Democratic exclusions and democratic iterations: Dilemmas of 'just membership' and prospects of cosmopolitan federalism

European Journal of Political Theory

Volumn 6, Issue 4, 2007, Pages 445-462

  Benhabib, Seyla ^a  

^a YALE UNIVERSITY   (United States)

Author keywords

Citizenship; Democratic exclusions; Democratic iterations; Immigration; Migrations and the world economy; Post national citizenship; Refuge and asylum; Right to membership; The national and the global

Indexed keywords

EID: 38849174833     PISSN: 14748851     EISSN: None     Source Type: Journal    
DOI: 10.1177/1474885107080650     Document Type: Conference Paper

References (31)

1. For one of the earliest statements, see Michael Walzer (1983) Spheres of Justice: A Defense of Pluralism and Equality. New York: Basic Books. Among early crucial statements are the following. Rainer Bauböck (1994) Transnational Citizenship: Membership and Rights in International Migration. Aldershot: Edward Elgar. Joe Carens (1995) 'Aliens and Citizens: The Case for Open Borders', in Ronald Beiner (ed.) Theorizing Citizenship, pp. 229-55. Albany, NY: SUNY Press. Cf. also Philip Cole (2000) Philosophies of Exclusion: Liberal Political Theory and Immigration. Edinburgh: Edinburgh University Press.
2. Seyla Benhabib (2004) The Rights of Others: Aliens, Citizens and Residents. The John Robert Seeley Memorial Lectures. Cambridge: Cambridge University Press. All references in parentheses are to page numbers in this edn.
3. See also Jeremy Bendik-Keymer's comments on The Rights of Others, 'Why Can't Democracies be Universal? How do Democracies Resolve Disagreement over Citizenship?', delivered during the Annual Meeting of the North American Society for Social Philosophy; printed in Science, Technology, and Social Justice, ed. John Rowan (Social Philosophy Today Book Series, vol. 22; Philosophy Documentation Centre, 2007), pp. 233-38.
4. David Jacobson (1997) Rights across Borders: Immigration and the Decline of Citizenship. Baltimore and London: Johns Hopkins University Press. Angelia Means writes of 'political liberalism's principle of closure', by which she means the work of John Rawls. But as Rawls's many statements in The Law of Peoples make clear, his position is situated somewhat ambivalently between the communitarian and civic republican ones. At various times, he uses both sets of arguments - the ones about cultural community as well as the ones about the nature of citizenship - to justify closure. John Rawls (1999) The Law of Peoples, p. 39 n. Cambridge, MA: Harvard University Press.
5. Thomas Hobbes (1994) Leviathan (1651), ed. with introduction and notes by Edwin Curly, ch. 16. Indianapolis: Hackett Publishing.
6. Nancy Fraser writes: 'Thus, instead of throwing up our hands in the face of a logical paradox, we should try to envision ways to finesse it, by imagining institutional arrangements for resolving such arguments democratically.' (2005) Reframing Justice: Spinoza Lectures, p. 33. Amsterdam: Van Gorcum. Certainly, my concept of 'democratic iterations' envisages precisely such a discursive process of critically examining and adjusting what Fraser calls 'the frame of justice claims'. However, since how to justify the 'who' involved in discussing justice claims will confront us anew with each and every frame of justice, there will always be some who are included and others who are excluded. This paradox will not go away even if the 'how' of the discussions, the procedures for inclusion and exclusion, are altered, and rendered more reflexive, as Fraser wishes them to be. While agreeing with and advocating such a process of reflexive adjustment of the frame of justice, I do not wish to conflate conceptual structures with institutional-pragmatic ones, also because, as I have clarified, the logic of representation shows that such a conflation is wrong.
7. See the moving account of immigrant activism in Corey Robin's review of The Rights of Others:
8. The point was brought home to me one Saturday night eight years ago, when I was organizing in Los Angeles around several items on the ballot... Walking door to door with a Spanish-speaking hotel worker from Guatemala, I listened to her explain to her neighbors the ins and outs of American electoral law, the powers of local versus state governments and the US Constitution. The irony was not lost on me. Not only do immigrants deepen democracy; they sometimes understand its substance and procedures better than its native proponents do.
9. Corey Robin (2006) 'Strangers in the Land', The Nation (10 April), 31.
10. The clearest formulation of the nature of the hermeneutic circle is still Hans-Georg Gadamer (1975) Truth and Method, ed. Garrett Barden and John Cumming. New York: Seabury Press; originally publ. as Wahrheit und Methode, Tübingen: J.C.B. Mohr, 1960.
11. See again the rigorous objections by Corey Robin (n. 7), p. 32.
12. To some this language requirement may seem like a nationalist stipulation which asks the immigrant to deny her original language. What I am defending is not mono-lingualism but pluri-lingualism. I envisage migrants being competent in the language of their host country as well as their own and exercising both freely. The equal right to membership imposes an obligation on the host country to offer subsidized and free language classes to all who wish to naturalize. This is not linguistic nationalism but a plea for polyglotism, coupled with a social realism in recognizing that not mastering the language of the host country marginalizes the newcomer and diminishes one's chance of successful employment and integration. Of course, there are many cases such as the Quebec province in Canada and Cataluna in Spain, where there is more than one officially recognized language. Immigrants then should be able to demonstrate competence in one or the other official languages and should not be forced to choose between them (as is the case e.g. with migrants from francophone countries to Quebec who are forbidden to naturalize unless they show French language competence). There are other cases when the nature of immigration into a particular country might reveal the necessity for multilingualism in that country and for acknowledging more than one official language. This is the current status of Spanish in the USA, which, for all practical purposes, in vast regions of the land, has become the (quasi-)official language.
13. On the 'global resource dividend' see Thomas Pogge (2002) World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms. Cambridge: Polity Press; Amartya Sen (1999) Development as Freedom. New York: Knopf.
14. This objection was first raised by Bonnie Honig in her response to my Tanner Lectures held at the University of California in Berkeley in March 2004. See Bonnie Honig (2006) 'New Facts, Old Norms: Response to Benhabib's "Reclaiming Universalism"', in the revised edition of these lectures, together with commentaries by Bonnie Honig, Will Kymlicka and Jeremy Waldron, in Benhabib (2006) Another Cosmopolitanism: Hospitality, Sovereignty and Democratic Iterations, ed. Robert Post. Oxford: Oxford University Press.
15. For an earlier statement of my position see Benhabib (1994) 'Deliberative Rationality and Models of Democratic Legitimacy', Constellations. A Journal of Critical and Democratic Theory 1(1) (April): 25-53. Revised and expanded version: Seyla Benhabib (1996) 'Toward a Deliberative Model of Democratic Legitimacy', in Benhabib (ed.) Democracy and Difference: Contesting the Boundaries of the Political. Princeton: Princeton University Press.
16. Seyla Benhabib (1992) Situating the Self. Gender, Community and Postmodernism in Contemporary Ethics. New York and London: Routledge, Kegan & Paul.
17. See Ian Shapiro (1999) Democratic Justice. New Haven: Yale University Press.
18. Robert Cover (1983) 'Nomos and Narrative', Harvard Law Review 97(1): 4-68. Frank Michelman (1988) 'Law's Republic', Yale Law Journal 97(8): 1493-1537. Aleinikoff and Sassen both point out the affinity between the concept of 'democratic iterations' and Harold Koh's 'transnational processes'. When I first developed this concept I was unaware of Koh's writings on this question, but the following statement indeed reveals the commonality in our approaches. Koh defines transnational legal processes as
19. ... the theory and practice of how public and private actors including nation-states, international organizations, and private individuals, interact in a variety of public and private, domestic and international fora to make, interpret, internalize, and enforce rules of transnational law... By focusing less on particular substantive issue areas than on the transsubstantive continuities of process, the approach emphasized that transnational law is both dynamic - mutating from public to private, domestic to international and back again - and constitutive, in the sense of operating to reconstitute national interests.
20. Harold Koh (1997) 'Why do Nations Obey International Law?', Review Essay, Yale Law Journal 106: 2599-2659, pp. 2626-7.
21. Jacques Derrida (1988) 'Signature Event Context', in Limited, Inc. Evanston, IL: Northwestern University Press.
22. Robert Cover (1983-4) 'Foreword: Nomos and Narrative', The Supreme Court 1982 Term, Harvard Law Review 97(4): 18.
23. Cover defines 'jurispathic' as follows:
24. But the jurisgenerative principle by which legal meaning proliferates in all communities never exits in isolation from violence. Interpretation always takes place in the shadow of coercion... Courts, at least the courts of the state, are characteristically 'jurispathic.'
25. Ibid. p. 40. I do not agree with Cover's sweeping claim that 'courts are characteristically jurispathic'. While the state and the courts seek to control 'the circulation of meaning' through democratic iterations, the courts' relationship to processes of norm interpretation and meaning-generation can be more creative and fluid than suggested here. For Cover 'redemptive constitutionalism' (ibid. p. 33) originates with 'nomoi communities' and social movements but rarely with formal institutions. The politics of human rights in the last three decades across the globe belies this I think. In ch. 5 of The Rights of Others I discuss the more complex interplay between courts, social movements and the public sphere.
26. Cf. for a lucid statement, Thomas Franck: Legitimacy is:
27. ... a property of a rule or rule-making institution which itself exerts a pull towards compliance on those addressed normatively because those addressed believe that the rule or institution has come into being and operates in accordance with generally accepted principles of right process.
28. (1995) Fairness in International Law and Institutions, p. 24. Oxford: Clarendon Press.
29. In the context of discussing the EU's evolving jurisprudence in matters of immigration, Sassen cites some new literature on the transfer of coordination of immigration policy from the third pillar of the EU (subject to member states' authority and the open method of coordination) to the first pillar (governed by EU community law). However, despite the provisions of the Amsterdam (1997) and Tampere (1999) Treaties which recommended these changes, legal changes in the status of third-country nationals, and the common articulation of a coordinated immigration policy, have been very slow. With the enactment of the Amsterdam Treaty as binding as of 1 May 2004, immigration legislation by individual member states is now subject to the unanimous decision of the ministers of the European Council. The sovereignty of member states is indeed reduced but not eliminated; it is up to each individual state to decide how many migrants, refugees and asylum seekers it is willing to admit within its borders. Furthermore, with the European Commission's Directive 109, which came into force in Feb. 2004, the concept of 'civic citizenship' has been enacted for members of third-country nationals. According to this directive, third-country nationals can acquire the status of 'long-term residency' after five years in their host countries, and it is recommended that they be entitled to a 'bundle of rights and duties' commensurate with those of citizens and across national borders. Some of these developments were subsequent to the publication of The Rights of Others; however, the criticisms I voiced of the then prevailing EU policy (pp. 150-2) pointed clearly towards the necessity of a 'civic citizenship' status for third-country nationals and I am delighted that official EU policy is now more consonant with these normative considerations.
30. See Seyla Benhabib (2007) 'The Twilight of Sovereignty of the Emergence of Cosmopolitan Norms. Citizenship in Hard Times', Special 20th Anniversary Issue, Citizenship Studies 11(1): 19-36.
31. See Giorgio Agamben (1998) Homo Sacer and Bare Life. Minneapolis: University of Minnesota Press. (2005) State of Exception, tr. Kevin Attell. Chicago and London: University of Chicago Press.