The Rights of Others: Aliens, Residents, Citizens - 2004 PDF

This page intentionally left blank The Rights of Others The Rights of Others examines the boundaries of political community by focusing on political membership – the principles and practices for incorporating aliens and strangers, immigrants and newcomers, refugees and asylum seekers, into existing polities. Boundaries define some as members, others as aliens. But when state sovereignty is becoming frayed, and national citizenship is unraveling, definitions of political membership become much less clear. Indeed, few issues in world politics today are more important, or more troubling. In her Seeley Lectures, the distinguished political theorist Seyla Benhabib makes a powerful plea, echoing Immanuel Kant, for moral universalism and cosmopolitan federalism. She advocates not open but porous boundaries, recognizing not only the admittance rights of refugees and asylum seekers, but also the regulatory rights of democracies. The Rights of Others is a major intervention in contemporary political theory, of interest to large numbers of students and specialists in politics, law, philosophy, and international relations. seyla benhabib is one of the leading political theorists in the world today and Eugene Meyer Professor of Political Science and Philosophy at Yale University. The John Robert Seeley Lectures have been established by the University of Cambridge as a biennial lecture series in social and political studies, sponsored jointly by the Faculty of History and Cambridge University Press. The Seeley Lectures provide a unique forum for distinguished scholars of international reputation to address, in an accessible manner, themes of broad and topical interest in social and political studies. Subsequent to their public delivery in Cambridge the University Press publishes suitably modified versions of each sets of lectures. Professor James Tully delivered the inaugural series of Seeley Lectures in 1994 on the theme of Constitutionalism in an Age of Diversity. The Seeley Lectures include (1) Strange Multiplicity: Constitutionalism in an Age of Diversity james tully isbn 0 521 47117 6 (hardback) 0 521 47694 1 (paperback) (2) The Dignity of Legislation jeremy waldron isbn 0 521 65092 5 (hardback) 0 521 65883 7 (paperback) (3) Woman and Human Development: The Capabilities Approach martha nussbaum isbn 0 521 66086 6 (hardback) (4) Value, Respect and Attachment joseph raz isbn 0 521 80180 x (hardback) 0 521 00022 x (paperback) (5) The Rights of Others: Aliens, Residents, and Citizens seyla benhabib isbn 0 521 83134 2 (hardback) 0 521 53860 2 (paperback) THE RIGHTS OF OTHERS Aliens, Residents, and Citizens SEYLA BENHABIB Yale University CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521831345 © Seyla Benhabib 2004 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2004 ISBN-13 978-0-511-26455-9 eBook (EBL) ISBN-10 0-511-26455-0 eBook (EBL) ISBN-13 978-0-521-83134-5 hardback ISBN-10 0-521-83134-2 hardback ISBN-13 978-0-521-53860-2 paperback ISBN-10 0-521-53860-2 paperback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. “No human is illegal” Immigrant Workers’ Freedom Ride 2003 October 4, 2003 Queens, New York Contents Acknowledgments [x] Introduction 1 On hospitality: rereading Kant’s cosmopolitan right 2 “The right to have rights”: Hannah Arendt on the contradictions of the nation-state 3 The Law of Peoples, distributive justice, and migrations 4 Transformations of citizenship: the European Union 5 Democratic iterations: the local, the national, and the global Conclusion: cosmopolitan federalism Bibliography Index ix acknowledgments This book presents the revised and expanded version of the John Robert Seeley Lectures, delivered at the invitation of the University of Cambridge in King’s College on April 27–May 2, 2002. I thank Gareth Stedman Jones and Miri Rubin for their generous hospitality during this period. Special thanks go to Quentin Skinner under whose auspices I was first invited to deliver them. Susan James, Istvan Hont, Onora O’Neill, John Dunn, Richard Tuck, Emma Rothschild, Amartya Sen, and Andrew Kuper enriched my stay in Cambridge through their questions and comments. Among the many occasions on which I presented the ideas gathered in this volume, the discussion at the Yale Law School’s Legal Theory Colloquium in February 2002 was one of the most memorable. My thanks to Dean Anthony Kronman, who presided, and to my colleagues Bruce Ackerman, Owen Fiss, Paul Kahn, Judith Resnik, and Reva Siegel for subsequent conversations and remarks. I am partic- ularly grateful to Judith Resnik for supplying me with pertinent international law references. My colleagues at the University of Toronto, Joseph Carens, Melissa Williams, Audrey Macklin, and Jennifer Nedel- sky, heard me present some of this material under the auspices of the Priestley lectureship in October 2003. I am grateful to them for their incisive comments. x acknowledgments For their questions and reflections on Kant, Arendt, and the European Union, I also thank Veit Bader, Rainer Bauboeck, Jay Bernstein, Richard J. Bernstein, James Bohman, Nancy Fraser, Morris Kaplan, Riva Kastoryano, John McCormick, Max Pensky, Ulrich Preuss, and Sayres Rudy. I am particularly grateful to Carolin Emcke for her thoughts on chapters 3 and 5, and to Nancy Kokaz for her spirited defense of Rawls against my criticisms. Special thanks go to Willem Maas for many conversations on citizenship within the European Union, and in particular for his help with chapter 4. Melvin Rogers was an indispensable assistant in preparing the bib- liography and helping me with references throughout. David Leslie provided crucial copyediting assistance in the final stages of this book. A special word of gratitude is due to my family, my daughter, Laura and my husband, Jim Sleeper, who have accompanied me from Boston to Amsterdam, to London, to Istanbul, and to Connecticut, as this book took shape over many voyages, border crossings, and passport controls. Parts of chapter 1 have previously appeared as “Of Guests, Aliens and Citizens: Rereading Kant’s Cosmopolitan Right,” in Pluralism and the Pragmatic Turn: The Transforma- tion of Critical Theory. Essays in Honor of Thomas McCarthy ed. by William Rehg and James Bohman (Cambridge, MA: MIT Press, 2001). Chapter 2 has been published in part as “Political Geographies in a Changing World: Arendtian Reflections,” Social Research, 69 (2) (Summer 2002): 539–556; material from chapter 4 is included in “Transformations of Citizenship: The Case of Contemporary Europe,” Government and Opposition, xi acknowledgments 37 (4) (Fall 2002): 439–465. My Seeley Lectures expand, revise, and continue reflections which I initiated in my Spinoza Lectures under the title Transformations of Citizenship: Dilem- mas of the Nation-State in the Era of Globalization (Amsterdam: Van Gorcum, 2001), copyright Seyla Benhabib. Finally, many thanks to Richard Fisher, Karen Ander- son Howes, and Alison Powell of Cambridge University Press. It was a pleasure to work with them. xii introduction This book examines the boundaries of political community by focusing on political membership. By political membership, I mean the principles and practices for incorporating aliens and strangers, immigrants and newcomers, refugees and asy- lum seekers, into existing polities. Political boundaries define some as members, others as aliens. Membership, in turn, is meaningful only when accompanied by rituals of entry, access, belonging, and privilege. The modern nation-state system has regulated membership in terms of one principal category: national citizenship. We have entered an era when state sovereignty has been frayed and the institution of national citizenship has been disaggregated or unbundled into diverse elements. New modalities of membership have emerged, with the result that the boundaries of the political community, as defined by the nation-state system, are no longer adequate to regulate membership. Political membership has rarely been considered an important aspect of domestic or international justice. Along with the “invisibility” of state boundaries, the practices and institutions regulating access to and exit from political mem- bership have also been invisible and not subject to theoretical scrutiny and analysis. I want to argue that transnational migra- tions, and the constitutional as well as policy issues suggested by the movement of peoples across state borders, are central 1 the rights of others to interstate relations and therefore to a normative theory of global justice. Recent attempts to develop theories of international and global justice have been curiously silent on the matter of migration (see Pogge 1992; Buchanan 2000; Beitz 1999 and 2000). Despite their criticism of state-centric assump- tions, these theorists have not questioned the fundamen- tal cornerstone of state centrism, which is the policing and protecting of state boundaries against foreigners and intrud- ers, refugees and asylum seekers. The control of migration – of immigration as well as emigration – is crucial to state sovereignty. All pleas to develop “post-Westphalian” concep- tions of sovereignty (Buchanan 2000 and 2001) are ineffective if they do not also address the normative regulation of peoples’ movement across territorial boundaries. From a philosophi- cal point of view, transnational migrations bring to the fore the constitutive dilemma at the heart of liberal democracies: between sovereign self-determination claims on the one hand and adherence to universal human rights principles on the other. I will argue that practices of political membership are best illuminated through an internal reconstruction of these dual commitments. There is not only a tension, but often an outright contradiction, between human rights declarations and states’ sovereign claims to control their borders as well as to monitor the quality and quantity of admittees. There are no easy solu- tions to the dilemmas posed by these dual commitments. I will not call for the end of the state system nor for world citizenship. Rather, following the Kantian tradition of cosmopolitan feder- alism, I will underscore the significance of membership within 2 introduction bounded communities and defend the need for “democratic attachments” that may not be directed toward existing nation- state structures alone. Quite to the contrary: as the institution of citizenship is disaggregated (see ch. 4) and state sovereignty comes under increasing stress, subnational as well as supra- national spaces for democratic attachments and agency are emerging in the contemporary world, and they ought to be advanced with, rather than in lieu of, existing polities. It is important to respect the claims of diverse democratic commu- nities, including their distinctive cultural, legal, and constitu- tional self-understandings, while strengthening their commit- ments to emerging norms of cosmopolitical justice. My position differs from recent neo-Kantian theories of international justice which give precedence to matters of distribution of resources and rights over questions of mem- bership. I argue that a cosmopolitan theory of justice cannot be restricted to schemes of just distribution on a global scale, but must also incorporate a vision of just membership. Such just membership entails: recognizing the moral claim of refugees and asylees to first admittance; a regime of porous borders for immigrants; an injunction against denationalization and the loss of citizenship rights; and the vindication of the right of every human being “to have rights,” that is, to be a legal person, entitled to certain inalienable rights, regardless of the status of their political membership. The status of alienage ought not to denude one of fundamental rights. Furthermore, just member- ship also entails the right to citizenship on the part of the alien who has fulfilled certain conditions. Permanent alienage is not only incompatible with a liberal-democratic understanding of human community; it is also a violation of fundamental human 3 the rights of others rights. The right to political membership must be accommo- dated by practices that are non-discriminatory in scope, trans- parent in formulation and execution, and justiciable when violated by states and other state-like organs. The doctrine of state sovereignty, which has so far shielded naturaliza- tion, citizenship, and denationalization decisions from scrutiny by international as well as constitutional courts, must be challenged. Crisis of territoriality Questions of political boundaries and membership have become particularly salient because the Westphalian model of state sovereignty is in crisis for many reasons.1 The “Westphalian model” presupposes that there is a dominant and unified political authority whose jurisdiction over a clearly marked piece of territory is supreme. This model’s efficacy and normative relevance are being challenged by the rise of a global economy through the formation of free markets in capital, finance, and labor; the increasing internationaliza- tion of armament, communication, and information tech- nologies; the emergence of international and transnational cultural networks and electronic spheres; and the growth of sub- and transnational political actors. Globalization draws the administrative-material functions of the state into increas- ingly volatile contexts that far exceed any one state’s capacities to influence decisions and outcomes. The nation-state is too small to deal with the economic, ecological, immunological, 1 Stephen Krasner (1999) has expressed skepticism about the historical dominance of this model, but I believe that its normative force in ordering interstate relations is not equally in question. 4 introduction and informational problems created by the new environment; yet it is too large to accommodate the aspirations of identity- driven social and regionalist movements. Under these condi- tions, territoriality has become an anachronistic delimitation of material functions and cultural identities; yet, even in the face of the collapse of traditional concepts of sovereignty, monopoly over territory is exercised through immigration and citizenship policies. It is estimated that, whereas in 1910 roughly 33 million individuals lived in countries other than their own as migrants, by the year 2000 that number had reached 175 million. During this same period (1910–2000), the population of the world is estimated to have grown from 1.6 to 5.3 billion, that is three- fold (Zlotnik 2001, 227). Migrations, by contrast, increased almost sixfold over the course of these ninety years. Strikingly, more than half of the increase of migrants from 1910 to 2000 occurred in the last three and a half decades of the twentieth century, between 1965 and 2000. In this period 75 million peo- ple undertook crossborder movements to settle in countries other than that of their origin (United Nations, Department of Economic and Social Affairs 2002). While migratory movements in the latter half of the twentieth century have accelerated, the plight of refugees has also grown. There are almost 20 million refugees, asylum seekers, and “internally displaced persons” in the world. The resource-rich countries of Europe and the northern hemi- sphere face a growing number of migrants, but it is mostly nations in the southern hemisphere, such as Chad, Pakistan, and Ingushetia, that are home to hundreds of thousands of refugees fleeing wars in the neighboring countries of the 5 the rights of others Central African Republic, Afghanistan, and Chechnya (Rieff 2003). As one thoughtful student of worldwide immigra- tion trends has observed, “Over the past one hundred years, international migration has often been at the center stage of major events that reshaped the world. The twentieth century began with a decade in which transatlantic migration reached unprecedented levels and it has closed with one in which migration from developing to developed countries and from Eastern bloc countries to the West has been at a high” (Zlotnik 2001, 257). To acknowledge such trends need not commit one to exaggerated claims about the “end” of the state system. The irony of current political developments is that, while state sovereignty in economic, military, and technological domains has been greatly eroded, it is nonetheless vigorously asserted, and national borders, while more porous, are still there to keep out aliens and intruders. The old political structures may have waned but the new political forms of globalization are not yet in sight. We are like travelers navigating an unknown terrain with the help of old maps, drawn at a different time and in response to different needs. While the terrain we are traveling on, the world society of states, has changed, our normative map has not. I do not pretend to have a new map to replace the old one, but I do hope to contribute to a better understanding of the salient fault-lines of the unknown territory which we are traversing. The growing normative incongruities between international human rights norms, particularly as they pertain to the “rights of others” – immigrants, refugees, and asylum 6 introduction seekers – and assertions of territorial sovereignty are the novel features of this new landscape. An international human rights regime The period since the Universal Declaration of Human Rights of 1948 has witnessed the emergence of international human rights norms. Crossborder movements of peoples, and particularly those of refugees and asylees, are now sub- ject to an international human rights regime.2 By an interna- tional human rights regime, I understand a set of interrelated and overlapping global and regional regimes that encompass human rights treaties as well as customary international law or international “soft law” (an expression used to describe inter- national agreements which are not treaties and therefore are not covered by the Vienna Convention on the Law of Treaties) (Neuman, 2003). 2 Examples would include the UN treaty bodies under the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of the Child (Neuman 2003). The establishment of the European Union has been accompanied by a Charter of Fundamental Rights and by the formation of a European Court of Justice. The European Convention for the Protection of Human Rights and Fundamental Freedoms, which encompasses states that are not EU members as well, permits the claims of citizens of adhering states to be heard by a European Court of Human Rights. Parallel developments can be seen on the American continent through the establishment of the Inter-American System for the Protection of Human Rights and the Inter-American Court of Human Rights (Jacobson 1997, 75). 7 the rights of others We are witnessing this development in at least three interrelated areas. Crimes against humanity, genocide, and war crimes The concept of crimes against humanity, first articu- lated by the Allied powers in the Nuremberg trials of Nazi war criminals, stipulates that there are certain norms in accor- dance with which state officials as well as private individuals are to treat one another, even, and precisely, under conditions of extreme hostility and war. Ethnic cleansing, mass execu- tions, rape, and cruel and unusual punishment of the enemy, such as dismemberment, which occur under conditions of a “widespread or systematic attack,” are proscribed, and all can constitute sufficient grounds for the indictment and prosecu- tion of individuals who are responsible for these actions, even if they are or were state officials, or subordinates who acted under orders. The refrain of the soldier and the bureaucrat – “I was only doing my duty” – is no longer an acceptable ground for abrogating the rights of humanity in the person of the other – even when, and especially when, the other is your enemy. The continuing rearticulation of these categories in international law, and in particular their extension from sit- uations of international armed conflict to civil wars within a country and to the actions of governments against their own people, has in turn encouraged the emergence of the concept of “humanitarian interventions.”3 3 During the Nuremberg trials, “crimes against humanity” was used to refer to crimes committed during international armed conflicts. (United Nations 1945, Art. 6 [c]; see Ratner and Abrams 2002, 26–45; 8 introduction Humanitarian interventions The theory and practice of humanitarian interven- tions, which the USA and its NATO allies appealed to in order to justify their actions against ethnic cleansing and continuing crimes against the civilian population in Bosnia and Kosovo, suggest that, when a sovereign nation-state egregiously vio- lates the basic human rights of a segment of its population Schabas 2001, 6–7). Immediately after the Nuremberg trials, genocide was also included as a crime against humanity but was left distinct, due its own jurisdictional status which was codified in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (1948). Genocide is the knowing and willful destruction of the way of life and existence of a collectivity whether through acts of total war, racial extinction, or ethnic cleansing. It is the supreme crime against humanity, in that it aims at the destruction of human variety, of the many and diverse ways of being human. Genocide not only eliminates individuals who may belong to this or another group; it aims at the extinction of their way of life – the intent requirement (Ratner and Abrams 2002, 35–36). War crimes, by contrast, as defined in the Statute of the International Criminal Tribunal for the Former Yugoslavia (United Nations 1993), initially only applied to international conflicts. With the Statute of the International Criminal Tribunal for Rwanda (United Nations 1994), recognition was extended to internal armed conflict as well. “War crimes” now refer to international as well as internal conflicts that involve the mistreatment or abuse of civilians and non-combatants as well as one’s enemy in combat (Ratner and Abrams 2002, 80–110; Schabas 2001, 40–53). Thus, in a significant development since World War II, crimes against humanity, genocide, and war crimes have all been extended to apply not only to atrocities that take place in international conflict situations, but also to events within the borders of a sovereign country and that may be perpetrated by officials of that country and/or by its citizens during peacetime. I wish to thank Melvin Rogers for his special assistance in clarifying these concepts and developments in international law. 9 the rights of others on account of their religion, race, ethnicity, language, and cul- ture, there is a generalized moral obligation to end actions such as genocide and crimes against humanity (Buchanan 2001). In such cases human rights norms trump state sovereignty claims. No matter how controversial in interpretation and applica- tion they may be, humanitarian interventions are based on the growing consensus that the sovereignty of the state to dis- pose over the life, liberty, and property of its citizens or res- idents is neither unconditional nor unlimited (Doyle 2001). State sovereignty is no longer the ultimate arbiter of the fate of citizens or residents. The exercise of state sovereignty even within domestic borders is increasingly subject to internation- ally recognized norms which prohibit genocide, ethnocide, mass expulsions, enslavement, rape, and forced labor. Transnational migration The third area in which international human rights norms are creating binding guidelines upon the will of sovereign nation-states is that of international migration. Humanitarian interventions deal with the treatment by nation- states of their citizens or residents; crimes against humanity and war crimes concern relations among enemies or oppo- nents in nationally bounded as well as extra-territorial settings. Transnational migrations, by contrast, pertain to the rights of individuals, not insofar as they are considered members of concrete bounded communities but insofar as they are human beings simpliciter, when they come into contact with, seek entry into, or want to become members of territorially bounded communities. 10 introduction The Universal Declaration of Human Rights (United Nations 1948) recognizes the right to freedom of movement across boundaries: a right to emigrate – that is, to leave a country – but not a right to immigrate – a right to enter a country (Article 13). Article 14 anchors the right to enjoy asylum under certain circumstances, while Article 1 of the Declaration proclaims that everyone has “the right to a nationality.” The second half of Article 15 stipulates that “No one shall be arbi- trarily deprived of his nationality nor denied the right to change his nationality” (www.unhchr.ch/udhr/lang/eng.htm). The Universal Declaration is silent on states’ obliga- tions to grant entry to immigrants, to uphold the right of asy- lum, and to permit citizenship to alien residents and denizens. These rights have no specific addressees and they do not appear to anchor specific obligations on the part of second and third parties to comply with them. Despite the crossborder char- acter of these rights, the Declaration upholds the sovereignty of individual states. Thus a series of internal contradictions between universal human rights and territorial sovereignty are built into the logic of the most comprehensive international law documents in our world. The Geneva Convention of 1951 Relating to the Status of Refugees and its Protocol added in 1967 are the second most important international legal documents governing cross- border movements. Nevertheless, neither the existence of these documents nor the creation of the United Nations High Com- missioner on Refugees have altered the fact that this Conven- tion and its Protocol are binding on signatory states alone and can be brazenly disregarded by non-signatories and, at times, even by signatory states themselves. 11 the rights of others Some lament the fact that, as international human rights norms are increasingly invoked in immigration, refugee, and asylum disputes, territorially delimited nations are chal- lenged not only in their claims to control their borders but also in their prerogative to define the “boundaries of the national community” (Jacobson 1997, 5). Others criticize the Univer- sal Declaration for not endorsing “institutional cosmopoli- tanism,” and for upholding an “interstatal” rather than a truly cosmopolitan international order (O’Neill 2000, 180). Yet one thing is clear: the treatment by states of citizens and residents within their boundaries is no longer an unchecked prerogative. One of the cornerstones of Westphalian sovereignty, namely that states enjoy ultimate authority over all objects and subjects within their circumscribed territory, has been delegitimized through international law. What then should be guiding normative principles of membership in a world of increasingly deterritorialized politics? Which practices and principles of civil and politi- cal incorporation are most compatible with the philosophical self-understanding and constitutional commitments of liberal democracies? These are the principal questions that I address by exploring the philosophical as well as institutional aspects of political membership in liberal democracies. Discourse theory and political membership I approach political membership from the standpoint of discourse ethics and a normative theory of deliberative democracy (see Benhabib 1992; 2003; 2002a). Member- ship and attendant questions of inclusion and exclusion have 12 introduction been vexing for discourse theory since its inception. The basic premise of discourse ethics states that “only those norms and normative institutional arrangements are valid which can be agreed to by all concerned under special argumentation situa- tions named discourses” (see Habermas 1990; Benhabib 1992, 29–67; 2002a, 107–114). I call this principle a metanorm, in that more specific norms that can be deemed valid need to be tested through procedures that can meet this criterion. In my interpretation, this metanorm presupposes the principles of universal moral respect and egalitarian reciprocity. Universal respect means that we recognize the rights of all beings capable of speech and action to be participants in the moral conversa- tion; the principle of egalitarian reciprocity, interpreted within the confines of discourse ethics, stipulates that in discourses each should have the same rights to various speech acts, to initiate new topics, and to ask for justification of the presup- positions of the conversations. Within discourse ethics, the problem of scope, the ques- tion of who ought to be included or not in discourses, has always posed a difficulty. On first reading the theory seems to exclude from moral agency and moral representation those who are not capable of full speech and action. Depending on how strongly “the capacity for speech and action” is defined, many beings whom we would want to recognize as moral agents and as moral victims, such as very young children, the differently abled, and the mentally ill, would seem to be excluded from the moral conversation. Furthermore, there may be beings to whom we owe moral obligations and who may become moral victims by virtue of being impacted by our actions but who cannot represent themselves: sentient beings capable of pain, 13 the rights of others such as animals with developed nervous systems and, some would argue, even trees and ecosystems, are alive and can be affected by our actions. Can discourse ethics do justice to their moral claims and to their moral plight? I have suggested in other contexts that the moral interests of beings who are not full participants in moral discourses ought to be and can be effectively represented in discursive contexts through systems of moral advocacy (Benhabib 1992, 58 n. 30; 2002a, 190–191, n. 7). Considered with respect to political membership claims, the problem of discursive scope poses a different set of difficulties. Since discourse theory articulates a universalist moral standpoint, it cannot limit the scope of the moral con- versation only to those who reside within nationally recognized boundaries; it must view the moral conversation as potentially extending to all of humanity. Put starkly, every person, and every moral agent who has interests and whom my actions and the consequences of my actions can impact and affect in some manner or another, is potentially a moral-conversation part- ner with me: I have a moral obligation to justify my actions with reasons to this individual or to the representatives of this being. I respect the moral worth of the other by recognizing that I must provide them with a justification for my actions. We are all potential participants in such conversations of justifica- tion. The stipulations of discourse ethics, therefore, cannot be extended into the domain of political membership without the aid of further normative elaboration, nor is it necessary to do so. A discursive approach should place significant limitations on what can count as morally permissible practices of inclusion and exclusion within sovereign polities. 14 introduction Due to the open-endedness of discourses of moral justification there will be an inevitable and necessary tension between moral obligations and duties resulting from our mem- bership in bounded communities and the moral perspective which we must adopt as human beings simpliciter. From a uni- versalist and cosmopolitan point of view, boundaries, includ- ing state borders and frontiers, require justification. Practices of inclusion and exclusion are always subject to questioning from the standpoint of the infinitely open moral conversation. This confronts the discourse theorist who is examin- ing political-membership practices with a dilemma: a shared feature of all norms of membership, including but not only norms of citizenship, is that those who are affected by the con- sequences of these norms and, in the first place, by criteria of exclusion, per definitionem, cannot be party to their articula- tion. Membership norms affect those who are not members precisely by distinguishing insiders from outsiders, citizens from non-citizens. The dilemma is this: either a discourse theory is simply irrelevant to membership practices in that it cannot articulate any justifiable criteria of exclusion, or it simply accepts existing practices of exclusion as morally neu- tral historical contingencies that require no further validation. But this would suggest that a discourse theory of democracy is itself chimerical insofar as democracy would seem to require a morally justifiable closure which discourse ethics cannot deliver. Unlike communitarians who reduce the demands of morality to the claims of specific ethical, cultural, and political communities, and unlike realists and postmodernists who are skeptical that political norms can ever be made subordinate 15 the rights of others to moral ones, the discourse ethicist insists upon the necessary disjunction as well as the necessary mediation between the moral and the ethical, the moral and the political. The task for her is one of mediations, not reductions. How can one mediate moral universalism with ethical particularism? How can one mediate legal and political norms with moral ones? Questions of membership confront us continuously with such challenges of mediation: if we do not differentiate between the moral and the ethical, we cannot criticize the exclusionary citizenship and membership practices of specific cultural, religious, and ethnic communities. And if we do not differentiate between morality and legality, we cannot criticize the legally enacted norms of democratic majorities even if they refuse to admit refugees to their midst, turn away asylum seekers at the door, and shut off their borders to immigrants. Finally, if we do not differen- tiate between morality and functionality, we cannot challenge practices of immigration, naturalization, and border control for violating our cherished moral, constitutional, and ethical beliefs. Our fate, as late-modern individuals, is to live caught in the permanent tug of war between the vision of the univer- sal and the attachments of the particular. In a “disenchanted universe,” in Weber’s sense, competing values clamor for our allegiance (Weber 1958, 147–156). Although for Weber this condition meant an unavoidable and inevitable polythe- ism of values, for me it suggests the bad faith of all attempts which try to simplify the field of moral tension by eliminating important aspects of our multiple and conflicting allegiances. Just as we cannot cease to mediate the needs of our loved ones with the demands of impersonal, institutional obligations; just 16 introduction as we cannot cease to measure the actions of our polities in light of the claims of strangers; just as we cannot cease to par- ticipate in dialogues with those who worship different gods than ourselves, so too we cannot collapse the moral universal into the particular, the legal, or the functional. Can there be a discourse-theoretical justification of democratic closure, then? This book answers that there are some practices of democratic closure which are more justifi- able than others but that potentially all practices of democratic closure are open to challenge, resignification, and deinstitu- tionalization. The project of postnational solidarity is a moral project that transcends existing state boundaries, and nowhere are the tensions between the demands of postnational uni- versalistic solidarity and the practices of exclusive member- ship more apparent than at the site of territorial borders and boundaries. In “The European Nation-State,” Jürgen Habermas has observed: There is a conceptual gap in the legal construction of the constitutional state, a gap that is tempting to fill with a naturalistic conception of the people. One cannot explain in purely normative terms how the universe of those who come together to regulate their common life by means of positive law should be composed. From a normative point of view, the social boundaries of an association of free and equal associates under law are perfectly contingent. (1998, 115–116) Since the nineteenth century, and extending to the state formations that emerged after decolonization and the end of 17 the rights of others communism, this “conceptual gap” has been filled by the ide- ology and practice of nationalism. Citizenship and practices of political membership are the rituals through which the nation is reproduced spatially. The control of territorial boundaries, which is coeval with the sovereignty of the modern nation- state, seeks to ensure the purity of the nation in time through the policing of its contacts and interactions in space. The his- tory of citizenship reveals that these nationalist aspirations are ideologies; they attempt to mold a complex, unruly, and unwieldy reality according to some simple governing princi- ple of reduction, such as national membership. Every nation has its others, within and without (see Benhabib 2002a). In fact, nationalism is constituted through a series of imaginary as well as very real demarcations between us and them, we and the others. Through membership practices the state controls the synchronic and diachronic identity of the nation. Yet the nationality and citizenship rules of all peoples are an admix- ture of historical contingencies, territorial struggles, cultural clashes, and bureaucratic fiat. At certain historical junctures, these rules and the struggles surrounding them become more transparent and visible than at other times. We are at such a historical juncture when the problem of political boundaries has once more become visible. Nationalism offers one solution to the “conceptual gap in the legal construction of the constitutional state.” Democratic perspectives, whether liberal, republican, or multi- cultural offer yet another. But how can we justify the legal construction of the constitutional state? I will follow Habermas in accepting that universal human rights and popular sovereignty, or the norms of private and public autonomy, 18 introduction provide two indispensable foundations of the democratic con- stitutional state (Habermas 1996, 84–104). Universal human rights have a context-transcending appeal, whereas popular and democratic sovereignty must constitute a circumscribed demos which acts to govern itself. Self-governance implies self-constitution. There is thus an irresolvable contradiction, maybe even a “fatal tension” (Cole 2000, 2), between the expansive and inclusionary principles of moral and politi- cal universalism, as anchored in universal human rights, and the particularistic and exclusionary conceptions of democratic closure. Carl Schmitt, therefore, argued that liberalism, the belief in universal moral equality, and democracy, the belief in citizens’ equality, were necessarily incompatible (Schmitt 1985). Yet modern constitutional democracies are based upon the faith that these two commitments can be used to limit one another, that they can be renegotiated, rearticulated, and resignified. I develop the concept of “democratic iterations” to show how commitments to context-transcending constitu- tional and international norms can be mediated with the will of democratic majorities. Democratic iterations are complex pro- cesses of public argument, deliberation, and learning through which universalist right claims are contested and contextual- ized, invoked and revoked, throughout legal and political insti- tutions as well as in the public sphere of liberal democracies. Democratic iterations not only change established understandings in a polity but they also transform author- itative precedents. I view democratic iterations as engaging in “jurisgenerative politics” (Cover 1983; Michelman 1988). Through such processes the democratic people shows itself 19 the rights of others to be not only the subject but also the author of its laws. The politics of membership, precisely because it bears upon the self- definition and composition of the demos, becomes the site of jurisgenerative politics through which the demos faces the dis- junction between the universalist content of its constitutional commitments and the paradoxes of democratic closure. Popular sovereignty is not identical with territorial sovereignty, although the two are closely linked, both histori- cally and normatively. Popular sovereignty means that all full members of the demos are entitled to have a voice in the articu- lation of the laws by which the demos is to govern itself. Demo- cratic rule, then, extends its jurisdiction in the first place to those who can view themselves as the authors of such rule. As I will argue, however, there has never been a perfect overlap between the circle of those who stand under the law’s authority and the full members of the demos. Every democratic demos has disenfranchised some, while recognizing only certain indi- viduals as full members. Territorial sovereignty and democratic voice have never matched completely. Yet presence within a cir- cumscribed territory, and in particular continuing residence within it, brings one under the authority of the sovereign – whether democratic or not. The new politics of membership is about negotiating this complex relationship between the rights of full membership, democratic voice, and territorial residence. I argue that such negotiations and democratic itera- tions take place in the context of a world society of states. Con- sequently, policies regarding access to citizenship ought not to be viewed as unilateral acts of self-determination, but rather must be seen as decisions with multilateral consequences that 20 introduction influence other entities in the world community. Sovereignty is a relational concept; it is not merely self-referential. Defining the identity of the democratic people is an ongoing process of constitutional self-creation. While the paradox that those who are not members of the demos will remain affected by its decisions of inclusion and exclusion can never be completely eliminated, its effects can be mitigated through reflexive acts of democratic iteration by the people who critically examines and alters its own practices of exclusion. We can render the distinctions between “citizens” and “aliens,” “us” and “them,” fluid and negotiable through democratic iterations. Only then do we move toward a postmetaphysical and postnational con- ception of cosmopolitan solidarity which increasingly brings all human beings, by virtue of their humanity alone, under the net of universal rights, while chipping away at the exclusion- ary privileges of membership. The “disaggregation of citizen- ship rights” in contemporary Europe is the central case study through which these sociological trends toward postnational solidarity are illustrated. Chapter 1 begins with an examination of Kant’s doc- trine of cosmopolitan right. I focus on the Third Article of “Perpetual Peace,” concerning the right of universal hospi- tality and the only one in fact which Kant explicitly names “cosmopolitan right” (Weltbürgerrecht). I argue that, despite historical concerns which were radically different from ours, Kant set the terms which still guide our thinking on refugee and asylum claims on the one hand, and immigration on the other. Situated between morality and legality, between univer- sal principles of human rights and the established legal orders of individual polities, the right of hospitality demarcates a new 21 the rights of others level of international law which had been previously restricted to relations among sovereign heads of states. Chapter 2 considers Hannah Arendt’s discussion of “the right to have rights.” Reflecting on the predicament of statelessness in Europe during the interwar period of 1918– 1939, Arendt provides one of the most penetrating philosophi- cal articulations of the dilemma of rightlessness. Like Kant, she reflects on the inherent conflicts of the state-centric and terri- torially circumscribed world of international relations from a cosmopolitan standpoint. While Arendt brilliantly articulates the demise of the Westphalian model of state relations, she can offer no solutions to the dilemmas of the “right to have rights.” Partly for institu- tional, partly for philosophical reasons, she cannot deconstruct the stark dichotomy between human rights and citizens’ rights. By contrast, I develop an argument to bridge the gap that she opens up between these two dimensions of rights claims. My strategy is to incorporate citizenship claims into a universal human rights regime. Chapter 3 outlines the concept of just membership by engaging with contemporary neo-Kantian theories of global justice. I begin with a consideration of John Rawls’s The Law of Peoples, and analyze why migration is relegated to aspects of non-ideal theory. Contemporary critics of Rawls also neglect migration as a philosophical problem. As a corrective to Rawls’s focus on “peoples” (a term whose definition is contested), they articulate cosmopolitan-justice principles for individu- als. Global-distributive justice for individuals neglects one of the first principles of distribution, namely the distribution of human beings as members of diverse communities. What 22 introduction are the principles for the just distribution of membership? Contemporary theories of distributive justice not only ignore just membership but also suffer from a “democratic deficit,” because they pay little attention to the democratic legitimacy of their politics of distribution. There is an implicit tendency in these theories to favor world government or other supra- or transnational political agencies of distribution whose demo- cratic credentials are left in abeyance. Cosmopolitan feder- alism, by contrast, is a vision of global justice which is also democratic and which proceeds from the interdependence of democracy and distribution. This perspective permits us to reconceptualize transnational migrations. Chapters 4 and 5 are more institutional and empirical in focus. In chapter 4, I examine the disaggregation of citizen- ship claims, particularly with reference to the European Union. Collective identity, privileges of political membership, and the entitlement to social benefits are no longer bundled together within a unified institution of national citizenship. They are disaggregated and come under the purview of different rights regimes and multiple, nested sovereignties. Yet disaggregated citizenship is not cosmopolitan citizenship. The developments it describes may be driving the worldwide mobility of peo- ples without democratic attachments and civic commitments, leading to the formation of a world proletariat, participating in global markets but lacking a demos. Chapter 5 deals with the interpenetration of the local, the global, and the national and highlights the practice of democratic iterations. Cosmopolitan citizenship, I argue, entails the reclaiming and the repositioning of the universal – its iteration – within the framework of the local, the regional, 23 the rights of others or other sites of democratic activism and engagement. I focus on three cases drawn from recent European developments to illustrate practices of democratic iteration at work: the “scarf affair” in France; the case of a German-Afghani schoolteacher who was denied the right to teach with her head covered and the German Constitutional Court’s decision on the matter; and finally a 1990 decision of the German Constitutional Court that denied the right to vote in local elections to long-term foreign residents of the province of Schleswig-Holstein and the city- state of Hamburg. These decisions were superseded in 1993 by the Treaty of Maastricht, but they set in motion a pro- cess of democratic iteration which resulted in the abolishing of Germany’s rather antiquated and restrictive citizenship laws, dating back to 1913. 24 1 On hospitality: rereading Kant’s cosmopolitan right This chapter begins with an analysis of Kant’s understanding of cosmopolitan right. Kant’s discussion focuses on moral and legal relations which hold among individuals across bounded communities, and thereby demarcates a novel domain situated between the law of specific polities on the one hand and cus- tomary international law on the other. Katrin Flikschuh states this clearly: “Kant recognizes three distinct though related lev- els of rightful relation: the ‘Right of a State’ specifies relations of Right between persons within a state; the ‘Right of Nations’ pertains to relations of Right between states; and ‘the Right for all nations’ or ‘cosmopolitan Right’ concerns relations of Right between persons and foreign states” (Flikschuh 2000, 184). The normative dilemmas of political membership are to be localized within this third sphere of jus cosmopoliticum. “Perpetual Peace” and cosmopolitan right – a contemporary reevaluation Written in 1795, upon the signing of the Treaty of Basel by Prussia and revolutionary France, Kant’s essay on “Perpetual Peace” has enjoyed considerable revival of attention in recent years (see Bohman and Lutz-Bachmann 1997). What makes this essay particularly interesting under the current condi- tions of political globalization is the visionary depth of Kant’s project for perpetual peace among nations. Kant formulates 25 the rights of others three “definitive articles for perpetual peace among states.” These read: “The Civil Constitution of Every State shall be Republican”; “The Law of Nations shall be founded on a Fed- eration of Free States”; and “The Law of World Citizenship Shall be Limited to Conditions of Universal Hospitality” (Kant 1923, 434–446; 1994: 99–108).1 Much scholarship on this essay has focused on the precise legal and political form that these articles could or would take, and on whether Kant meant to propose the establishment of a world federation of republics (eine föderative Vereinigung) or a league of sovereign nation-states (Völkerbund). What remains frequently uncommented upon is the Third Article of “Perpetual Peace,” the only one in fact that Kant himself explicitly designates with the terminology of the Weltbürgerrecht. The German reads: “Das Weltbürgerrecht soll auf Bedingungen der allgemeinen Hospitalität eingeschränkt sein” (Kant 1923, 443). Kant himself notes the oddity of the locution of “hospitality” in this context, and therefore remarks that “it is not a question of philanthropy but of right.” In other words, hospitality is not to be understood as a virtue of sociability, as the kindness and generosity one may show to strangers who come to one’s land or who become depen- dent upon one’s acts of kindness through circumstances of nature or history; hospitality is a “right” which belongs to all human beings insofar as we view them as potential partic- ipants in a world republic. But the “right” of hospitality is 1 I have consulted several English translations of Kant’s “Perpetual Peace” essay, amending the text when necessary. For further information on these various editions, please consult the bibliography. The first date and page number refer to the German text, and the second to the English editions. 26 onhospitality odd in that it does not regulate relationships among individ- uals who are members of a specific civil entity under whose jurisdiction they stand; this “right” regulates the interactions of individuals who belong to different civic entities yet who encounter one another at the margins of bounded communi- ties. The right of hospitality is situated at the boundaries of the polity; it delimits civic space by regulating relations among members and strangers. Hence the right of hospitality occupies that space between human rights and civil rights, between the right of humanity in our person and the rights that accrue to us insofar as we are members of specific republics. Kant writes: “Hospitality [Wirtbarkeit] means the right of a stranger not to be treated as an enemy when he arrives in the land of another. One may refuse to receive him when this can be done without causing his destruction; but, so long as he peacefully occupies his place, one may not treat him with hostility. It is not the right to be a permanent visitor [Gastrecht] that one may demand. A special contract of beneficence [ein... wohltätiger Vertrag] would be needed in order to give an outsider a right to become a fellow inhabitant [Hausgenossen] for a certain length of time. It is only a right of temporary sojourn [ein Besuchsrecht], a right to associate, which all men have. They have it by virtue of their common possession [das Recht des gemeinschaftlichen Besitzes] of the surface of the earth, where, as a globe, they cannot infinitely disperse and hence must finally tolerate the presence of each other” (Kant 1923, 443; cf. 1949, 320). Kant distinguishes the “right to be a permanent visitor,” which he calls Gastrecht, from the “temporary right of sojourn” (Besuchsrecht). The right to be a permanent visitor is awarded through a freely chosen special agreement which 27 the rights of others goes beyond what is owed to the other morally and what he is entitled to legally; therefore, Kant names this a wohltätiger Vertrag, a “contract of beneficence.” It is a special privilege which the republican sovereign can award to certain foreigners who abide in their territories, who perform certain functions, who represent their respective political entities, who engage in long-term trade, and the like. The droit d’aubaine in pre- revolutionary France, which granted foreigners certain rights of residency, the acquisition of property, and the practicing of a profession, would be a pertinent historical example. The special trade concessions that the Ottoman empire, China, Japan, and India granted westerners from the eighteenth century onward would be others. The Jews in premodern Europe, who after their persecution through the Inquisition in Spain in the fifteenth century, spread to the north, to Holland, Britain, Germany, and other territories, would be another major group to whose status both the right of hospitality and that of permanent visitorship would apply. The right of hospitality entails a claim to temporary residency which cannot be refused, if such refusal would involve the destruction – Kant’s word here is Untergang – of the other. To refuse sojourn to victims of religious wars, to victims of piracy or ship-wreckage, when such refusal would lead to their demise, is untenable, Kant writes. What is unclear in Kant’s dis- cussion is whether such relations among peoples and nations involve acts of supererogation, going beyond the call of moral duty, or whether they entail a certain sort of moral claim con- cerning the recognition of “the rights of humanity in the person of the other.” 28 onhospitality We may see here the juridical and moral ambivalence that affects discussions of the right of asylum and refuge to this day. Are the rights of asylum and refuge “rights” in the sense of being reciprocal moral obligations which, in some sense or another, are grounded upon our mutual humanity? Or are these rights claims in the legal sense of being enforceable norms of behavior which individuals and groups can hold each other to and, in particular, force sovereign nation-states to comply with? Kant’s construction provides no clear answer. The right of hos- pitality entails a moral claim with potential legal consequences in that the obligation of the receiving states to grant temporary residency to foreigners is anchored in a republican cosmopo- litical order. Such an order does not have a supreme executive law governing it. In this sense the obligation to show hospital- ity to foreigners and strangers cannot be enforced; it remains a voluntarily incurred obligation of the political sovereign. The right of hospitality expresses all the dilemmas of a republi- can cosmopolitical order in a nutshell: namely how to create quasi-legally binding obligations through voluntary commit- ments and in the absence of an overwhelming sovereign power with the ultimate right of enforcement. But what exactly is Kant’s justification for the “temporary right of sojourn”? Why does this claim bind the will of the republican sovereign? When reflecting on the “temporary right of sojourn” (Besuchsrecht), Kant uses two different premises. One premise justifies the right of tem- porary sojourn on the basis of the capacity of all human beings (allen Menschen) to associate – the German reads sich zur Gesellschaft anzubieten (Kant 1923, 443). The other 29 the rights of others premise resorts to the juridical construct of a “common pos- session of the surface of the earth” (gemeinschaftlichen Besitzes der Oberfläche der Erde) (ibid.). With respect to the sec- ond principle, Kant suggests that to deny the foreigner and the stranger the claim to enjoy the land and its resources, when this can be done peacefully and without endanger- ing the life and welfare of original inhabitants, would be unjust. The juridical construct of a purported common pos- session of the earth, which has a long and honorable antecedent in old European jurisprudence, functions as a double-edged sword in this context. On the one hand, Kant wants to avoid the justificatory use of this construct to legitimize western colo- nialist expansion; on the other hand, he wants to base the right of human beings to enter into civil association with one another upon the claim that, since the surface of the earth is limited, at some point or other, we must learn to enjoy its resources in common with others. To understand the first of Kant’s worries, recall here John Locke’s argument in The Second Treatise of Civil Govern- ment. “In the beginning God gave the earth to men in common to enjoy” (Locke 1980, 19). The earth is a res nullius, belonging to all and none until it is appropriated; but to argue that the earth is a common possession of all human beings is, in effect, to disregard property relations historically existing among communities that have already settled on the land. The justification of the claim to property thus shifts from the his- torical title that legitimizes it to the modes of appropriation whereby what commonly belongs to a community can then be appropriated as “mine” or “thine.” 30 onhospitality Through a patently circular argument, Locke main- tains that private property emerges through the fact that the means of appropriation are themselves private: “the labor of his body, and the work of his hands, we may say, are prop- erly his... this nobody has any right to but himself ” (ibid.). In the context of European expansion to the Americas in the seventeenth century, Locke’s argument served to justify the colonial appropriation of the land precisely with the claim that the earth, being given to all “in common,” could then be justi- fiably appropriated by the industrious and the thrifty, without harming existing inhabitants and, in fact, for the benefit of all (Tully 1993). Kant explicitly rejects the res nullius thesis in its Lock- ean form, seeing in it a thinly disguised formula for expro- priating non-European peoples who do not have the capacity to resist imperialist onslaughts (Kant 1994, 107; see also Muthu, 1999, 2000). He supports the Chinese and the Japanese in their attempt to keep European traders at a distance. What does the premise of the “common possession of the earth” really justify, then? Once the earth has been appropriated, oth- ers no longer have a claim to possess it. Existing property rela- tions must be respected. If so, every community has the right to defend itself against those who seek access to its territo- ries. Apart from the assurance that turning away the ones who seek hospitality would not cause “their destruction” – admit- tedly itself a vague formulation – the dire needs of others do not constitute sufficient grounds to bend the will of existing sovereign communities. The claim to the “common possession of the earth” does disappointingly little to explicate the basis of cosmopolitan right. 31 the rights of others The sphericality of the earth and cosmopolitan right In Kant and Modern Political Philosophy, Katrin Flikschuh argues that the original common possession of the earth, and in particular the limited spherical character of the earth (der Erdkugel), plays a much more fundamental role in Kant’s justification in cosmopolitan right than I am claiming that it does. Flikschuh’s argument is worth considering in some detail. Flikschuh bases this reading not on Kant’s “Perpetual Peace” essay but on his Rechtslehre, the first half of Die Meta- physik der Sitten (The Metaphysics of Morals). Two passages are of special relevance here: The spherical surface of the earth unites all the places on its surface; for if its surface were an unbounded plane, men could be so dispersed on it that they would not come into any community with one another, and community would then not be a necessary result of their existence on the earth. (Kant 1922, 66; as quoted in Flikschuh 2000, 133)2 Since the earth’s surface is not unlimited but closed, the concepts of the Right of a state and of a Right of nations lead inevitably to the Idea of a Right for all nations (ius gentium) or cosmopolitan Right (ius cosmopoliticum). So if the principle of outer freedom limited by law is lacking in any of these three possible forms of rightful condition, the framework for all others is unavoidably underdetermined 2 Since there are some subtle discrepancies between various English editions and Flikschuh’s translations, I have kept references to her versions of the relevant passages. 32 onhospitality and must finally collapse. (Kant, 1922, 117–118; as quoted in Flikschuh 2000, 179) Without delving into details of discrepancies which may exist between the “Perpetual Peace” essay and Kant’s more difficult and fuller discussion in The Metaphysical Elements of Justice, for my purposes the most important question is this: does Kant mean to derive or deduce cosmopolitan right from the fact of the sphericality of the earth’s surface? What is the status of this fact in Kant’s moral argument? If indeed we were to assume that Kant used the sphericality of the earth as a jus- tificatory premise, wouldn’t we then have to conclude that he had committed the naturalistic fallacy? Just because all castles everywhere are built on sand, it still does not follow that mine should be so built as well. Likewise, just because I must, some- where and at some point, come into contact with other human beings and cannot flee them forever, this does not imply that upon such contact I must treat them with the respect and dig- nity to be accorded every human being. Flikschuh does not maintain in fact that the spher- icality of the earth’s surface is a justificatory premise: “The earth’s spherical surface is that empirical given space for pos- sible agency within which human beings are constrained to articulate their claims to freedom of choice and action... To the contrary, the global boundary constitutes an objective given, unavoidable condition of empirical reality within the limits of which human agents are constrained to establish possible relations of Right” (2000, 133). The spherical surface of the earth constitutes a circumstance of justice but does not function as a moral justificatory premise to ground cosmopolitan right. 33 the rights of others “Circumstances of justice” define indeed “the conditions of our possible agency,” as Flikschuh observes. Just as the facts that we are all mortal beings, physically members of the same species and afflicted by similar basic needs to assure our survival con- stitute constraining conditions in our reasoning about justice, so too the sphericality of the earth’s surface functions for Kant as a limiting condition of “outer freedom.” This, I think, is amply clear from Kant’s phrase, “So if the principle of outer freedom limited by law is lacking in any of these three possible forms of rightful condition...” (Kant 1922, 118). The “principle of outer freedom” is the justificatory premise in the argument which leads to the establishment of cosmopolitan right. Since, however, exercising our external freedom means that sooner or later, under certain circumstances, we will need to cross boundaries and come into contact with fellow human beings from other lands and cultures, we need to recognize the following: first, that the earth’s surface will be apportioned into the territory of individual republics;3 second, that conditions of right regulating intra- as well as interrepublican transactions 3 I am foregoing here a consideration of the considerable difficulties of Kant’s justification of property rights. Kant’s dilemma appears to have been the justification of the private apportionment of the earth’s surface without recourse to originary acts of occupation, since the latter, in Kant’s view, establish not a condition of right but rather of might. Nevertheless, Kant finds it necessary to resort to such an argument. “This postulate can be called a permissive principle [lex permissiva] of practical reason, which gives us authorization that could not be got from mere concept of Right as such, namely to put all others under an obligation which they would not otherwise have, to refrain from using certain objects of our choice because we have been the first to take them into our possession” (Kant 1922, 49). The lex permissiva holds not only within individual republics but also across republics. In the light of this stipulation, we also 34 onhospitality are necessary; and finally that among those conditions are those pertaining to the rights of hospitality and temporary sojourn. In the next chapter I hope to show that a reconstruction of the Kantian concept of the right to external freedom would lead to a more extensive system of cosmopolitan right than Kant himself offered us. The contemporary relevance of Kant’s concept of “temporary sojourn” Kant’s claim that first entry cannot be denied to those who seek it if this would result in their “destruction” (Unter- gang) has become incorporated into the Geneva Convention on the Status of Refugees as the principle of “non-refoulement” (United Nations 1951). This principle obliges signatory states not to forcibly return refugees and asylum seekers to their coun- tries of origin if doing so would pose a clear danger to their lives and freedom. Of course, just as sovereign states can manipu- late this article to define life and freedom more or less narrowly when it fits their purposes, it is also possible to circumvent the “non-refoulement” clause by depositing refugees and asylees in so-called safe third countries. Kant’s formulations clearly fore- saw as well as justified such balancing acts as between the moral obligations of states to those who seek refuge in their midst and see that the claim that only the republican sovereign can grant permanent visitation rights is based on the right of the republican sovereign to control “privately” a portion of the “common possession” of the earth’s surface. Bounded territoriality is thus made a precondition of the exercise of external freedom by Kant. Indeed, the recognition of “rightful borders” is essential if perpetual peace among nations is ever to be achieved. 35 the rights of others to their own welfare and interests. The lexical ordering of the two claims – the moral needs of others versus legitimate self- interest – is vague, except in the most obvious cases when the life and limb of refugees would be endangered by denying them the right of entry; apart from such cases, however, the obliga- tion to respect the liberty and welfare of the guest can permit a narrow interpretation on the part of the sovereign to whom it is addressed, and need not be considered an unconditional duty. The universal right to hospitality which is due to every human person imposes upon us an imperfect moral duty to help and offer shelter to those whose life, limb, and well-being are endangered. This duty is “imperfect” – i.e., conditional – in that it can permit exceptions, and can be overridden by legit- imate grounds of self-preservation. There is no obligation to shelter the other when doing so would endanger one’s own life and limb. It is disputed in moral philosophy as to how widely or narrowly the obligation to the other should be interpreted,4 and it is equally controversial how we should understand legit- imate grounds of self-preservation: is it morally permissible to turn the needy away because we think that they are altering our cultural mores? Does the preservation of culture constitute a legitimate basis of self-preservation? Is it morally permissible 4 Cf. Henry Sidgwick: “... but those who are in distress or urgent need have a claim on us for special kindness. These are generally recognized claims: but we find considerable difficulty and divergence, when we attempt to determine more precisely their extent and relative obligation: and the divergence becomes indefinitely greater when we compare the customs and common opinions now existing among ourselves in respect of such claims, with those of other ages and countries” (Sidgwick 1962, 246). For some recent treatments, see O’Neill 1996; Sheffler 2001. 36 onhospitality to deny asylum when admitting large numbers of needy peo- ples into our territories would cause a decline in our standards of living? And what amount of decline in welfare is morally permissible before it can be invoked as grounds for denying entry to the persecuted, the needy, and the oppressed? In for- mulating their refugee and asylum policies, governments often implicitly utilize this distinction between perfect and imper- fect duties, while human rights groups, as well as advocates of asylees and refugees, are concerned to show that the obligation to show hospitality to those in dire need should not be com- promised by self-regarding interests alone. In chapter 3 I shall return to the question of obligations across borders and argue that the construal of such obligations in the light of the narrow dichotomy of legitimate self-preservation versus the duties to others is inadequate. The international system of peoples and states is characterized by such extensive interdependencies and the historical crisscrossing of fates and fortunes that the scope of special as well as generalized moral obligations to our fellow human beings far transcends the perspective of the territorially bounded state-centric system. Instead, I shall defend the per- spective of a world society as the correct vantage point from which to reason about obligations across borders. It may be objected that such criticisms of Kant are anachronistic, for what motivates Kant’s formulations of cos- mopolitan right are not concerns for the needs of the poor, the downtrodden, the persecuted, and the oppressed as they search for safe haven, but rather the Enlightenment preoccu- pation of Europeans to seek contact with other peoples and to appropriate the riches of other parts of the world. The right to seek human association, or in the literal translation of the 37 the rights of others German, “to offer oneself to civil association [Gesellschaft] with others,” and to seek “approach” – Zugang – rather than entry – Eingang – is for Kant a fundamental human right. This is to be distinguished from the res nullius thesis; in fact, the right to seek human association is at the core of what it means to be a Weltbürger. In true Enlightenment fashion, Kant celebrates the ship and the camel (“the desert ship,” as he calls the latter) for reducing distances, breaking down barriers among local com- munities, and bringing the human race together. To deny “the possibility of seeking to communicate with prior inhabitants,” or ein Verkehr zu suchen (Kant 1923, 444; 1949, 321), is contrary to cosmopolitan right. The terminology of Verkehr zu suchen, which can extend to commercial as well as religious, cultural, and financial contacts, betrays Kant’s hope that, even if the motives of western powers in seeking to encompass the face of the globe may be less than laudatory, through increased contacts with other peoples and culture, “the human race can gradually be brought closer and closer to a cosmopolitan con- stitution” (eine weltbürgerliche Verfassung) (Kant 1923, 444; 1994, 106). While Kant’s focus fell, for understandable historical reasons, upon the right of temporary sojourn, my concern is with the unbridgeable gap he suggests exists between the right of temporary sojourn and permanent residency. The first is a right, the second a privilege; granting the first to strangers is an obligation for a republican sovereign, whereas allowing the second is a “contract of beneficence.” The rights of strangers and foreigners do not extend beyond the peaceful pursuit of their means of livelihood upon the territory of another. What about the right to political membership, then? Under what 38 onhospitality conditions, if any, can the guest become a member of the republican sovereign? How are the boundaries of the sovereign defined? Kant envisages a world condition in which all mem- bers of the human race become participants in a civil order and enter into a condition of lawful association with one another. Yet this civil condition of lawful coexistence is not equivalent to membership in a republican polity. Kant’s cosmopolitan cit- izens still need their individual republics to be citizens at all. This is why Kant is so careful to distinguish a “world gov- ernment” from a “world federation.” A “world government,” which he argues would result only in a “universal monarchy,” would be a “soulless despotism,” whereas a federative union (eine föderative Vereinigung) would still permit the exercise of citizenship within bounded communities (Kant 1923, 453; 1949, 328).5 We are left with an ambiguous Kantian legacy: while liberals attempt to expand the circumstances to which first- admittance obligations would apply by building more condi- tions into the phrase “the destruction of the other,” such as economic welfare considerations (see Kleingeld 1998, 79–85), civic republicans and defenders of national sovereignty point to Kant’s condemnation of world government, as well as to his insistence upon the prerogative of the sovereign to grant membership, in order to justify the rights of national states to 5 See Istvan Hont’s prescient remarks: “If the ‘crisis of nation-states’ is linked to a weakness in the legitimation of their territorial specification, and that is linked to the legitimation of their national property in land, then the idea of the ‘nation-state’ cannot be now in crisis, because it has always been in ‘crisis.’ The only possible world of territorial security is the world of perpetual peace” (Hont 1995, 176). 39 the rights of others police their borders (Martens 1996, 337–339). Kant wanted to justify the expansion of commercial and maritime capitalism in his time, insofar as these developments brought the human race into closer contact, without condoning European impe- rialism. The cosmopolitan right of hospitality gives one the right of peaceful temporary sojourn, but it does not entitle one to plunder and exploit, conquer and overwhelm by supe- rior force those among whom one is seeking sojourn. Yet the cosmopolitan right is a right precisely because it is grounded upon the common humanity of each and every person and his or her freedom of will which also includes the freedom to travel beyond the confines of one’s cultural, religious, and ethnocentric walls. The Kantian cosmopolitan legacy Kant’s construction and justification of the cosmopoli- tan right of temporary sojourn will form a reference point for much of the following discussion. Kant’s “Perpetual Peace” essay signaled a watershed between two conceptions of sovereignty and paved the way for the transition from the first to the second. We can name these “Westphalian sovereignty” and “liberal international sovereignty” (see Held 2002, 4–6; Krasner 1999, 20–25). In the classical Westphalian regime of sovereignty, states are free and equal; they enjoy ultimate authority over all objects and subjects within a circumscribed territory; relations with other sovereigns are voluntary and contingent and lim- ited in kind and scope to transitory military and economic alliances as well as cultural and religious affinities; above all, 40 onhospitality states “regard cross-border processes as a ‘private matter’ con- cerning only those immediately affected” (Held 2002, 4). By contrast, in conceptions of liberal international sovereignty, the formal equality of states is increasingly depen- dent upon their subscribing to common values and principles such as the observance of human rights and the rule of law and respect for democratic self-determination. Sovereignty no longer means ultimate and arbitrary authority; states that treat their citizens in violation of certain norms, that close borders, prevent a free market, limit freedom of speech and association, and the like, are thought not to belong within a specific society of states or alliances; the anchoring of domestic principles in institutions shared with others is crucial. Insofar as Article One of Kant’s “Perpetual Peace” reads that “The Civil Constitution of Every State shall be Republi- can,” Kant certainly can be seen to straddle the classical West- phalian and the liberal-international models of sovereignty. The demand that the constitutions of free and equal states should be republican imposes on these states the three condi- tions of republican government: (1) freedom for all members of a society (as men); (2) the dependence of everyone upon a sin- gle common legislation (as subjects); (3) the principle of legal equality for everyone (as citizens) (Kant 1923, 434–443; 1994, 99–105). Whatever its precise political form may be, the league of nations – das Völkerbund – envisaged by Kant is first and foremost an alliance among sovereign republics which subscribe to these principles. Kant does not go so far as to make the recogni- tion of the sovereignty of a state depend upon its internal 41 the rights of others constitution. Nor would Kant approve “humanitarian inter- ventions” designed to spread progressive ideals, except in one case: namely civil war and the dissolution of existing author- ity. This is the fifth of Kant’s “preliminary articles of perpetual peace between states” (Kant 1923, 430; 1994, 96). Kant’s liberalism is also less robust than our more univer- salist contemporary understanding in that women, domes- tic servants, and propertyless apprentices are named by Kant “auxiliaries to the commonwealth,” and their legal status is made dependent upon the male head of household. Neverthe- less, in stipulating that a republican constitution “is the original basis of every kind of civil constitution” (Kant 1923, 435; 1994, 100), and in linking peace among states to their internal constitutions, Kant paved the way from Westphalian to a liberal understanding of sovereignty. It is also remarkable that crossborder relationships which arise out of the needs of travelers, discoverers, refugees, and asylees were accorded such a significant role in delineating cosmopolitan right. Kant clearly demarcated the tensions between the injunctions of a universalistic morality to offer temporary sojourn to all and the legal prerogative of the republican sovereign not to extend such temporary sojourn to full mem- bership. Contra Kant, I will argue that the right to member- ship of the temporary resident must be viewed as a human right which can be justified along the principles of a univer- salistic morality. The terms and conditions under which long- term membership can be granted remain the prerogative of the republican sovereign. Yet here too human rights constraints such as non-discrimination, the right of the immigrant to due 42 onhospitality process, must be respected. While the prerogative of states to stipulate some criteria of incorporation cannot be rejected, we have to ask: which are those incorporation practices that would be impermissible from a moral standpoint and which are those practices that are morally indifferent – that is to say, neutral from the moral point of view? Kant’s formulations permit us to capture the structural contradictions between universalist and republican ideals of sovereignty in the modern revolutionary period. In conclusion, I want to name this contradiction “the paradox of democratic legitimacy” and delineate it systematically. The paradox of democratic legitimacy Ideally, democratic rule means that all members of a sovereign body are to be respected as bearers of human rights, and that the consociates of this sovereign freely associate with one another to establish a regime of self-governance under which each is to be considered both author of the laws and sub- ject to them. This ideal of the original contract, as formulated by Jean-Jacques Rousseau and adopted by Kant, is a heuristi- cally useful device for capturing the logic of modern democra- cies. Modern democracies, unlike their ancient counterparts, conceive of their citizens as rights-bearing consociates. The rights of the citizens rest upon the “rights of man.” Les droits de l’homme et de citoyen do not contradict one another; quite to the contrary, they are coimplicated. This is the idealized logic of the modern democratic revolutions following the American and French examples. 43 the rights of others The democratic sovereign draws its legitimacy not merely from its act of constitution but, equally significantly, from the conformity of this act to universal principles of human rights that are in some sense said to precede and antedate the will of the sovereign and in accordance with which the sovereign undertakes to bind itself. “We, the people,” refers to a particular human community, circumscribed in space and time, sharing a particular culture, history, and legacy; yet this people estab- lishes itself as a democratic body by acting in the name of the “universal.” The tension between universal human rights claims, and particularistic cultural and national identities, is constitutive of democratic legitimacy. Modern democracies act in the name of universal principles which are then circum- scribed within a particular civic community. This is the “Janus face of the modern nation,” in the words of Jürgen Habermas (Habermas 1998, 115). Since Rousseau, however, we also know that the will of the democratic people may be legitimate but unjust, unani- mous but unwise. “The general will” and “the will of all” may not overlap either in theory or in practice. Democratic rule and the claims of justice may contradict one another. The demo- cratic precommitments expressed in the idealized allegiance to universal human rights – life, liberty, and property – need to be reactualized and renegotiated within actual polities as democratic intentions. Potentially, there is always a conflict between an interpretation of these rights claims which pre- cedes the declared formulations of the sovereign, and the actual enactments of the democratic people which could potentially violate such interpretations. We encounter this conflict in the history of political thought as the conflict between liberalism 44 onhospitality and democracy, and even as the conflict between constitution- alism and popular sovereignty. In each case the logic of the conflict is the same: to assure that the democratic sovereign will uphold certain constraints upon its will by virtue of its precommitment to certain formal and substantive interpreta- tion of rights. Liberal and democratic theorists disagree with one another as to the proper balance of this mix: while strong liberals want to bind the sovereign will through precommit- ments to a list of human rights, strong democrats reject such a prepolitical understanding of rights and argue that they must be open to renegotiation and reinterpretation by the sovereign people – admittedly within certain limits. Yet this paradox of democratic legitimacy has a corol- lary which has been little noted: every act of self-legislation is also an act of self-constitution. “We, the people,” who agree to bind ourselves by these laws, are also defining ourselves as a “we” in the very act of self-legislation. It is not only the general laws of self-government which are articulated in this process; the community that binds itself by these laws defines itself by drawing boundaries as well, and these boundaries are territo- rial as well as civic. The will of the democratic sovereign can extend only over the territory under its jurisdiction; democra- cies require borders. Empires have frontiers, while democra- cies have borders. Democratic rule, unlike imperial dominion, is exercised in the name of some specific constituency and binds that constituency alone. Therefore, at the same time that the sovereign defines itself territorially, it also defines itself in civic terms. Those who are full members of the sovereign body are distinguished from those who “fall under its protection,” but who do not enjoy “full membership rights.” Women and 45 the rights of others slaves, servants, and propertyless white males, non-Christians and non-white races, were historically excluded from member- ship in the sovereign body and from the project of citizenship. They were, in Kant’s famous words, mere “auxiliaries to the commonwealth” (Kant 1922, 121; 1994, 140). The boundaries of the civil community are of two kinds: on the one hand, these boundaries define the status of those who hold second-class citizenship status within the polity but who can be considered members of the sovereign people by virtue of cultural, familial, and religious attachments. Women, as well as non-propertied males before the extension of univer- sal suffrage, fell into this category; the status of these groups is distinct from that of other residents who not only have second- class status but who also do not belong to the sovereign people by virtue of relevant identity-based criteria. Such was the status of African-American slaves until after the American Civil War and the declaration in 1865 of the 14th Amendment to the US Constitution (adopted in 1868) which conferred US citizenship upon Black peoples; such was also the status of American Indi- ans who were granted tribal sovereignty. The status of those of Jewish faith in the original thirteen colonies that formed the United States can be described as one of transition from being an “auxiliary to the commonwealth” to being a full-fledged citizen. In addition to these groups are those residents of the commonwealth who do not enjoy full citizenship rights either because they do not possess the requisite identity cri- teria through which the people defines itself, or because they belong to some other commonwealth, or because they choose 46 onhospitality to remain outsiders. These are the “aliens” and “foreigners” amidst the democratic people. Their status is distinct from that of second-class citizens such as women and workers, as well as from that of slaves and tribal peoples. This status is governed by mutual treaties among sovereign entities, as would be the case with official representatives of a state power upon the territory of the other; and if they are civilians, and live among citizens for economic, religious, or other cultural reasons, their rights and claims exist in that murky space defined by respect for human rights on the one hand and by international customary law on the other. They are refugees from religious persecution, mer- chants and missionaries, migrants and adventurers, explorers and fortune-seekers. I have circumscribed in general theoretical terms the paradox of democratic legitimacy. The paradox is that the republican sovereign should undertake to bind its will by a series of precommitments to a set of formal and substantive norms, usually referred to as “human rights.” The rights and claims of others – be they “auxiliaries to the commonwealth,” as women, slaves, and propertyless males were considered to be, or be they subjugated peoples or foreigners – are then nego- tiated upon this terrain flanked by human rights on the one hand and sovereignty assertions on the other. In what follows I will argue that, while this para- dox can never be fully resolved for democracies, its impact can be mitigated through a renegotiation and reiteration of the dual commitments to human rights and sovereign self- determination. Popular sovereignty, which means that those who are subject to the law are also its authors, is not identical 47 the rights of others with territorial sovereignty. While the demos, as the popular sovereign, must assert control over a specific territorial domain, it can also engage in reflexive acts of self-constitution, whereby the boundaries of the demos can be readjusted. The politics of membership in the age of the disaggregation of citizenship rights is about negotiating the complexities of full membership rights, democratic voice, and territorial residence. 48 2 “The right to have rights”: Hannah Arendt on the contradictions of the nation-state The previous chapter analyzed Kant’s formulation and defense of cosmopolitan right and argued that the text left unclear which of the following premises justified the cosmopolitan right to hospitality: the right to seek human association, which in fact, could be viewed as an extension of the human claim to freedom; or the premise of the sphericality of the earth’s surface and the juridical fiction of the common possession of the earth. Kant’s discussion of cosmopolitan right, whatever its shortcomings, delineates a new terrain in the history of political thought. In formulating a sphere of right – in the juridical and moral senses of the term – between domestic constitutional and customary international law, Kant charted a terrain onto which the nations of this world began to venture only at the end two world wars. Kant was concerned that the granting of the right to permanent residency (Gastrecht) should remain a priv- ilege of self-governing republican communities. Naturalization is a sovereign privilege. The obverse side of naturalization is “denationalization,” or loss of citizenship status. After Kant, it was Hannah Arendt who turned to the ambiguous legacy of cosmopolitan law, and who dissected the paradoxes at the heart of the territorially based sovereign state system. One of the great political thinkers of the twenti- eth century, Hannah Arendt argued that the twin phenomena 49 the rights of others of “political evil” and “statelessness” would remain the most daunting problems into the twenty-first century as well (Arendt 1994, 134; 1968; see Benhabib 2003). Arendt always insisted that among the root causes of totalitarianism was the collapse of the nation-state system in Europe during the two world wars. The totalitarian disregard for human life and the eventual treatment of human beings as “superfluous” entities began, for Hannah Arendt, when millions of human beings were rendered “stateless” and denied the “right to have rights.” Statelessness, or the loss of nationality status, she argued, was tantamount to the loss of all rights. The stateless were deprived not only of their citizenship rights; they were deprived of any human rights. The rights of man and the rights of the citizen, which the modern bourgeois revolutions had so clearly delin- eated, were deeply imbricated. The loss of citizenship rights, therefore, contrary to all human rights declarations, was polit- ically tantamount to the loss of human rights altogether. This chapter begins with an examination of Arendt’s contribution; thereafter, I develop a series of systematic con- siderations which are aimed to show why neither the right to naturalization nor the prerogative of denaturalization can be considered sovereign privileges alone; the first is a univer- sal human right, while the second – denaturalization – is its abrogation. Imperialism and the “End of the Rights of Man” In The Origins of Totalitarianism, first published in Britain in 1951 as The Burden of Our Times, Arendt wrote: 50 “the right to have rights” Something much more fundamental than freedom and justice, which are rights of citizens, is at stake when belonging to a community into which one is born is no longer a matter of course and not belonging no longer a matter of choice, or when one is placed in a situation where, unless he commits a crime, his treatment by others does not depend on what he does or does not do. This extremity, and nothing else, is the situation of people deprived of human rights. They are deprived, not of the right to freedom, but of the right to action; not of the right to think whatever they please, but of the right to opinion... We become aware of the existence of a right to have rights (and that means to live in a framework where one is judged by one’s actions and opinions) and a right to belong to some kind of organized community, only when millions of people emerge who had lost and could not regain these rights because of the new global political situation. (Arendt 1968, 177. My emphasis.) The phrase “the right to have rights” and Arendt’s resounding plea for the acknowledgment of the right of every human being to “belong to some community” are introduced at the end of part II of The Origins of Totalitarianism, which is called “Imperialism.” To understand Arendt’s philosophical intentions, it is necessary to follow the broad outlines of this discussion. In the opening sections of “Imperialism,” Arendt examines the European “scramble for Africa.” Her thesis is that the encounter with Africa allowed the colonizing white nations such as the Belgians, the Dutch, the British, the Germans, and the French to transgress abroad those moral limits 51 the rights of others that would normally control the exercise of power at home. In the encounter with Africa, civilized white men regressed to levels of inhumanity by plundering, looting, burning, and rap- ing the “savages” whom they encountered. Arendt uses Joseph Conrad’s famous story, “The Heart of Darkness,” as a para- ble of this encounter. The “heart of darkness” is not in Africa alone; twentieth-century totalitarianism brings this cen

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