Published by De Gruyter

Volume 8 Issue 2 - Why Citizenship?

July 2007

Issue of Theoretical Inquiries in Law

Contents
Journal Overview

Article

May 29, 2007

Who Is the Citizen's Other? Considering the Heft of Citizenship

Audrey Macklin

Page range: 333-366

Abstract

The objective of this Article is to integrate legal and social conceptions of citizenship as they materialize at the geographic, political, and social border crossings that accompany transnational mobility. Rather than pose the question "who is the citizen?," I ask "who is the citizen’s Other?," partly as a means of surfacing what we mean by citizenship by thinking about who we designate as its alterity. Against the current of most contemporary scholarship, I commend resurrecting the concept of statelessness as an antipodal reference point for citizenship. My intuition is that a version of statelessness still dwells in the substratum of much citizenship discourse, and that rendering a plausible account of it under contemporary conditions may prove helpful in linking conversations about legal and social citizenship. I supplement the conventional understanding of the stateless person (apatride) as one who lacks any citizenship in a state by also designating as stateless one who possesses citizenship but lacks a state. My analysis draws on Hannah Arendt’s famous exegesis on the relationship between the apatride, the refugee, and the condition of rightlessness, as well as contemporary refugee jurisprudence. I demonstrate how subject positions commonly identified as the citizen’s Other, including the refugee, the alien and the second-class citizen, are better understood as nested within a larger matrix where the apatride represents the ultimate negation of citizenship. I then introduce the notion of the "heft" of citizenship as a method of assessing how legal citizenship and social citizenship interact to position an array of subjects between these stylized poles of citizenship and statelessness.

May 29, 2007

The Worth of Citizenship in an Unequal World

Ayelet Shachar

Page range: 367-388

Abstract

In today’s world, one’s place of birth and one’s parentage are — by law — relevant to, and often conclusive of, one’s access to membership in a particular political community. Birthright citizenship largely shapes the allocation of membership entitlement itself (the "gate-keeping" or demos-demarcation function of citizenship). But no less significantly, it also distributes opportunity unequally (the "wealthpreserving" function of citizenship). This makes citizenship a matter of inherited entitlement. In a world in which membership in different political communities translates into very different starting points in life, upholding this legal connection between birth, political membership, and life opportunities raises important questions of distributive justice. These questions are particularly pressing given that the vast majority of the world’s population — 97 out of every 100 people — acquire political membership via circumstances beyond their control, that is, according to where and to whom they were born. While we find vibrant debates in the literature about the legitimacy of citizenship’s demos-demarcation function, the perpetuation of unequal starting points through intergenerational transmission of membership has largely escaped scrutiny. It is this omission that this Article aims to address.

May 29, 2007

Being Here: Ethical Territoriality and the Rights of Immigrants

Linda Bosniak

Page range: 389-410

Abstract

In this Article, I examine a normative idea of territoriality which I call ethical territoriality. By ethical territoriality, I mean the conviction that rights and recognition should extend to all persons who are territorially present within the geographical space of a national state simply by virtue of that presence. I start by briefly reprising a claim I have developed elsewhere — that territorialism is preferable, on liberal democratic grounds, to status-based approaches to immigrants’ rights. Here, though, I set out to interrogate the logic of ethical territoriality itself. I ask why the mere fact of a person’s territorial presence should serve as the basis for rights and recognition. Further, even conceding that it should, I ask how this commitment is to be operationalized. What is the scope of the territory in which presence figures so significantly in normative terms, and who, precisely, gets access to presence in that territory? My purpose in this Article is to get beyond the status vs. territorial presence-as-basis-for-membership dispute in the immigration debates and to begin a (self-) critical discussion of the ethical territorial commitment itself.

May 29, 2007

Spheres of Citizenship

Yishai Blank

Page range: 411-452

Abstract

The Article argues that, contrary to its state-centered conception, citizenship is determined, managed and controlled in three distinct yet intertwined territorial spheres: the local, the national and the global. Without claiming that the national sphere is vanishing or becoming irrelevant for the determination of rights, duties, group belonging and participation in public life (all different aspects of citizenship), I argue that sub-national territorial units as well as supranational political organizations are increasingly impacting citizenship. All three spheres take part in deciding who shall be entitled to various rights (political, social and economic), what shall be the exact content of those rights, and who shall have the power to make such determinations. Yet each sphere bases its citizenship on a distinct logic and on a different set of assumptions and justifications: the local on residency; the national on lineage or place of birth; and the global on belonging to humanity. The Article demonstrates the ways in which citizenship is impacted by the three spheres and the different forms of legitimation that each sphere enjoys. The realization that our citizenship is a product of developments and activities in all three levels has theoretical, analytical and practical implications.

May 29, 2007

Why European Citizenship? Normative Approaches to Supranational Union

Rainer Bauböck

Page range: 453-488

Abstract

European citizenship is a nested membership in a multilevel polity that operates at member state and union levels. A normative theory of supranational citizenship will necessarily be informed by the EU as the only present case and will be addressed to the EU in most of its prescriptions, but should still develop a model sufficiently general to potentially apply to other regional unions as well. The Article first describes three basic characteristics of such a polity — democratic representation at the supranational level, internal freedom of movement between member states, and regional limits to external geographic expansion — and argues that a multiplication of such regional unions would contribute to a more just and peaceful international order. Building on this modification of Kant’s model for a global confederation of republics, the contribution explores three alternative approaches for strengthening democratic citizenship in the European Union: a statist approach that aims at transforming the EU into a federal state, a unionist approach whose goal is to strengthen union citizenship vis-a`-vis member state nationality, and a pluralist one that specifies citizenship norms for each level and balances them with each other on the basis of the current state of federal integration. These approaches are then compared with regard to their implications for three policy questions: (1) general status differences and inequality of rights amongst EU citizens living in their country of nationality, EU citizens residing in other member states, third-country nationals, and EU citizens residing outside the territory of the Union; (2) voting rights in European, national, and local elections; and (3) access to Union citizenship and to member state nationality.

May 29, 2007

Citizenship with a Vengeance

Catherine Dauvergne

Page range: 489-508

Abstract

This Article situates contemporary shifts in citizenship law within a story of the relationship of globalization and illegal migration. The central argument is that citizenship as a formal legal status is enjoying a resurgence of authority at present. This mirrors the paradoxical nature of globalization itself: along the vector of citizenship, both inclusions and exclusions are increasing at present. As states are increasingly unable to assert exclusive power in a range of policy domains, immigration and citizenship law are transformed into a last bastion of sovereignty. Many shifts in citizenship law are explained through an understanding of how migration law and citizenship law work in tandem to form the border of the national community. Recent changes in citizenship law respond to two trends: a crackdown on extra-legal migration and a desire to reassert authority over diasporic populations. While the focus of the Article is on citizenship as a formal legal status, the importance of amnesty programs for extra-legal migrants demonstrates that ultimately the bifurcation of formal and substantive citizenship is untenable.

May 29, 2007

Advancing Citizenship: The Legal Armory and Its Limits

Kim Rubenstein

Page range: 509-536

Abstract

This Article considers the use of litigation as one mechanism to make citizenship more inclusive. It examines three Australian High Court decisions on citizenship in which the author was also counsel. While addressing the promotion of inclusive approaches to citizenship as a legal status, the Article argues that advocates must consider a range of avenues for advancing their clients’ claims. In doing so, the Article also presents a normative critique of citizenship legislation as not paying enough attention to the individual’s affiliation with Australia. The cases highlight rules that overlook certain individuals without giving sufficient consideration to their special circumstances, demonstrating that a person’s identity is not always reflected in law.

May 29, 2007

The Citizen and the Migrant: Postcolonial Anxieties, Law, and the Politics of Exclusion/Inclusion

Ratna Kapur

Page range: 537-570

Abstract

This Article examines how the legal subjectivity of the migrant subject is intimately connected to the construction of the citizenship subject and how both have been products of the colonial encounter. Deploying the lens of postcolonialism, I argue that the migrant is addressed through a spectrum of legal rules based on normative criteria reminiscent of the colonial encounter. These criteria reinscribe citizenship within dominant racial, sexual, and cultural norms as well as claims of civilizational superiority. That which does not fall within the boundaries of citizenship is regarded as outcast, an "Other," and subject to restraint, persecution, censorship, social stigma, incarceration, and even annihilation. The discussion draws examples from recent judicial decisions in the context of postcolonial India, dealing with migrant bar dancers and migrant Muslims, highlighting the deep and lasting impact of the colonial encounter and the imperial imagination on understandings and constructions of citizenship in the contemporary period. The cases further illustrate how notions of "global" or "world" citizen, unbound by territory or the nation-state, are unable to account for the complex and contradictory understandings of citizenship that have emerged from within a postcolonial context. The arguments force us to inquire into the role of citizenship, its relevance or meaninglessness in the lives of the migrant once its exclusionary potential has been exposed.

May 29, 2007

The Culture of Citizenship

Leti Volpp

Page range: 571-602

Abstract

The headscarf debate in France exemplifies what is widely perceived as the battle between a culture-free citizenship and a culturally-laden other. This battle, however, presumes the existence of a neutral state that must either tolerate or ban particular cultural differences. In this Article, I challenge that presumption by demonstrating how both cultural difference and citizenship are imagined and produced. The citizen is assumed to be modern and motivated by reason; the cultural other is assumed to be traditional and motivated by culture. Yetcitizenship is both a cultural and anti-cultural institution: citizenship positions itself as oppositional to culture, even as it is constituted by cultural values. Recent scholars of multiculturalism have turned to concepts of citizenship as a solution to the dilemma raised by conflicts over culture. But these concepts of citizenship, namely deliberative democracy and civic participation, replicate the presumption of a culture-less "citizenship" — and thus constitute an ironic choice of solution to the problem of cultural difference.

May 29, 2007

Citizenship Betrayed: Israel's Emerging Immigration and Citizenship Regime

Yoav Peled

Page range: 603-628

Abstract

In this Article I argue that the citizenship status of Israel’s Palestinian citizens has been eroding since the "events" of October 2000 and that, as a result, Israel, within its rpe-1967 borders, may be moving from a form of democracy that has been termed "ethnic democracy" towards a form of non-democratic state that has been termed "ethnocracy." My argument is based primarily on two legal documents: the new Citizenship and Entry into Israel (Temporary Order) Law, 2003, which denies Palestinian citizens the right to unite with their closest family members who are residents of the Occupied Territories, and the decision of the High Court of Justice that upheld the constitutionality of this law in 2006. Two other developments that seem to support my thesis are analyzed as well: the "events" of October 2000 themselves and the report of the state commission of inquiry that investigated these events (the Or Commission), and the plan, advanced by Yvette Lieberman and his political party, "Yisrael Beytenu," to shift the border between Israel and the West Bank westward, depriving tens of thousands of citizen-Palestinians of their Israeli citizenship.

May 29, 2007

(In)Security and Citizenship: Security, Im/migration and Shrinking Citizenship Regimes

Alexandra Dobrowolsky

Page range: 629-662

Abstract

This Article points to a widening gap between citizenship theories and practices. Although discourses of citizenship resonate widely and are used extensively by scholars and policy makers, the author argues that the social, economic, political and even psychological processes of citizenship are shrinking in a contemporary context of global insecurity where im/migration and ever more restrictive national security concerns have become enmeshed in law, as well as in the public consciousness. As a result, this Article explores new trends of securitization and related processes of marketization, racialization and the invisibilization and/or instrumentalization of women and evaluates their impact on citizenship in Canada and Britain. A citizenship regime framework structures the analysis and highlights the contraction of citizenship in both countries. In the end, despite their purported concern with citizenship, social exclusion and social cohesion, British and Canadian state’s responses serve to perpetuate feelings of insecurity on the part of both citizens and non-citizens.

May 29, 2007

Managing Migration, Reprioritizing National Citizenship: Undocumented Migrant Workers' Children and Policy Reforms in Israel

Adriana Kemp

Page range: 663-692

Abstract

The Article traces recent trends in the management and distribution of citizenship within the Israeli context of the 1990s, as they have evolved in the wake of new modes of migration that are neither Jewish nor Palestinian and that stem from liberalized market policies. The Article focuses on administrative and policy initiatives taken since September 2003 that deal with the naturalization of the children of undocumented labor migrants. The vulnerable situation of these migrants in lacking resident status and being eligible for deportation, as well as the predominant Jewish ethno-national character of the Israeli state, make these initiatives and policy measures particularly surprising. However, these measures also reveal the boundaries of liberalizing reforms, as they become part of general trends in the nation-state towards deeming membership manageable without upsetting its national politics of identity. Indeed, it will be argued that, though this liberalizing legal reform is part of a larger context of demystification of national citizenship taking place in Israel following the adoption of socioeconomic liberal policies, it is also indicative of the adaptability of the nation-state as it seeks to reprioritize ethno-national definitions of citizenship in the face of new challenges.

May 29, 2007

Why Citizenship: Where, When and How Children?

Ruth Lister

Page range: 693-718

Abstract

This Article addresses the general question of "why citizenship?" through the lens of children’s citizenship. It unpacks the different elements of substantive citizenship and considers what they mean for children: membership and participation; rights; responsibilities; and equality of status, respect and recognition. It then discusses the lessons that may be learned from feminist critiques of mainstream constructions of citizenship, paying particular attention to the question of capacity for citizenship. It concludes by suggesting that much of the literature that is making the case for recognition of children as citizens is not so much arguing for the wholesale extension of adult rights and obligations of citizenship to children but recognition that children’s citizenship practices constitute them as de facto, even if not complete de jure, citizens. More broadly, the Article argues that this position points towards an understanding of citizenship which embraces but goes beyond that of a bundle of rights.

May 29, 2007

Industrial Citizenship, Social Citizenship, Corporate Citizenship: I Just Want My Wages

Guy Mundlak

Page range: 719-748

Abstract

The Article critically examines the adaptation of citizenship rights to industrial relations and labor law. Starting with T.H. Marshall’s discussion of industrial citizenship, the Article examines the coupling of industrial citizenship with trade unions. While Marshall’s concept of industrial citizenship may seem to be in decline, other labor market institutions are trying to bridge the divide between citizenship and labor rights: workplace democracy, which assumes the constituency of workers in the corporation; and corporate citizenship, which is used to entrust corporations with obligations that are traditionally expected of human citizens. Citizenship’s contribution to the analysis of labor market institutions lies in the emphasis on the public nature of workers’ rights, in the association of rights with obligations, and in the emphasis on active participation. However, citizenship also has "blind spots" that other theories address more coherently. Human rights are a preferred concept for distinguishing fundamental rights (including rights of citizenship) from "ordinary" rights. Labor rights are more effective in identifying power structures that citizenship rights may overlook. Consequently, the concept of citizenship may compromise workers’ capacity to negotiate fair remuneration, protection from dismissal and the dignity of labor.

About this journal

Theoretical Inquiries in Law is devoted to the application to legal thought of insights developed by diverse disciplines such as philosophy, sociology, economics, history and psychology. The range of legal issues dealt with by the journal is virtually unlimited, subject only to the journal's commitment to cross-disciplinary fertilization of ideas. We strive to provide a forum for all those interested in looking at law from more than a single theoretical perspective and who share our view that only a multi-disciplinary analysis can provide a comprehensive account of the complex interrelationships between law, society and individuals.

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At present, Theoretical Inquiries in Law is ranked third for "impact factor" by the Washington and Lee most cited legal periodicals list in the "Jurisprudence and Legal Theory" category, ahead of such journals as Law and Social Inquiry, Law and Society Review, Legal Theory, Canadian Journal of Law & Jurisprudence and Oxford Journal of Legal Studies.