentative circles. The third section anticipates possible criticism of this study. It might be argued that as a work in intellectual history, it does not, but should, keep history and philosophy apart. In addition, it may be criticized as an example of present-centered historiography, assuming an identity and continuity of thought or ideas that does not exist. The fourth section focuses on the search for minimal transcultural moral standards, and develops the idea of political justice as impartial and universal. The fifth section distinguishes among types of cosmopolitanism, especially between its thick and thin versions and between moral and institutional cosmopolitanism. It traces the roots of cosmopolitan thought back to the Greek Sophists and Stoics. It follows the evolution of the ideas of a global community (societas or magna communitas humani generis), of natural law (ius naturale or ius naturae), and of the complex ius gentium from classical antiquity into the late Middle Ages. I emphasize the understanding of ius gentium in Roman jurisprudence, the beginning of the Western legal tradition, and the concept of a Christian society. The sixth section offers a broad outline of European thought on issues of hospitality, trade, commerce and travelling, starting with Greek sources and covering the time until Vitoria. I argue that these topics have remained controversial since the very beginning.

1. Issues of international ethics and law

The question that binds hospitality, global commonwealth and political justice together can be formulated as: can we find normative principles that bind us all alike and together even if we do not agree on a substantive highest good? Recent years have witnessed a search for these principles, and a rising interest in issues of international ethics, global justice and cross-cultural normative theories. Publications were almost non-existent in the 1970s, rare in the 1980s, and boomed in the 1990s.¹ Authors have embarked on a quest for reliable ‘background theories’. Postmodernist theories have subsequently challenged this attempt and the search for reliable foundations. Most agree, however, that there is a growing number of pressing normative issues the global or international community (either seen as a fact, as fiction, or as a normative ideal) must face. A tentative list of questions relating to these issues would include:²

1 When are states entitled to go to war?

2 What are the rights and duties of states, of neutral parties, and of individuals in a war?

3 When is intervention in the domestic affairs of another state justified?

4 Is humanitarian intervention to protect human rights legitimate? Are there any universal human rights? If there are, which ones count?

5 Which kind of world society, international community, or international organization, is the best? Should we endorse some anarchical structure, a federation of sovereign states, or a world state with coercive authority?

6 Should we endorse and promote a global moral community of humankind, or our own community along ethnic, religious, or cultural lines?

7 When is secession justified?

8 What is the proper attitude of states in face of civil war, secession, or a war of national liberation in other countries?

9 What are appropriate rules of conduct for states when fighting against international terrorism?

10 How should states treat immigrants and refugees? Do states have a duty to admit aliens?

11 How should the resources of the world be distributed? Is redistribution necessary or justified? What should the economic fabric of world society be based on?

12 What should be done (and who should do it) to preserve the global ecology and ‘save the planet’?

In many of the questions, states are the main actors and in the foreground. This reflects the fact that our international system is still predominantly the Westphalian system of sovereign states, though arguably things have begun to change. The Peace of Westphalia (1648) is usually seen as the symbolic origin of the modern international society of sovereign and equal states where order is established by a balance of power. Legitimacy is conferred upon states according to principles such as meeting the requirements of being ‘civilized’. The society is ‘anarchical’ as there is no central authority defining and enforcing rules of conduct, but not necessarily ‘anarchic’ or chaotic. Voluntarily accepted rules and cooperation such as diplomacy and trade are designed to keep a precarious balance without sacrificing state freedom or sovereignty.³

I have grouped the questions in a way so that the more recent problems are listed towards the end. The first two questions go back to (at least) St Augustine and were dealt with in the Middle Ages under the heading of ius ad bellum and ius in bello. Michael Walzer’s excellent Just and Unjust Wars (1977) is conventional in this respect, as it addresses, above all, these two problems. Arguments about the legitimacy of war and warfare have prevailed since the rise of organized warfare, as Thucydides’ Melian Dialogue or the debate accompanying the Gulf War of 1991 demonstrate. The third question on intervention is closely linked with the Westphalian system, but has been dealt with before 1648, for instance, by Vitoria. He argues for a form of humanitarian intervention, an issue hotly debated in the 1990s. A world state has been endorsed by writers across the centuries, starting with the Greek Stoics. Favouring a global moral community of humankind, they also founded the cosmopolitan tradition in the West. Questions 7 and 8 are again typical for a world divided into separate states. International terrorism, immigration and refugees are very recent problems. There have been refugees in previous centuries, but the numbers of refugees in the twenty-first century is unprecedented. The problem of global distributive justice, of how the resources of the world should be distributed, originated at the end of European colonialism with the establishment of sovereign, but poor and underdeveloped, countries in the Third World. Our global economic system of free-market industrial capitalism is predominantly the result of the last two hundred years, and the cause of many of today’s ecological problems. Economic interdependence among states has increased dramatically since 1945, and attracted more attention, though some historians argue that interdependence itself is a much older phenomenon. Questions 5 and 6 on institutional and moral cosmopolitanism are one main focus of this book. Question 10 addresses one specific aspect of the more generic second issue of hospitality.

The list of questions shows that half of them have been dealt with in the past. In addition, many genuinely modern problems such as global distributive justice often lead us back to more basic and traditional ones, such as questions 5 and 6 about institutional and moral cosmopolitanism. This means that older authors can be of relevance today, especially in view of the fact that the more recent philosophical theory is not necessarily the better one.

2. Political and cultural contexts: Globalization, modern, postmodern and anti-postmodern confusions

One of the most important contexts for reading texts is clearly our own – a context that is misconstrued when it is seen in narrowly ‘presentist’ terms. (Dominick LaCapra, ‘Rethinking Intellectual History and Reading Texts’)

Intellectual historians emphasize that ideas must be contextualized. The nature of this context is a matter of debate, ranging from economic conditions to social, linguistic and cultural contexts (see the next section). Often, however, we forget to embed our own thinking. This section will try to do just that. It provides the cultural framework, focusing on the contemporary intellectual climate, above all in academic life, where books like this one are usually written. At the same time, this section prepares the ground for an analysis of the concept of political justice by introducing debates such as the one between universalists and relativists. The following section will continue the embedding of this study in our present (Western) culture.

Most contemporary analysts agree with the claim that ‘[t]he international community is at a crossroads.’⁴ They disagree whether the current global trends are merely ephemeral or signify a real structural change of world politics. Globalists refer to phenomena like the changing role of the UN, increasing economic interaction and ensuing interdependence, which might trigger cultural and/or political integration (often labelled ‘globalization’). They point at the successful story of Western European integration, and the fact that many ecological problems which cross borders can no longer be solved by the traditional national state. They provide long lists of non-governmental organizations (NGOs), transnational or multinational corporations, and intergovernmental organizations and their activities. They suggest that the revolutions in information technology have helped in the formation or expansion of ‘international public opinion’ or a ‘global civil society’.⁵ Processes of democratization and globalization are said to undermine the the classic concept of the state and the ‘Westphalian Model of World Order’, the predominantly anarchic system of sovereign states which do not recognize a common coercive authority.⁶ The new problems, above all in ecological and economic matters, transcend political boundaries and thus urge states to find solutions together. The traditional concept of security, focused on the military dimension, has in turn been revised and expanded. Transnational problems pose yet another challenge to the concept of the nation-state as a fairly autarchic, independent unit.⁷ Some analysts argue that a global, interdependent civil society has developed, structured horizontally as well as vertically: the network of relations among states intensify, coupled with the process of democratization. Civil society is defined as ‘the space of uncoerced human association and also the set of relational networks … that fill this space’.⁸ It is usually assumed that this space is located between the economy, the government and its bureaucracy on the one hand, and the private sphere of family and intimacy on the other. Filled with enthusiasm about a global civil society, some authors assume that it challenges ‘from below’ the modern territorial state’s claim to exclusive sovereignty. At the same time, this state often must delegate political authority to supranational, regional, or global organizations and institutions.⁹

Certain international lawyers with a philosophic bent, among them Jost Delbrück, have spotted a ‘new consciousness’ about the role and importance of international law concerning a peaceful world order.¹⁰ It has been claimed that contemporary international law is changing in five areas: security council resolutions and activities have undermined the nonintervention principle of the UN Charter (art. 2, para. 7); this is related to a subsequent reliance on ‘humanitarian intervention,’ and a questioning of traditional state sovereignty; similarly challenged is the principle of self-determination of peoples (art. 1, para. 2), for some a dangerous and outmoded right to self-destruction.¹¹ The security council has repeatedly extended the prohibition to use force (art. 2, para. 4) to domestic affairs. Finally, it might be asked whether ongoing changes transform international law in qualitative terms, turning it from a law among states into a kind of global domestic law.¹² Usually all analyses are followed by cautionary remarks, reminding the reader that there is change, but trends may be reverted, or less profound than assumed. For instance, it is pointed out that the states are still sovereign, even though they may have delegated some of their authority or sovereignty.

Common reactions to the apparently changing global situation are calls for a new kind of (international) morality or ethics, an urge to find or establish new norms of conduct or institutions, to promote global distributive justice, or provide a sound philosophical basis reflecting the new situation. The Club of Rome specified our tasks in times of the ‘first global revolution’: ‘Our aim must be essentially normative: to visualize the sort of world we would like to live in, to evaluate the resources – material, human and moral – to make our vision realistic and sustainable.’¹³ In a similar vein, philosopher Martha Nussbaum has pointed out that a concept of justice that can be called cross-cultural is urgently needed: ‘Especially in light of the increasing interaction among diverse societies and the frequency of communications, cross-cultural debate about questions of justice is both possible and actual.’ She holds that many problems have nowadays turned into international, global challenges and require a common effort. The theologian Hans Küng has made the related claim ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Foreword
• Introduction
• CHAPTER ONE: The Present and the Past: Iustitia, Cosmopolis and Hospitalitas
• CHAPTER TWO: Vitoria and the Second Scholastic
• CHAPTER THREE: The Age of Hugo Grotius
• CHAPTER FOUR: In the Shadow of Leviathan: Hobbes to Wolff
• CHAPTER FIVE: The Age of Enlightenment
• CHAPTER SIX: Kant and the lus Cosmopoliticum
• Conclusion
• Selected Bibliography
• Index