Cosmopolitan law's two classes of subjects: the example of European Union law

Cosmopolitan law’s two classes of subjects: the example of European Union law Bertjan Wolthuis Vrije Universiteit Amsterdam Kant appears to stress two aspects of cosmopolitanism: that it is a matter of law (Rechtslehre, par. 62) and also that this law applies to the relation between a state and a person (Rechtslehre, par. 43; Zum ewigen Frieden, 349). Cosmopolitan law is the third part of public law according to Kant; and he bases the distinction between state law, international law and cosmopolitan law on the type of relation that has to be brought under public law: the relation between persons (state law), between states (international law) or between a state and a person not subject to that state (cosmopolitan law). With respect to the three types of relations, Kant develops natural rights and duties that the parties in question have towards each other. These parties are horizontally related to each other. To bring their relations under law, a vertical element has to be created: institutions that promulgate and apply legal provisions that earlier were only natural. However, only in the case of cosmopolitan law, the parties are clearly different: one side is the state, the other a foreign person. This raises questions about cosmopolitan law, for instance: whether a horizontal relation is possible between the two classes and how such a relation can be brought under positive law. Within Kantian legal theory, there has so far been discussion about the basis of cosmopolitan law (Huber 2017) and about whether cosmopolitan law can or should be promulgated (Ripstein 2021; Niesen 2021), and if so, how that can be done in a legitimate way. In this paper, I want to research a so far less examined issue: how legitimate positive cosmopolitan law is possible between two distinct classes of subjects: states and persons. I want to answer that question by taking as an example European Union law, or more specifically, European Union free movement law, since its provisions appear to constitute a body of positive cosmopolitan law in Kant’s sense (Ferry 2009; Wolthuis & Corrias 2021): EU member state nationals enjoy far-reaching cosmopolitan rights in foreign EU member states. My plan is to confront Kant’s theory of cosmopolitan law with a contemporary case of positive cosmopolitan law and in this way to shed light on the problem of the two classes of subjects of cosmopolitan law. References: J.-M. Ferry, ‘European Integration and the Cosmopolitan Way’, in: M. Telò (ed.), The European Union and Global Governance, Routledge 2009. J. Huber, ‘Cosmopolitanism for Earth Dwellers: Kant on the Right to Be Somewhere’, Kantian Review 22 (1): 1-23. P. Niesen, ‘Vulnerability, Space and Communication: Three Conditions of Adequacy for Cosmopolitan Right’ in: E. Herlin-Karnell and E. Rossi (eds.), The Public Uses of Coercion and Force, Oxford University Press 2021. A. Ripstein, ‘From Constitutionalism to War—And Back Again: a Reply’ in: idem. B. Wolthuis and L. Corrias, ‘Europe’s Cosmopolitan Union’ in: idem.