Spheres of Citizenship

Theoretical Inquiries in Law

Volumn 8, Issue 2, 2007, Pages

  Blank, Yishai ^a  

^a TEL AVIV UNIVERSITY   (Israel)

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[No Author keywords available]

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EID: 34547327362     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: 10.2202/1565-3404.1156     Document Type: Review

References (121)

1. YASEMIN NUHOGLU SOYSAL, LIMITS OF CITIZENSHIP: MIGRANTS AND POSTNATIONAL MEMBERSHIP IN EUROPE (1994);
2. Linda Bosniak, Multiple Nationality and the Postnational Transformation of Citizenship, 42 VA. J. INT'L L. 979, 982-91 (2002).
3. Linda Bosniak, Citizenship, in THE OXFORD HANDBOOK OF LEGAL STUDIES 183 (Peter Cane & Mark Tushnet eds., 2005).
4. This volume offers a glimpse into the variety of spaces in which citizenship has become a useful concept of analysis and activism. See, e.g., Guy Mundlak, Industrial Citizenship, Social Citizenship, Corporate Citizenship: I Just Want My Wages, 8 THEORETICAL INQUIRIES L. 719 (2007);
5. see also Karen Knopp, Private Membership (May 2006) (unpublished workshop paper, on file with Theoretical Inquiries in Law).
6. Clearly, exceptions to this rule exist, but they are usually regarded as aberrations.
7. Both the global and the local spheres could be (and too often are) understood to be "creatures" of the state and therefore subordinate to it: localities are commonly conceived as administrative subdivisions of the state that can be cancelled at its will, and the international (often confused with the global) is conceptualized as the realm where states voluntarily agree to submit themselves to a common legal system. However, these understandings are highly contested and are far from accurate, as this Article seeks to demonstrate.
8. Peter J. Spiro, Dual Nationality and the Meaning of Citizenship, 46 EMORY L.J. 1411 (1997) (an extensive analysis of the changes in attitude towards dual nationality in the United States).
9. Jerry Frug, Decentering Decentralization, 60 U. CHI. L. REV. 253 (1993);
10. Richard T. Ford, City-States and Citizenship, in CITIZENSHIP TODAY: GLOBAL PERSPECTIVES AND PRACTICES 209 (Thomas Alexander Aleinikoff & Douglas Klusmeyer eds., 2001).
11. For an extremely helpful overview and analysis of the different trends within citizenship scholarship and various uses of the concept of citizenship, see Bosniak, supra note 1.
12. Saskia Sassen, The Repositioning of Citizenship, 3 NEW CENTENNIAL REV. 41 (2003) [hereinafter Sassen, The Repositioning of Citizenship]. Previous works by Sassen, as well as by other scholars, have amply made the point that nation-states throughout the world are currently losing their control (and monopoly) over significant segments of activities that used to be almost exclusively within their power to emerging global forces and to internal entities.
13. See SASKIA SASSEN, LOSING CONTROL? SOVEREIGNTY IN AN AGE OF GLOBALIZATION (1996).
14. ARJUN APPADURAI, MODERNITY AT LARGE: CULTURAL DIMENSIONS OF GLOBALIZATION 1-23 (1996).
15. Sassen, The Repositioning of Citizenship, supra note 9, at 41.
16. Thomas M. Franck, Community Based on Autonomy, 36 COLUM. J. TRANSNAT'L L. 41, 63-64 (1997).
17. Frug, supra note 7.
18. STEPHEN D. KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY (1999).
19. HANNA ARENDT, MAN IN DARK TIMES 81-94 (1968).
20. A citizen, argues Arendt, "is by definition a citizen among citizens of a country among countries." Id. at 81.
21. See the discussion Bosniak dedicates to Arendt's conception of citizenship in Linda Bosniak, Citizenship Denationalized, 7 IND. J. GLOBAL LEGAL STUD. 447 (2000).
22. T.H. MARSHALL, CITIZENSHIP AND SOCIAL CLASS (1949).
23. Indeed, this fact has already been observed by Marx in his famous essay "On the Jewish Question." See KARL MARX, On the Jewish Question, in WRITINGS OF THE YOUNG MARX ON PHILOSOPHY AND SOCIETY 216 (Loyd D. Easton & Kurt H. Guddat eds. & trans., 1997) (1844).
24. These are the classic reasons that public choice literature has identified as motivating states to decentralize their service-provision powers to smaller territorial units. Suspicion of central states' ability to figure out the general good and provide it to their populations has motivated the famous work of Charles Tiebout. See Charles Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956).
25. See, e.g., Reiner Bauböck, Reinventing Urban Citizenship, 7 CITIZENSHIP STUD. 139 (2003);
26. Robert A. Beauregard & Anna Bounds, Urban Citizenship, in DEMOCRACY, CITIZENSHIP AND THE GLOBAL CITY 243 (Engin F. Isin ed., 2000).
27. Clearly, this attack has come at times from distinct, if not opposite, directions. One such important strand of anti-state-centralization is the public choice theory, which has doubted the existence of a general will of the people that can be formulated and represented by the state. See Tiebout, supra note 18.
28. Indeed, this volume is a fine example of the wide range of topics for which citizenship is meaningful and constructive as a theoretical and practical lens through which to look at various pressing legal dilemmas and problems.
29. Clearly, my focus on territoriality misses important human interactions that resemble citizenship, which take place in other spheres. The same can be said of other territorial units such as private communities, company towns and communal arrangements that have not received the full political acknowledgement of the state and thus remain outside the scope of this Article. I believe that my analysis can serve as a basis for future discussions of these spheres as well.
30. See, e.g., Janine Brodie, Imagining Democratic Urban Citizenship, in DEMOCRACY, CITIZENSHIP AND THE GLOBAL CITY, supra note 19, at 110;
31. Beauregard & Bounds, supra note 19;
32. James Holston & Arjun Appadurai, Introduction: Cities and Citizenship, in CITIES AND CITIZENSHIP 1 (James Holston ed., 1999);
33. Bauböck, supra note 19;
34. KATHERINE TEGTMEYER PAK, TOWARDS LOCAL CITIZENSHIP: JAPANESE CITIES RESPOND TO INTERNATIONAL MIGRATION (2001).
35. I address the conflation, confusion and interconnection between these two types of citizenship in the following paragraphs.
36. To be clear: I do not mean to suggest that such a national public interest is something whose existence is natural or unproblematic. Indeed, it is highly contested and many doubt that it exists. However, as an ideal construction, nation-states act on the basis of such unified public interest all the time. Likewise, smaller sub-national units do not necessarily have a coherent interest or a set of clear preferences, and they too are rife with internal conflicts and competing views.
37. These are the advantages of small territorial units: territorial proximity between individuals that enables daily and random encounters; the feeling of being "stuck" together in a small place; cheaper transaction costs; greater ease in formulating common goals, purposes, and preferences; lack of circularity problems in decision-making; ability to better monitor officials; greater accessibility of the government to the people, which induces people to participate in self-rule. These are just some of the factors that seem to characterize smaller territorial units. Undoubtedly, they also stand at the heart of contemporary fascination with decentralization in general and with urban citizenship in particular. Altogether it is a strange mix of communitarian values, free-market ideology, suspicion of large government and participatory-democracy political theory that is helping to promote decentralization schemes throughout the world, often referred to as the principle of subsidiarity (according to which central governments should be limited to a subsidiary function, only acting where a more immediate local level is unable to act, or fails to do so).
38. See Roderick M. Hills, Jr., Romancing the Town: Why We (Still) Need a Democratic Defense of City Power, 113 HARV. L. REV. 2009 (2000);
39. Roderick M. Hills, Jr., Corruption and Federalism: (When) Do Federal Criminal Prosecutions Improve Non-Federal Democracy?, 6 THEORETICAL INQUIRIES L. 113 (2005).
40. Cf. Yishai Blank, The Resilience of Participation: A Comment on Prof. Hills, 6 THEORETICAL INQUIRIES L. 155 (2005).
41. Many cities and definitely provinces and cantons throughout the world are nowadays larger than unitary states were a hundred years ago.
42. This fact has been pointed out by Bauböck. See Bauböck, supra note 19, at 150.
43. Such attachments can be based on workplace, relatives, or other tangible connections to the locality. See Frug, supra note 7;
44. Ford, supra note 7.
45. Similarly, the option of granting national citizenship to everyone who resides within a country is hardly accepted anywhere as a process of naturalization.
46. Bauböck, supra note 19, at 149-50.
47. Those who obtain their national citizenship status through naturalization are usually only a small minority of the population, and monitoring the percentage of citizens-through-naturalization is - at least over the past hundred years - the concern of states.
48. It is common to have a qualification period in which the newcomer is not yet granted the full package of rights that comes with the status of a local citizen (or, as they are more commonly called, local residents).
49. On efforts in the United States to break down the linkage between national citizenship and local citizenship, see Virginia Harper-Ho, Noncitizen Voting Rights: The History, the Law and Current Prospects for Change, 18 L. & INEQ. J. 271 (2000).
50. Bauböck, supra note 19, at 149-50;
51. Harper-Ho, supra note 35.
52. Peter Spiro analyzes various federal models and their attitude towards the immigration policies adopted by their sub-national units. He finds interesting variations between the different approaches, depending on the federal model they adhere to. See Peter J. Spiro, Federalism and Immigration: Models and Trends, 53 INT'L SOC. SCI. J. 67 (2001).
53. This is a broad-brush depiction of the legal and constitutional situation, and exceptions can be found throughout the world. Scandinavian localities are one such exception, better described by the autonomous conception.
54. In Germany and Austria, for example, some localities have obtained federal status and are thus represented in national organs. See Bauböck, supra note 19, at 149-50.
55. For a brilliant and comprehensive analysis of such attempts in the United States, see David Barron, Reclaiming Home Rule, 116 HARV. L. REV. 2255 (2003).
56. This theory was developed, as already noted, by Tiebout. See Tiebout, supra note 18.
57. For a detailed analysis of public choice theory's analysis of the importance of local governments and of freedom of movement, see Yishai Blank, Brown in Jerusalem: A Comparative Look on Race and Ethnicity in Public Schools, 38 URB. LAW. 369, 380-84 (2006).
58. As already indicated, this norm seems to be waning. See Spiro, supra note 6.
59. The basic attributes of public goods are that they are non-exclusive and non-rivalrous, and thus they will not be produced by any private entity since shirking and free-riding cannot be prevented. However, there are goods that are non-exclusive and non-rivalrous in the local sphere, but other localities' residents can be excluded. Such goods are not purely public, since private actors might wish to provide them, but they can be produced by public entities such as localities. See Paul A. Samuelson, The Pure Theory of Public Expenditure, 36 REV. ECON. & STAT. 387, 388 (1954).
60. Very roughly and crudely, this is the famous "tragedy of the commons." See Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968).
61. I still need to explain why such competition would evolve at all. It can be argued that localities will have no incentive to compete with each other in order to attract citizens into their territory, since they are indifferent towards the size of their population, and as long as they can get the funding from the central government for the services they provide their residents with anyway. However, it may reasonably be assumed that this is not the case, and that most sub-national territories actually care to attract people into their territory. First, local politicians often draw their political clout from the population size, and thus they personally have an interest in enlarging their local constituency. Second, under most funding schemes, localities will be able to enjoy the advantages of economies of scale, even if the sub-national entity is formally equally funded. The money saved from an increase in the number of local residents will be directed to local causes and usually benefit the local population.
62. See GERALD E. FRUG, CITY MAKING: HOW TO BUILD COMMUNITIES WITHOUT BUILDING WALLS (1999);
63. William W. Bratton & Joseph A. McCahery, The New Economics of Jurisdictional Competition: Devolutionary Federalism in a Second-Best World, 86 GEO. L.J. 201 (1997).
64. See Blank, supra note 41, at 383-84.
65. Of this kind is the Chinese system, which imposes strict limitations on the permanent movement of citizens from one locality to another. Such restrictions are regarded as a clear indication of the legal system's tyrannical and illiberal nature. Bauböck calls such regimes "authoritarian. " See Bauböck, supra note 19, at 149.
66. See Yishai Blank, The City and the World, 44 COLUM. J. TRANSNAT'L L. 875 (2006).
67. HCJ 4112/99 Adalah v. Municipality of Tel-Aviv [2002] IsrSC 46(5) 393.
68. International Covenant on Civil and Political Rights, Mar. 23, 1976, 999 U.N.T.S. 172. The ICCPR was ratified by the State of Israel in 1991.
69. There is no doubt that money played a role in localities' opposition to the petition. Localities fought the petition since it would cost them a lot of money, which they would not receive from the state due to their incorporation as independent public corporations vested with exclusive authority over street signs.
70. Municipalities Ordinance (New Version), 1964, 9 Dinei Medinat Yisrael 256.
71. Citizenship Law, 1952, S.H. 146.
72. Baubïck, supra note 19, at 146-52.
73. Harper-Ho, supra note 35.
74. Localities in Scandinavian countries are, once again, an example of rare protection of extreme local power.
75. Bauböck, supra note 19, at 148. However, since EU citizenship does not imply a franchise in provincial or regional elections, where a city is also a region (or province) EU citizens cannot vote in its municipal elections.
76. Id.
77. Oldočba št. U-I-90/94, Uradni list Republike Slovenije št. 29/94 (Slovn.), available at http://www.sigov.si/us/eus-decs. html
78. (English translation). For a detailed description of the case, see Blank, supra note 49, at 920,
79. and Bojan Bugaric, Courts as Policy-Makers: Lessons from Transition, 42 HARV. INT'L L.J. 247, 268-69 (2001).
80. In 1998, the United Nations Center for Human Settlements (UNCHS), together with the World Association of Cities and Local Authorities Coordination (WACLAC), published a document entitled "Toward a World Charter of Local Self-Government." See U.N. Ctr. for Human Settlements (Habitat) & World Ass'n of Cities & Local Auths. Coordination (WACLAC), Towards a World Charter of Local Self-Government para. 4 (May 1998), http://www.unchs.org/ unchs/english/feature/charter.htm [hereinafter World Charter]. The document, as well as the workings of UNCHS - now called UN-Habitat - are an ongoing process to strengthen localities and "human settlements," which began in the late 1970s and has produced other pro-local documents such as the Habitat Agenda and other UN declarations. For a detailed description of this process,
81. see Blank, supra note 49, at 907-15.
82. Article 5 of the World Charter, supra note 60, states that: "Changes in local authority boundaries shall not be made without prior consultation of the local communities concerned, possibly by means of a referendum where this is legally permitted."
83. European Charter of Local Self-Government, Oct. 15, 1985, Europ. T.S. No. 122. The European Charter of Local Self-Government was issued for publication after its final drafting in 1985 in Strasbourg, in the framework of the Council of Europe. Since then it has been signed by over thirty countries, and is a prerequisite for accession by new member states to the Council of Europe and the European Charter of Human Rights.
84. Richard Ford analyzes the way in which the ambivalence between construction and recognition of local communities plays a role in U.S. local government law, and in the perpetuation of racial segregation in the U.S. in particular. See Richard T. Ford, Geography and Sovereignty: Jurisdictional Formation and Racial Segregation, 49 STAN. L. REV. 1293 (1997).
85. A few recent works analyze this development in detail. See Gerald E. Frug & David J. Barron, International Local Government Law, 38 URB. LAW. 1 (2006);
86. Yishai Blank, Localism in the Global Legal Order, 47 HARV. INT'L L.J. 263 (2006);
87. Blank, supra note 49.
88. For this seminal formulation of citizenship and its evolution, see MARSHALL, supra note 16.
89. Bosniak, supra note 2.
90. Anne Marie Slaughter makes the case for a novel conceptualization of the New World Order, in which the state is "disaggregating into its separate, functionally distinct parts." See Anne-Marie Slaughter, The Real New World Order, FOREIGN AFF., Sept.-Oct. 1997, at 183, 183-84. Though Slaughter does not mention local governments as one of these elements, elsewhere I have identified them as also operating in a similar manner to other global networks of disaggregated-state's organs.
91. See Blank, supra note 49, at 884-85.
92. An attempt to sum up these international norms would of course be futile as it amounts to summing the evolution of the entire body of international law in the past half century. For seminal analysis of the expansion of international protection of a thick catalogue of rights, see HENRY J. STEINER & PHILLIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS (3d ed. 2004);
93. JUDICIAL PROTECTION OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS: CASES AND MATERIALS (Bertrand G. Ramcharan ed., 2005).
94. The historical question whether nation-states did indeed have full sovereignty over their entire citizenry within their territory and what the limits of this professed sovereignty were is highly debatable. Some, like Stephen Krasner, argue that sovereignty is no more than a myth and that central state organs always shared their control over their citizenry and territory with other actors, both international and local. See KRASNER, supra note 14.
95. JURGEN HABERMAS, THE POSTNATIONAL CONSTELLATION: POLITICAL ESSAYS (Max Pensky trans., 2001).
96. See Bratton & McCahery, supra note 46.
97. Various international and transnational organizations have adopted this position over the past decade as well. See, e.g., THE WORLD BANK, CITIES IN TRANSITION: WORLD BANK URBAN AND LOCAL GOVERNMENT STRATEGY (2000).
98. Various states are currently using local authorities in order to manage ethnic, religious and cultural tensions. That such identities are also serving as a basis for delegating powers to localities means that the principle of domicile is being augmented - if not supplemented - by a different logic for local citizenship. Indeed, the more localities assume power and autonomy, the more they are likely to use their powers in order to de facto (or even de jure) circumvent the logic of residency and turn it into something different (be it based on identity, class, etc.).
99. Audrey Macklin, Who Is the Citizen's Other? Thinking About the Heft of Citizenship 1 (May 2006) (workshop draft, on file with Theoretical Inquiries in Law) (a revised version appears in this volume).
100. Matthew Sparke, Passports into Credit Cards: On the Borders and Spaces of Neoliberal Citizenship, in BOUNDARIES AND BELONGING: STATES AND SOCIETIES IN THE STRUGGLE TO SHAPE IDENTITIES AND LOCAL PRACTICES 251 (Joel S. Migdal ed., 2004).
101. I am clearly referring to Benedict Anderson's seminal work on the topic but also to a voluminous body of literature that has convincingly demonstrated this point. See BENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE ORIGIN AND SPREAD OF NATIONALISM (1983).
102. Other prevalent justifications for more centralized power - coordination, prevention of externalities, and economies of scale - obviously still operate to legitimate and support state power. However, I argue, they no longer justify the necessity of the state but only that of other central powers, most notably regional arrangements and international/transnational governance regimes. Thus, the state is becoming, despite such justifications, a theoretical compromise between the advantages of the local and the importance of flexible central authority.
103. Linda Bosniak powerfully analyzes the debate regarding cosmopolitan citizenship. See Bosniak, supra note 15, at 447-50.
104. See also Amy Gutmann, Democratic Citizenship, in FOR LOVE OF COUNTRY: DEBATING THE LIMITS OF PATRIOTISM 66 (Joshua Cohen ed., 1996);
105. Gertrude Himmelfarb, The Illusions of Cosmopolitanism, in FOR LOVE OF COUNTRY: DEBATING THE LIMITS OF PATRIOTISM, supra, at 72;
106. Michael Walzer, Spheres of Affection, in FOR LOVE OF COUNTRY: DEBATING THE LIMITS OF PATRIOTISM, supra, at 125 [hereinafter Walzer, Spheres of Affection]. The title of my Article clearly refers to Walzer's famous book, "Spheres of Justice," and also to his more recent article "Spheres of Affection."
107. See MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY (1983). While Walzer develops a moral and political theory of the state's obligation towards its citizens, I aim to describe and analyze the legal developments that currently take place in many countries throughout the world. Below I also criticize Walzer's refusal to acknowledge some of these developments and his insistence that the global sphere is unreal. More importantly, Walzer seems to possess a highly formal and unrealistic conception of citizenship, one which insists on naturalization processes, passports, and formal rights as necessary traits of citizenship. I hope it is clear by now that my Article goes directly against this formal conception of citizenship.
108. Indeed, these various entities, I already suggested, play a crucial role in shaping our citizenship, yet this Article focuses on the more overtly political territorial units.
109. See Martha Nussbaum, Patriotism and Cosmopolitanism, in FOR LOVE OF COUNTRY: DEBATING THE LIMITS OF PATRIOTISM, supra note 77, at 2;
110. SEYLA BENHABIB, THE RIGHTS OF OTHERS: ALIENS, RESIDENTS AND CITIZENS (2004).
111. The lack of enforcement mechanisms for international law is a problem of crucial importance here. Despite various changes in this respect, it is still fair to say that as compared to states, the decisions taken at the international plane need to be implemented by willing state agents.
112. Famous works by international legal process scholars include, for example, Harold Hongju Koh, Transnational Legal Process, 75 NEB. L. REV. 181 (1996);
113. Anupam Chander, Globalization and Distrust, 114 YALE L.J. 101 (2005);
114. Catherine Powell, The Role of Transnational Norm Entrepreneurs in the U.S. "War on Terrorism," 5 THEORETICAL INQUIRIES L. 47 (2003).
115. A powerful argument on this point was made by Eyal Benvenisti. See Eyal Benvenisti, Exit and Voice in the Age of Globalization, 98 MICH. L. REV. 167 (1999).
116. Walzer, Spheres of Affection, supra note 77, at 125.
117. International human rights law was the first area to become a major target for local enforcement efforts. Sarah Cleveland, Howard Fenton, Catherine Powell and others show that local enforcement of human rights norms has been taking place for quite a while with respect to Northern Ireland, apartheid South Africa, Indonesia, Nigeria, and Cuba. Nowadays, U.S. localities are adopting laws in compliance with international human rights norms that protect workers such as living wage municipal bylaws, and are mounting campaigns to preserve the environment and protect various minority groups such as migrant workers and gays and lesbians. For a detailed discussion, see Blank, supra note 49.
118. The danger that small and homogeneous "factions" might oppress minorities more easily was expressed most clearly in the Federalist Papers. See THE FEDERALIST Nos. 10, 46-52 (James Madison). For an elaboration of the risks of localism and the dangers of small territorial units,
119. see Richard Briffault, Our Localism: Part I - The Structure of Local Government Law, 90 COLUM. L. REV. 1 (1990).
120. On this point, see also Mundlak, supra note 3,
121. and Ratna Kapur, The Citizen and the Migrant: Postcolonial Anxieties, Law and the Politics of Exclusion/Inclusion, 8 THEORETICAL INQUIRIES L. 537 (2007).