The Politics of Immigration and Membership The Politics of Immigration and Membership Seyla Benhabib’s The Rights of Others

The Rights of Others: Aliens,

Residents and Citizens

by Seyla Benhabib

Cambridge, UK: Cambridge University Press, 2004

251 pp $65 cloth $23.99 paper

“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,” Seyla Benhabib writes in her new book, The Rights of Others. Transnational migrations and global interdependence are the unknown terrain, state sovereignty and patrolled frontiers the old maps. Contemporary migrations are not an isolated phenomenon explicable in terms of a free choice that immigrants make when they leave their countries of origin and host states make when they receive them. These are epochal transformations that are literally changing the face of entire continents, the social conventions of millions of people. The friction between this new terrain and the old conceptual maps has potentially explosive effects when a continent such as Europe, which aspires to become the beacon of cosmopolitan morality, patrols its borders to defend its civilization or manufacture its Europeanness. Europe’s new enemies, the only enemies against which she is willing to mobilize her troops, are neither bellicose states nor expansionist empires, but boat people, disperati, who seek to escape poverty and hunger, even though no international code accords them the status of refugees. The problem is that liberal democratic states do not regard economic destitution as a form of persecution, while their minimalist definition of democracy is blind to de facto undemocratic regimes. So transnational migration produces blatant contradictions between universal human rights and the extant set of naturalization, immigration, refugee, and asylum policies.

Is the international community—the UN or supranational authorities such as the European Union—strong enough to induce nation-states to comply with norms of humanity and justice? Can political membership become a cornerstone of the theory of international justice and change the meaning of citizenship and the practice of integration? The juridical processes of state integration that began in 1948 with the Universal Declaration of Human Rights would appear to answer these questions in the affirmative. Yet few political theorists have ventured to make political membership a central issue of the theory of global justice. Seyla Benhabib seeks to change that. “I want to argue that transnational migrations, and the constitutional as well as policy issues suggested by the movement of people across state borders, are central to interstate relations and therefore to a normative theory of global justice.” In the five chapters of her book, drawn from the Seeley Lectures at Cambridge University, Benhabib discusses concepts of political membership, cosmopolitan rights, and international justice (in the context of the works of Immanuel Kant, Hannah Arendt, and John Rawls); she studies empirical cases of membership transformation (the European politics of citizenship and integration); and she analyzes examples of integration policies (the “scarf affair” in France and Germany).

Historically, the right to exit has been synonymous with individual freedom. Dictatorial regimes commonly follow up on successful coups by closing their borders and revoking passports. But the right to enter is not similarly synonymous. Whereas forbidding exit to citizens has always been a sign of tyranny, forbidding entry to foreigners has never been so stigmatized. The asymmetry between these two rights is the sign of state power over territorial borders. In medieval Europe, exit and entry were non-issues because there were no territorial states. This was also the case in the Roman Empire, whose word for “boundaries” was limes, a term that denotes communication rather than closure in that its dual meaning is both “street” and “limit,” “frontier” and “avenue.” Limes were both porous and mobile. Whereas “boundaries” entailed closure and referred to a delimited space, limes were plastic and denoted space that could be expanded. The former term suggests geo-stability and peace, the latter geo-mobility and war. Modern state boundaries were an important innovation in comparison to imperial limes, because they were consciously conceived as a means for containing military expansion. The Peace of Westphalia was the mother of all subsequent conventions and treaties that have made peace normative and war a factual exception, sometimes unavoidable but definitely negative.

This is the historical background that Benhabib’s book presupposes. Indeed, the Westphalian age marked both a new international and a new domestic order, as issues of borders, war, and peace became inextricably intertwined with issues of membership, closure, and cultural homogeneity (or nation building, as we say today). Benhabib seeks to discuss membership from the perspective of international justice rather than of nation-state policies. She seeks to define “principles” and “practices” for regulating immigration as well as for “incorporating” aliens and redesigning citizenship according to criteria that are not ethno-cultural.

Although Benhabib’s theoretical and moral perspective is cosmopolitan, her cosmopolitanism is not meant to replace the state. She recognizes that “democracies require borders” and believes that frontiers should be porous but not mobile. One might object that if borders are too porous (and a state’s population becomes too large) they may risk becoming mobile (and the state may become expansionist). Preventing this was the rationale for strong borders. Moreover, porous borders still require some authority who decides which people get through the pores and which don’t. The fact that borders are porous does not make the state less coercive or more sensible of the rights and needs of immigrants. To address these issues, Benhabib argues that political membership claims have to be incorporated in a universal human rights regime.

The model she has in mind is the “disaggregation of citizenship within the EU,” where the entitlement to political and civil rights is no longer dependent upon national citizenship (for instance, residents are entitled to vote for the municipal government of their city even if they do not belong to the nation-state wherein their city is located). Furthermore, the EU has tried to resolve the status of “illegal” (undocumented) aliens by permitting “those whose application is still in process the right to work after three months of domicile,” before regularizing their residence. Although in an imperfect way, the EU is trying to make residence, not citizenship, the primary goal of an immigrant; residency is the basic status that brings with it certain political rights (such as the right to vote in local elections).

But should we read this as “a decoupling of national and cultural origin from the privileges of political membership”? After all, national membership is still the necessary condition for voting in both European and member states’ parliamentary elections (and in referenda for the ratification of the EU Constitution Treaty). In order to be a European citizen one needs to be, say, a Swede or an Italian, but cannot be a Senegalese. The EU has disaggregated local and national democratic accountability, but it has set these two in a hierarchical relation so that only those people who have a voice in the nation have full voice. The EU is creating a pyramidal system of legal-political belonging.

This is an original way of linking sub- and supranational government. Because not all members enjoy the same citizenship rights, however, is it truly democratic? Are resident aliens who vote for the mayor of their city as politically autonomous as the French or the Italians who gave them that right? Furthermore, grounding a right to vote on local residence seems to be more in tune with a liberal than a democratic conception of membership because it makes political rights subservient to the protection of local interests (of the guest-workers) against the taxing authority of municipal governments.

The articulation of citizenship status is a crucial issue in Benhabib’s project because she seeks to challenge our current understanding of political obligation by deepening the tension between the claims of national self-determination and universal human rights. She aims to overcome both simple models of membership that identify ethnos and demos and simple models of justice that treat the globe as if it were a borderless civil society inhabited by abstract individuals. Hence she seeks to distinguish her position from state-centered theories of international relations that appear either as strategic realism or communitarian defenses of national culture. The former is insensitive both to the complex nature of democracy and to moral universalism. The latter (articulated by Michael Walzer in his Spheres of Justice) is sensitive to democratic practices and issues of justice, but confines both within state borders and a culturally defined political community. Benhabib does not propose that we ignore the empirical fact that states exist but wants us to stress the juridical aspect of integration so as to make democratic states more open to diversity. (It seems to me that Walzer’s idea of hyphenated citizenship meets her proposal insofar as it distinguishes between cultural and political membership.) Finally, Benhabib distinguishes her position from post-Rawlsian theorists of international justice (Thomas Pogge, Alan Buchanan, and Charles Beitz), who, she argues, tend to limit their task to schemes of just distribution on a global scale and neglect the dimension of the state and membership. These theorists elide the question of whether global economic justice should be compatible with the political consent of the peoples who are the recipients of that justice and, for this reason, they underestimate both membership and democracy.

In contrast to all these theories, Benhabib believes that democracy is the key to issues of immigration. Her philosophical horizon is defined by what she calls “the paradox of democratic legitimacy,” namely the tension between the Enlightenment principle that a universal right to hospitality is due to every human person with the republican (or democratic) principle that political membership (citizenship) is essential for human beings “to have rights.” Democracy is the better way to deal with this paradox—if we mean by it not merely a form of government but a set of moral-political values and practices that make for democratic discourse. Benhabib is aware that this approach to democracy makes her task more arduous. “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 neutral historical contingencies that require no further validation.” Benhabib seeks to prove that the former is not true and the latter not desirable.

Democratic institutions and practices of negotiation, she argues, ought to be the source of political attachment for old and new citizens and integrated aliens alike, the means by which they understand how to involve themselves in representative institutions at all levels, from cities and community constituencies all the way up to the nation-state and international society. Democracy is a mode of dialogical interactions applicable at all levels: social and political, domestic and international. In order to clarify what democratic negotiations look like Benhabib mentions the cases of two nation-states (France and Germany) dealing with the “scarf affair,” in which the state sought to enforce a ban on head coverings in schools that was challenged by Muslim teachers and students who wished to wear the hijab. Leaving aside the concrete solutions to this issue, these cases involve people who are already inside the state as resident aliens or naturalized citizens and whose cultural community holds a recognized status and some degree of political power in the host country. The case of migrants who are still in the process of seeking entry is very different.

Even if they travel most of the time en masse, migrants relate to the would-be host country as single beings (they are supposed to fill out their job permit or residence application forms individually). They stand alone against the police patrolling the frontiers of the new state. In theory, the only negotiating community representing them is the UN, which, however, is juridically powerless. It is thus difficult to figure out how migrants can be the protagonists of democratic negotiations on an issue (immigration) in relation to which they have no voice, either as individuals or as members of a recognized community. Perhaps the only possible democratic scenario is that migrants constitute a cosmopolitan organization of their own strong enough to have negotiating power against each potential guest country. But Benhabib does not tell us how democratic negotiations are to occur between states and migrants. For this reason, although the expression “porous borders” captures very aptly an empirical fact (the number of legal and illegal immigrants is increasing), it does not denote a juridical change in the status of the borders; the decision on “porosity” is always up to the state. Is this in tune with democracy? Benhabib thinks it is not. Her main theoretical aspiration is that of liberating democracy from the monistic doctrine of state sovereignty. This is her most radical move, although the crisis of the sovereign state is not among the subjects of her book. The implications of this move would be extremely interesting to discuss at length. I would like to call attention to a few of them.

Benhabib criticizes the dualism between cosmopolitan rights and citizenship rights in order “to show . . . that cosmopolitan rights create a network of obligations and imbrications around sovereignty”—which is no longer an exclusionary entity. Yet, sovereignty as all-powerful and absolute has been obsolete since the Second World War. As Hans Kelsen, the jurist who contributed to the drafting of the Universal Declaration of Human Rights, wrote in 1945, “[T]he legal order of each State . . . is organically connected with the international legal order and through this order with every national legal order, so that all legal orders merge into an integrated . . . system.”

The second problem pertains to the tension between Benhabib’s acknowledgment of the role of the state and her vision of democracy that denies territoriality and ethnicity. Although it is a historical fact that no nation-state is mono-national, it could be argued that modern sovereignty is not solely responsible for this “anachronistic” dimension of politics. Even before the sovereign state became democratic, democracy was not truly de-territorialized or de-ethnicized. In ancient Athens, citizenship was autochthonía. In his Funeral Oration, Pericles described the Athenians as citizens who “were one thing with their land.” Even a multinational entity like the European Union cannot ignore its cultural and historical similarities if it seeks to become something more than a set of international treaties. Furthermore, how should we read the “deep conflict” between different views of these similarities that Turkey’s request for admission to the Europe Club has provoked among EU members? Perhaps this may be seen as an example of democratic negotiation, not only because it is still an open issue, but also because agreement, if it comes at all, will have to come from a dialectical exchange among dissenting views.

Benhabib’s expectations of democracy as dialogue and negotiation may be too high. Her argument runs as follows: if these practices have led Western countries to redefine social and political boundaries within their civil communities (via the inclusion of women and workers), why can they not also work to mitigate the impact of migrations at the international level and redefine the status of aliens and foreigners according to principles of equality and justice? This analogy is not unreasonable. Yet is it true that political emancipation on the domestic front has been achieved through democratic dialogue and negotiation? In continental Europe (as well as in the United States), the transition from subjection to political inclusion took decades of hard and sometimes bloody conflicts, with interludes (in Europe) of brutal dictatorship. Clearly our sights should always be set on the ideal of democratic practices, but let us not forget that democratic solutions to social problems have usually been the fruit of arduous struggles and harsh clashes between opposing interests. Democracy is not necessarily synonymous with peacefulness and dialogue.

Benhabib is not as “realistic” as Kant, who captured the structural tension between universal and republican ideals (between humanitarian morality and political citizenship) and acknowledged the weakness of the former vis-à-vis the latter. She pushes her normative argument further and maintains that the right to temporary residence “must be viewed as a human right.” Yet we are left with no indication of who is going to make those rights effective aside from the existing states. This observation should not be taken as a call for realism that, when it exonerates us from the burden of subjecting politics to moral judgment, resembles an inverted sermon. The fact that we distinguish analytical from evaluative judgment does not mean that we have to play them off against one another. Minds and behavior only change under the influence of evaluative judgment, critical as well as constructive. Benhabib’s book underlines how urgent it is that theorists dare to challenge “existing practices of exclusion” in the name of universal principles. Yet this is a moral critique, not yet a democratic political strategy. Duties to humanity and duty to the public are after all different kinds of obligation: the former can be universalist, but the latter requires special ties to a particular political community. Citizenship is a political identity that cannot be as abstract and ungrounded as membership in humanity. Its rights entail obligations that are not solely moral and thus not universally extendable (one might legitimately doubt that a global democratic state can exist or is desirable). But it is also an identity that educates citizens to see the Others as equals, and this is what makes democracy an open game of self-revision. Thus, rather than collapsing politics into morality, it is essential that we stress their friendly tension. This would probably allow us to avoid the conclusion that Benhabib fears, that “a discourse theory is itself chimerical insofar as democracy would seem to require a morally justifiable closure which discourse ethics cannot deliver.”

Nadia Urbinati teaches political theory at Columbia University.