In Between: Immigration, Distributive Justice, and Political Dialogue*

Hans Lindahl**

Abstract: How is distributive justice possible with respect to immigration if political decisions about entry and membership cannot be grounded in the symmetry of a prior commonality, human or otherwise, that could guarantee reciprocal relations between members and nonmembers? This paper deals with both aspects of this question. Initially, it engages critically with Seyla Benhabibs plea for dialogical universalism, showing why the strong discontinuity between political and moral reciprocity precludes understanding distributive justice as the process of mediating between political particularity and moral universality. Subsequently, it suggests that a way out of this conceptual and normative impasse can be found in the fact that boundaries create a double asymmetry. This double asymmetry is constitutive for the dia of the political dialogue that separates and joins members and nonmembers. This in between, which eludes control by the parties to a dialogue, is the realm of distributive justice.

Key words: immigration; borders; distributive justice; political dialogue; cosmopolitanism

1. Introduction Immigration confronts contemporary theories of distributive justice with an intractable dilemma. On the one hand, there is a fundamental asymmetry between the positions inside and outside a polity: those within establish among themselves which aliens may enter the polity or must abandon it. This asymmetry is not only constitutive for politics and political community but also for distributive justice: there can be no authoritative distribution of rights, resources, or status in the absence of a bounded political community, the members of which determine among themselves what accrues to whom. On the other hand, the asymmetry of political reciprocity also continuously undercuts the possibility of distributive justice: as we shall see shortly, the boundaries that distinguish inside from outside, and citizen from noncitizen, are notand cannot bethe outcome of a democratic decision taken by all interested parties. Simply subordinating the entry or exit of immigrants to decisions arising from the reciprocal relations between the citizens of a polity would collapse distributive justice into the sheer positivity of positive law. Seyla Benhabib has sought to neutralize or at least to mitigate this dilemma by developing a theory of cosmopolitan justice that confronts the right to inclusion and exclusion that political communities claim for themselves with the universal validity of human rights. Immigrants, she asserts, have rights, qua human beings, that no receiving democratic polity can deny without contradicting its own moral foundations. Accordingly, the hallmark of dialogical universalism, as she calls her interpretation of cosmopolitan justice, is to avoid either

* This paper was published, unfortunately, in truncated form in Contemporary Political Theory (2009) 4, 415-434. The present version is complete. This paper was written with the financial support of the Netherlands Organisation for Scientific Research (NWO). I greatly appreciate comments to an earlier version of this paper by Zenon Bankowski, Emilios Christodoulidis, Luigi Corrias, Bonnie Honig, Ivana Ivkovic, David Janssens, Nanda Oudejans, Bert van Roermund, Andy Schaap, Neil Walker, and two anonymous referees. ** Chair of Legal Philosophy. Department of Philosophy, Tilburg University, P.O. Box 90153, 5000 LE Tilburg, the Netherlands. E-mail: H.K.Lindahl@uvt.nl; tel. + 31 13 466 3069; fax. + 31 13 466 2892.

Electronic copy available at: http://ssrn.com/abstract=1726285

simply opposing political particularity and moral universalism or reducing the one to the other. Acknowledging that there is an irreducible tension between politics and morality, her defense of the rights of immigrants advances the claim that human rights allow of mediating between these two terms. While Benhabibs account is rich and subtle, and goes a long way toward clarifying the normative problems that immigration poses for a comprehensive theory of distributive justice, this paper shows, in sections 2 and 3, that the attempt to steer a middle course between political particularity and moral universalism fails because political and moral reciprocity are not only distinct but irreducible to each other. But need we assume that the boundaries of a polity are merely the expression of particularity? Section 4 rebuts this assumption, showing that boundaries are particular and general, inasmuch as they include by excluding, and exclude by including. Expanding on this insight, section 5 argues that immigrants are party to a form of political reciprocity because no polity can close itself off from an outside without including itself and what it excludes in a more encompassing proto-political community. As political reciprocity is indissolubly linked to the first person plural perspective of a we, what conditions the legal institutionalization of this perspective is not morality or universal human rights but variations of proto-political reciprocity that shade out into more or less inchoate manifestations of a joint interest. Finally, section 6 engages critically with the idea of dialogical universalism, arguing that the dia of political dialogue involves a double asymmetry between those within and those without, and that this double asymmetry is constitutive for the in between that makes distributive justice possible. 2. Another Cosmopolitanism In a number of recent publications Benhabib has sought to outline the conditions under which immigration can be incorporated into a cosmopolitan theory of distributive justice, if we take distributive justice to include decisions about membership as much as about rights and resources. Her contribution takes an important step beyond the work of political philosophers such as Pogge and Beitz (Pogge, 2002; Beitz, 1999; Beitz, 2000). While these philosophers have moved to correct Rawls untoward reduction of the focus of distributive justice to peoples, their account of global-distributive justice for individuals neglects one of the first principles of distribution, namely the distribution of human beings as members of diverse communities. Whence the question that drives her critical reinterpretation of cosmopolitan justice: What are the principles for the just distribution of membership? (Benhabib, 2004, 22-23).1 Benhabibs answer to this question, which is part and parcel of her project of another cosmopolitanism, begins by taking issue with a brand of cosmopolitanism that in fact would do away with the problems of immigration and membership by founding a world federal state. The latter project has been endorsed by Jrgen Habermas in a well-known article about Kants essay on Perpetual Peace. Whereas Kant defends a cosmopolitan right (Weltbrgerrecht) in the framework of a federative union among independent states, Habermas argues in his article that only a world polity could provide the institutional setting necessary for cosmopolitan justice (Habermas, 2005, 168, 181). Although she does not mention Habermas by name, Benhabib shares Kants and Arendts deep preoccupation about this approach to cosmopolitanism. She insists that membership in bounded communities . . . remains . . . crucial; that democracies require borders; that the demos must assert control over a specific territorial domain (Benhabib, 2006, 20, 33, 35-36). Why the insistence on
1 Although Benhabib also distinguishes between theories of justice and theories of distributive justice, such that the former include issues of status, whereas the latter do not, I refer to distributive justice as encompassing distributive issues with respect to status.

Electronic copy available at: http://ssrn.com/abstract=1726285

boundaries as a necessaryeven constitutivefeature of political community? Although she offers several arguments, Benhabibs vindication of bounded political communities is ultimately an argument about reflexivity: boundary-setting is part and parcel of collective selflegislation. It is not only the general laws of self-government that are articulated in this process; the community that binds itself by these laws defines itself by drawing boundaries as well, and these boundaries are territorial as well as civic (Benhabib, 2006, 33). On a strong reading of reflexivity, civic and territorial boundaries are necessary because they make it possible for a manifold of individuals to identify themselves as a group and, therewith, to engage in acts of collective self-rule. Taking this argument a step further, there can be no distributive justice in the absence of a collective, the members of which determine among themselves who is entitled to what. Distributive justice, as Arendt would phrase it, presupposes bounded political reciprocity. This insight about political reciprocity bears directly on immigration: those inside determine among themselves the rules governing the entry and participation of nonmembers. Notice that this asymmetry is not suspended but in fact reaffirmed when members decide to establish free entry unless . . . as the default rule of immigration policy. But, as Benhabib notes, to settle for political asymmetry and an alleged right to inclusion and exclusion on the part of receiving democratic polities would be to overlook the condition that governs the foundation of political community. Benhabib dubs this condition the paradox of democratic legitimacy: democracies cannot choose the boundaries of their own membership democratically (Benhabib, 2006, 35). This insight echoes earlier critiques of social contract theories, which note that the preliminary problem concerning who is a party to the social contract cannot itself be solved by appealing to an earlier social contract without falling prey to an infinite regression or a petitio principi. The emergence of political community requires unauthorized acts that seize the initiative to identify what counts as the common interest and who is a party to that interest (Van Roermund, 1997, 149-150; Waldenfels, 1999, 14). Rawls is particularly vulnerable to this problem, Benhabib argues, because he takes a closed polity as the point of departure for his theory of justice (Rawls, 191, 8; Rawls, 1996. 41). His Law of Peoples continues to take this assumption for granted, albeit in the guise of a people. To the extent that social contract has no answer to the question concerning membership, his claim that a people has at least a qualified right to limit immigration begs the normative question concerning such a right (Rawls, 1971, 8; Rawls, 1996, 41). The conjunction between the paradox of democratic legitimacy and bounded political communities explains why, according to Benhabib, we need to think the problem of justice afresh, and why justice must be cosmopolitan. As to justice, the problem is this: if the act that kickstarts democratic polities, by separating member from non-member, and inside from outside, is not itself democratic, how can we avoid collapsing justice into the sheer positivity of a foundational act? Drawing on Derridas notion of iterations, Benhabib asserts that the paradox of democratic legitimacy is not only the problem but also an ingredient of its solution: although the demos, as the popular sovereign, must assert control over a specific territorial domain, it also can engage in reflexive acts of self-constitution, whereby the boundaries of the demos can be readjusted (Benhabib, 2006, 35-36). But that boundaries can be reiterated is clearly not enough, for the problem is to readjust them in a way that accounts for the interests of those who have been excluded without their prior consent. This pressing problem moves Benhabib to argue that justice must be cosmopolitan. For, at bottom, cosmopolitanism is the view that the asymmetry of political reciprocity between the members of a polity presupposes and rests on the symmetry of moral reciprocity between human beings. Moral reciprocity, Benhabib argues, takes on the form of human rights claims. In contrast with the civic and territorial boundedness of political community, human rights claims are boundlesshence universally validbecause they hold for everyone, everywhere, and everywhen.
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As such, human rights explain why the interests of those who have been excluded without their consent ought to be taken into account by a receiving democratic polity. To the extent that they institutionalize the insight that the rights of the citizens rest on the rights of man (Benhabib, 2006, 32), modern constitutional democracies have the conceptual and normative wherewithal to mediate between political particularity and moral universalism. We, the people refers to a particular human community, circumscribed in space and time, sharing a particular culture, history, and legacy; yet this people establishes itself as a democratic body by acting in the name of the universal (Benhabib, 2006, 32). Accordingly, universality, understood as the realization of the fundamental reciprocity between individuals as human beings, is the principle that allows of settling the question concerning the just distribution of membership in democratic communities, even though this principle is never fully realized nor realizable. In short, while Benhabib defends bounded political communities against those who would further the cause of distributive justice by embracing politically unmediated forms of moral universality, she also opposes those views that would render the boundaries of political community immune to moral justification (Benhabib, 2006, 19). This approach, which she calls dialogical universalism, is the lodestar of another cosmopolitanism. Cosmopolitanism, she immediately adds, is a philosophical project of mediations, not of reductions or of totalizations (Benhabib, 2006, 20).2 3. Political and Moral Reciprocity As Benhabib herself notes, the mediation between political particularity and moral universality confronts cosmopolitan right with a dilemma. On the one hand, cosmopolitan right, if it is to deserve its name at all, must bind, that is, must guide as well as being enforceable on, the actions and the will of sovereign legal and political entities (Benhabib, 2006, 26). This acknowledgment brings her perilously close to Habermas, who recognized that securing the binding and enforceable character of human rights requires their legal institutionalization.3 If human rights are to be binding for and enforceable with respect to individual states, Benhabib has to run the whole mile with Habermas, endorsing the foundation of a world federal state. But, for the reasons aduced above, she shies away from this form of cosmopolitanism, immediately adding that although cosmopolitan right trumps positive law, there is no higher sovereign that is authorized to enforce it (Benhabib, 2006, 26). The source of this dilemma is the attempt to reconcile two forms of reciprocity that are irreducible to each other. Moral norms speak to reciprocity between individuals as human beings, regardless of their political affiliation; by contrast, legally binding and enforceable norms ultimately presuppose political reciprocity. This problem crops up when, disputing Rawlss limited right to control immigration, Benhabib proceed[s] from the assumption that liberal peoples have fairly open borders; that they . . . coexist within a system of mutual obligations and privileges, an essential component of which is the privilege to immigrate . . . (Benhabib, 2004, 93, emphasis added). It is significant that Benhabib refers to a privilege to immigrate, for, under international law, there is no general right to immigration that aliens can invoke against receiving countries. So, a privilege to immigrate either presupposes political reciprocity between members, such that those inside grant outsiders leave to enter, or it draws its normative character from moral reciprocity between individuals. In the first case, the reference to a privilege does not get us beyond the status quo, as the asymmetry between the positions inside and outside continues to hold; in fact, the notion of fairly
See also (Benhabib, 2007) and other articles in the same number of the European Journal of Political Theory devoted to a discussion of Benhabibs position on immigration and distributive justice. 3 Human rights are juridical by their very nature. What lends them the appearance of moral rights is . . . their mode of validity, which points beyond the legal orders of nation-states (Habermas, 2005, 190).
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open borders (emphasis added) presupposes political asymmetry. In the second case, it reintroduces the dilemma noted above, namely, that although cosmopolitan right is held to trump positive law, there is no sovereign that may enforce the privilege to immigrate. More generally, references to cosmopolitan right as embodying norms that are quasi-legal (Benhabib, 2006, 23), or that are neither merely moral nor just legal (Benhabib, 2006, 20), highlight the discontinuity between morality and politics, but they dont bridge it. Not surprisingly, this dilemma comes to a head twice during Benhabibs discussion of human rights. The first time occurs during her analysis of Arendts famous reference to a right to have rights. According to Benhabib, the word right is used in two different ways in this phrase. The first usage evokes a moral imperative: Treat all human beings as persons belonging to some human group and entitled to the protection of the same. The second use of the term right is juridico-civil, and implies membership in a political and legal community, such that I have a claim to do or not to do A, and you have an obligation not to hinder me from doing or not doing A. Crucially, Benhabib argues that the second usage is built upon [the] prior claim of membership in the first (Benhabib, 2004, 56-57). But this alleged derivation is clearly incorrect: to acknowledge that all human beings ought to be granted membership in some politico-legal community by no means entails that this imperative would be violated if and when we were to refuse to enter into civil society with one another, that is, if we refuse to become legal consociates (Benhabib, 2004, 58-59). The reason for the discontinuity between these two sorts of rights is straightforward: the fact that you, I, or anyone else can claim a right to membership in some community in no way implies that you and I have a joint interest that we are prepared to institutionalize by way of binding and enforceable rights in a community we call our own. In this vein of thinking, to become legal consociates it does not suffice to enter into civil society with one another, as Benhabib suggests; we must compact political communityhence membershipamong us. One does not enter into civil society in the sense of a (hypothetical) compact between individuals who thereby become its members, because civil society is open to all those who wish to intervene in it, regardless of their political filiations. The point, then, is not so much that there is a difference in concretion between the first and second usages of right, such that a legal right is simply more determinate than a moral right. Rather, there is a difference in kind between the two: the latter speaks to reciprocity between individual human beings, the former to reciprocity between political equals. As Arendt puts it,
equality, in contrast to all that is involved in mere existence, is not given us but is the result of human organization insofar as it is guided by the principle of justice. We are not born equal; we become equal as members of a group on the strength of our decision to guarantee ourselves mutually equal rights (Arendt, 1973, 301).

The incongruity between moral and legal rights appears a second time, when Benhabib attempts to posit a non-foundationalist human rights discourse as the touchstone of cosmopolitan right. The core of this discourse is what Benhabib calls egalitarian reciprocity, the idea that in the sphere of morality, generality means universality; universality refers to what would be valid for all human beings considered as beings equally entitled to respect and concern (Benhabib, 2004, 133). Specific schedule[s] of rights, she argues, are derived from the egalitarian reciprocity that informs this universal principle of right. Evidently, this differentiation reproduces the general distinction between, respectively, legal and moral rights. The perplexities that arise from attempting to derive the former from the latter become apparent in a passage in which Benhabib rehearses how egalitarian reciprocity would guide a dialogue in which a member and non-member of a polity exchange reasons about whether or not the latter should be admitted to membership:
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If you and I enter into a moral dialogue with one another, and I am a member of a state of which you are seeking membership and you are not, then I must be able to show you with good grounds, with grounds that would be acceptable to each of us equally, why you can never join our association and become one of us . . . Our reasons must be reciprocally acceptable; they must apply to each of us equally (Benhabib, 2004, 138).

But this is surely to beg the question: how can I enter into a moral dialogue with you about whether you may become a member of our polity, now or in the future? After all, the whole point of the dialogue is political: you request to join our association, not an association in general. When providing you with reasons to this effect, I act as a member of the community, not as a human being. Accordingly, our dialogue is asymmetrical: when giving you reasons, I claim, explicitly or implicitly, that I and the other members of the community are entitled to determine among ourselves whether or not we will allow you to join our association, and on the basis of reasons that we regard as relevant from the point of view of our joint interest. To overcome this asymmetry, you must invoke a right to membership of some kind contained in or implied by the schedule of rights enacted by the political community to which I belong, not the fact that you and I are human beings. To conclude, Benhabibs attempt to mediate between political particularism and moral universalism by subordinating civic and territorial boundaries to the boundlessness of human rights is driven by the insight that, in the light of the democratic paradox governing the foundation of political communities, settling for political reciprocity and the asymmetries it creates between members and nonmembers, inside and outside, would amount to forfeiting an essential condition of distributive justice. I wholeheartedly support this insight. Yet Benhabibs way of dealing with this problem fails: political and moral reciprocity are discontinuous, incongruous. Accordingly, Benhabib faces a conceptual and normative impasse. Either she embraces Habermas project of a world federal state as a means of securing cosmopolitan right, but then this right is no longer the right of others, in the strong political sense Benhabib wants to retain. In this case, another cosmopolitanism would become, to borrow Benhabibs own terms, a philosophical project of reductionsby dint of collapsing morality into politicsand of totalizationsby virtue of encompassing political plurality within a single polity. Or she holds on to the particularity of political community, hence to otherness as the manifestation of difference, but then Benhabib must forfeit the strong notion of a right of others she is no less keen to safeguard. In this case, another cosmopolitanism ceases to be a cosmopolitan project. As a result, the dilemma outlined at the outset of this paper returns unabated: while political reciprocity conditions the possibility of distributive justice, it also undercuts the possibility of distributive justice.4 4. Inclusive Exclusion - Exclusive Inclusion We need to make a fresh start. To this effect, I want to begin by critically examining the assumption that governs contemporary attempts to approach immigration from the perspective of a cosmopolitan theory of justice. Indeed, Benhabib takes for granted that transcending the civic and territorial boundaries of political communities requires introducing the moral point

4 In this vein, Cohens and Sabels model of deliberative polyarchy has difficulties in dealing with the conceptual and normative problems that immigration poses for theories of democracy and distributive justice. As the authors define it, what makes deliberative polyarchy polyarchic is its use of situated deliberation within decisionmaking units and deliberative comparisons across those units . . . (Cohen & Sabel, 2005, 780; see also Cohen & Sabel, 1997). For, in terms of the paradox of democratic legitimacy, the problem is not only assuring deliberation within a pre-given unit or comparisons across units but rather what sense can be made of deliberation about civic and spatial boundaries between citizens and would-be immigrants, given the asymmetry between insiders and outsiders that governs political deliberation.

of view of reciprocal relations between human beings.5 In other words, Benhabib and others assume that political boundaries, both civic and territorial, are merely the manifestation of particularity. Here is where my own questioning begins: could closer scrutiny of the structure of the boundaries of political communities reveal that they are also the expression of generality, even if not of universality? In other words, would spatial boundaries be a specific articulation of the relation between the particular and the general, such that this articulation makes clear why and how border crossings by immigrants are thoroughly political events which call for a no less political response? Answers to these questions will be forthcoming in the following section. But those answers turn on a prior issue, which requires our initial attention: how are the spatial boundaries of a polity structured? To address this issue, I propose to return to examine more closely Benhabibs vindication of bounded political communities as an argument about reflexivity: the setting of spatial (and civic) boundaries is part and parcel of what it means for collectives to engage in acts of self-legislation. In particular, the spatial boundaries of a polity arise through a collective self-closure. On this reading of political reflexivity, acts of collective selfclosure denote those legislative acts whereby the members of a polity are deemed (1) to articulate a common interest by referring to themselves as (2) the groupthe wethat posits the boundaries of a legal space in (3) its own interest (see Van Roermund, 2003) . In an initial approximation, what renders reflexivity political is, on the one hand, the reference to a common interest whence a manifold of individuals can view themselves as a unity, and, on the other, that the acts that posit spatial boundaries claim to be the legal articulation of a common or collective interest.6 The European Union provides a good example of how this triad of elements determines the reflexive structure of legal space. This example is particularly apposite because Benhabib views the EU, perhaps the most developed post-national polity to date, as a promising illustration of the era of cosmopolitan norms, in which new forms of political agency have emerged that challenge the distinction between citizens and long-term residents, insiders and outsiders (Benhabib, 2006, 47; Benhabib, 2004, 129-170).7 Let us begin with (2). Article 1 of the Treaty of Rome, the founding treaty of the European Community, reads as follows: By this Treaty, the High Contracting Parties establish among themselves a European Economic Community . . . If Article 1 is formulated in the first person plural form, it reads as follows: By this Treaty, we, the High Contracting Parties, agree to establish among ourselves a European Economic Community. This amounts to the claim that the member states, acting as a group, jointly posit the boundaries of the European polity. Moreover, and turning to (1), Article 2 of the Treaty enumerates a series of joint or common interests to be realized by the European polity, such as a harmonious and balanced development of economic activities and a high level of employment and of social protection. It also indicates that these shared interests are to be realized through the enactment of a common market. By referring to the market as common, the Treaty of Rome transforms this economic notion into a normative and, in particular, political notion: the realization of a common market is postulated as a common interest, such that day-to-day political debate
5 Benhabib by no means stands alone here. Two prominent contributions to the debate on immigration and cosmopolitan justice that also endorse this assumption are Carens (1987) and Bader (2005). The works of Pogge and Beitz cited above also embrace this assumption, albeit in the context of a somewhat different set of problems pertaining to cosmopolitan justice. 6 This formulation encompasses both acts of constituent and of constituted power; more precisely, acts that claim to be the legal articulation of a common or collective interest have to a lesser or greater extent a paradoxical structure: acts of constituent power can only innovate if they succeed in presenting themselves as acts of constituted power. See (Lindahl, 2007) for a fuller description of the paradox of constituent power. 7 In the forthcoming I will not distinguish between the European Union and the European (Economic) Community, as nothing of importance for my paper turns on this distinction.

and conflict in the European polity turn on what determines the market as common. In this respect, what counts as a high level of employment, or as social protection, is a political, not a merely economic, issue. Notice, moreover, the twofold process of inclusion and exclusion: the act that selects certain interests as worthy of legal protection also posits a bounded space as the politys common space: the common market. The notion of a common market does not erase boundaries between member states; but it does provide a general criterion for regulating boundary crossings of goods, persons, services and capital between these states the so-called four freedoms. Henceforth, each of the places in the European polity becomes an ought-place, i.e. a place in which labor, goods, services, and the like ought or ought not to be situated. In other words, the boundaries that carve up the European legal space into a manifold of legal places make it possible to qualify individuals and their actions as emplaced or misplaced. Moreover, each of these ought-places refers to the unity of the common market and derives its meaning as an ought-place from this unity, in such a way that the renegotiation of boundaries between member states amounts to a renegotiation of the spatial unity implied in a common market. We can now introduce (3), the last element of the triad which composes the reflexive structure of a legal space. Not only do the High Contracting Parties, agree to establish among themselves a European Community, in the form of a common market, but they do so in their own interest. In effect, the point of creating the European polity is to protect and promote the common or internal market vis--vis the external market: the rest of the world. The distinction between inside and outside is not neutral: the internal market is preferred to the external market.8 More generally, the self-closure of the EC brings about what I will call a twofold first-order preferential differentiation: the Treaty of Rome prefers the internal market when differentiating it from an external market, and a we to a them, when differentiating members from nonmembers. Thus far, my account of the structure of spatial boundaries renders explicit what Benhabib and a host of other authors take for granted when arguing that boundaries are particular, namely, that boundaries include and exclude. But closer consideration of the boundaries of the European polity shows that this presupposition is reductive in two inversely correlated ways. First, by closing itself off as an inside over against an outside, the European polity also includes itself and what it excludes in an encompassing whole. In effect, by demarcating itself as an internal market over against an external market, the EC also refers to both places as located in a global market. The self-inclusion of the EU in a world market is manifested, amongst others, in the Preamble to the EC Treaty, in which the Member States express their desire to contribute, by means of a common commercial policy, to the progressive abolition of restrictions on international trade. Article 131 of the EC Treaty develops this collective intention as follows: By establishing a customs union among themselves Member States aim to contribute, in the common interest, to the harmonious development of world trade, the progressive abolishment of restrictions on international trade and the lowering of customs barriers. If the notion of a European market makes it possible for actors to identify themselves as operating inside or outside any given place within the European polity, the notion of a global market also enables those actors to identify themselves as inside or outside the European polity. Crucially, the global market is a politicalmore properly: a proto-political notion, to the extent that the Preamble to the EC Treaty, as well as its Article 131, posit both the European polity and third parties as an enlarged we that, although not institutionalized as such, nonetheless have a common interest (Article 131) in the functioning of the global market. Not only do the boundaries of the European polity refer beyond it, to the unity of a global market, but they are only intelligible as its boundaries because they locate the polity as one of a manifold of ought-places that compose a single legal space. Accordingly, the bounda8

See (Waldenfels, 1994, 197) for the notion of a preference in the difference.

ries of the European polity separate it from other polities by joining it thereto. Here, then, is a first aspect of what I will henceforth call the logic of boundaries: boundaries dont simply include and exclude; they include by excluding. This feature of the logic of boundaries is no less effectual in the case of immigration and immigration policy. To be sure, the beginnings of an immigration policy for the European polity came much later than the Treaty of Rome, namely in the so-called Area of Freedom, Security and Justice (AFSJ) enacted in the Amsterdam Treaty of 1997. It remains to be seen how far the EUs member states are prepared to go in transferring legally binding immigration policy to the European polity. It is significant, in this respect, that despite the Irish no to the Treaty of Lisbon, the European Parliament has just approved, at the time of writing this article, a controversial draft directive that includes common standards on the detention and removal of illegal immigrants. In any case, the Amsterdam Treaty and all immigration policy subsequently enacted under the aegis of the AFSJ deploy the same logic of boundaries discerned with respect to the common market. On the one hand, the EUs boundaries separate an inside from an outside, such that those within claim to have a right to determine the conditions under which aliens may enter and participate in the European polity. Here, once again, is the twofold first-order preferential distinction between inside and outside, and we and them. On the other hand, the European polity and its member states not only expect individuals inside but also those outside it to recognize and abide by the (incipient) right to closure the EU claims for itself in the immigration policy provisions of the Amsterdam Treaty and all further secondary legislation. This normative claim with respect to outsiders only makes sense because the positions inside and outside the European polity acquire their normative meaning as ought-places from the perspective of a more encompassing legal space in which citizens and aliens are deemed to have their own place. This is what makes it possible to say, for example, that legal immigrants are emplaced, and illegal immigrants misplaced. Once again the logic of boundaries kicks in: in the very process of separating the AFSJ from the rest of the world, the EUs boundaries join it thereto. In the same way that the EUs economic and commercial policies presuppose and refer to a global market, so also European immigration policy presupposes and refers to the unity of an encompassing legal space that enables the EU to claim a right to determine who may enter the polity and who ought to leave it. The claim to a common, encompassing legal space in which, in principle, everyone has her/his own place, is the indispensable presupposition of immigration policy, European or otherwise. But this is only half of the story. Indeed, by including itself and other polities within a specific institutionalization of the global market, the Treaty of Rome also excludes, to a lesser or greater extent, other ways of institutionalizing the market as a common legal space and other interpretations of what renders Europe and the globe a common legal space. It is no coincidence, therefore, that the World Social Forums clarion call, Another world is possible, has, as its correlate, the European Social Forums Another Europe is possible. Both cries contest how the current legal order institutionalizes the commonality of the European and the global market and, to a lesser or greater extent, to what extent the notion of a market ought to determine the commonality of these legal spaces. Because political commonality is always posited as a (spatially and civically) bounded commonalityeven when what is at stake is the realization of a global legal order of some sortall political claims to commonality can be contested. This has an important implication for immigration: boundary crossings by immigrants can be a way of challenging the commonality claimed for a legal space, even if this challenge is not explicitly articulated as such. Although I will discuss this case in greater detail shortly, a brief initial reference to border crossings by so-called economic immigrants may serve to illustrate this idea. In effect, when entering the EU in search of work, so-called economic immigrants, many of whom flee from conditions of desperate poverty, can be
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understood as challenging how the EUs economic and commercial policy seeks to realize the (global) common interest referred to in Article 131 of the EC Treaty. This example has lost none of its actuality in the light of the position taken by the EU in the Doha Negotiations. Acts of contestation by European citizens, on the one hand, and border crossings by economic immigrants, on the other, evoke an outside in the strong sense of places that have no place in the unity of places made available by the current institutionalization of the common interest, European and global, and yet which, on the EUs own terms, ought in some way to be a part of that unity of places. In this sense, those acts of contestation evoke a form of displacement, rather than of legal emplacement or misplacement. In such cases, Europeans who participate in the European Social Forum, and economic immigrants who enter the EU, challenge the ought-character of legal places by contesting the commonalityhence the unityof a manifold of legal places as such. Accordingly, a second aspect of the logic of boundaries becomes manifest: the boundaries of the European polity join it to the rest of a global market by separating this encompassing legal space from other possible distributions of ought-places. Boundaries, as the spatial determination of a common interest, dont only include by excluding; they also exclude by including. In the selfsame act of positing a legal space that is global by dint of covering the whole face of the earth, the Treaty of Rome also ensures that this space has an outside, as intimated in boundary crossings that challenge the claim to commonality raised on behalf of a global market. To be sure, the European Union displays a number of features that distinguish it from other polities. In particular, I would be overstretching my argument if I were to claim that all polities must invoke a global space, such as a global market, in the process of drawing their borders, or global membership, in the process of defining political membership. Instead, what I take to be constitutive for all reflexively structured political communities is that the self-closure which gives rise to a polity is never only a self-inclusion; it is also alwayseven if this only becomes apparent retrospectivelya self-exclusion.9 By the same token, the other (in the twofold sense of an outside and a nonmember) is never simply excluded from a polity; it is also included therein, in one way or another. In other words, the logic of boundaries the inclusive exclusiveness and exclusive inclusiveness of spatial and civic boundariesis constitutive for reflexively structured political communities. What I have sought to do by examining the EUBenhabibs preferred example of the promise of cosmopolitan rightis to illustrate one specific way in which this general logic is at work.10 5. From Proto-Political to Political Reciprocity
9 The logic of boundaries, as sketched out heretofore, strongly supports Bonnie Honigs claim that the temporal register of infinte progress endorsed by Benhabibs cosmopolitanism views limits as that which is always already about to be overcome. Honig correctly argues that this interpretation of limits systematically blocks understanding as such the remainders produced by every conceivable polity, including the EU (Honig, 2006, 113-114). 10 The inclusive exclusiveness and exclusive inclusiveness of boundaries both supports and challenges Rob Walkers critique of the split between political theory and international relations theory. The acuteness of Walkers diagnosis notwithstanding, the question that remains unanswered in his critique is whether the distinction between inside and outside in terms of the domestic and the foreign is constitutive for politics. The upshot of the logic of boundaries, as described in my paper, is (1) that the distinction between inside and outside is constitutive for politics in the form of the distinction between, respectively, own and strange places, and (2) that these two forms of the inside/outside distinction are irreducible to each other: if foreign places need not be strange, strange places can erupt in what a polity calls its domestic territory (Lindahl 2006). The logic of boundaries not only entails that political life occurs in space (Walker, 1993, 127, emphasis added), but also, and more radically, between spaces. As will hopefully become increasing clear in the course of the argument, my discussion of the structure of boundaries aims to make sense of the political in between at stake in border crossings by immigrants. To give a new twist to the subtitle of Walkers book, discussing the logic of boundaries in the framework of international relations would seek to understand why and how the political in between conditions the possibility of international relations as political theory (emphasis added).

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My further claim is that the logic of boundaries suggests a way out of the conceptual and normative impasse governing Benhabibs attempt to mediate between political particularity and moral universality. In effect, the foregoing analysis of how the boundaries of the EU do their work shows that Benhabibs formulation of the problem facing a theory of distributive justice is misguided. For the logic of boundaries entails that political boundaries are never only particular, as Benhabib and others take for granted. To the extent that they include by excluding, boundaries are also general. The claim to validity implicit in the idea that legal places are ought-places is intimately linked to the fact that a legal place can only appear as such if it refers to a unity of ought-places, that is, to a common space. Because boundaries can only separate if they point beyond themselves towards a whole, transcendence is constitutive for the boundaries between legal places within a polity, as well as for the boundaries between polities. Crucially, transcending the particularity of political boundaries does not require a moral supplement, as Benhabib and others assume; instead, the articulation of particularity and generality is thoroughly political. For the implication of the insight that boundaries cannot exclude without including is that nonmembers are never only outsiders; they are also already, in some sense, insiders, members of the political community. At stake, then, is not the moral justification of boundaries, nor a defense of a privilege to immigrate on the basis of the humanity shared by those within and without, but rather the political contestation of boundaries, both civic and territorial, and a political response to such contestation, in line with the concept of the political indicated at the outset of Section 4 above. The ongoing European debate about economic immigrants and their alleged abuse of political asylum law proves illuminating in this respect. The legal measures put in place in the framework of external border controls, asylum and immigration point to a sustained effort to draw and enforce a sharp line between asylum-seekers on political grounds and so-called economic immigrants. Nonetheless, the inclusive exclusiveness of boundaries suggests that the pervasive distinction between economically and politically motivated border crossings into the EU can be contested on the EUs own terms. Indeed, the EUs first-order preferential differentiation of space and membership is paired to a twofold second-order preferential differentiation: the EU prefers the global market to an indeterminate outside, and we, the participants in and interested parties to a global market, to an indeterminate them. Although one might be tempted to view the first-order preferential differentiation as political, and the second-order preferential differentiation as purely economical, the wording of the Preamble to and Article 131 of the EC Treaty invokes a common interest that is more inclusive than merely the interest of the European polity. To this extent, the second-order preferential differentiation introduced by European legislation is already political, or more properly, as I shall shortly explain, proto-political. Returning to Benhabibs rehearsal of a moral discourse about membership, the kinds of reasons that I can give, as a member of the European polity, for why you, an economic immigrant, may or may not enter or become a member of our association, are political, rather than moral. For, in terms of the Preamble to and Article 131 of the EC Treaty, the acts that decide on the legality or illegality of boundary crossings by immigrants can only claim to being reasonable in a self-consistent manner to the extent that they posit the first-order preferential differentiation between inside and outside in a way that safeguards the second-order preferential distinction as well. Notice, moreover, that the minimal form of political reciprocity posited by this second-order preferential differentiation gives rise to a new form of asymmetry, not to unlimited moral reciprocity between human beings. Accordingly, to label individuals who enter the EU as economic immigrants is to acknowledge, albeit indirectly, that their boundary crossings are political acts. More precisely, their

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boundary crossings point to a threshold of distributive justice that I will call proto-political reciprocity.11 Let me unpack this expression: I speak, first, of proto-political reciprocity, rather than of moral reciprocity, because to the extent that European immigration policy qualifies individuals as economic immigrants, it indirectly recognizes that they evoke the first person plural perspective of a we that has a shared interest in the realization of a global market. Remember that the reference to a common interest is a constitutive feature of political reflexivity. This recognition is a first and essential step toward creating the condition by which those interested in the realization of the global market can also become its subject: collective self-legislation. As politics is indissolubly linked to the first person plural perspective of a we, what precedes the institutionalization of this perspective is not cosmopolitan norms, which endow individuals [as individuals] with certain rights and claims (Benhabib, 2006, 16), but variations of proto-political reciprocity that shade out into more or less inchoate manifestations of a joint interest. Conversely, boundary crossings by economic immigrants, and the qualification of those boundary crossings by authorities as legal or illegal, illustrate the process whereby more or less inchoate manifestations of a joint interestand therewith the question concerning who is a member of the collective that engages in acts of self-legislationcan become progressively thematic. Although collective self-legislation presupposes and never abandons the first person plural perspective of a determinate we, the logic of boundaries entails that the thematic scope of this we is more or less variable. The political question concerning who has an interest in a collective, i.e. the question concerning membership, is inseparable from the process by which a class of individuals draws our interest, in the sense of individuals who arouse our attention by dint of raising claims that come to register as political claims. Arendts celebrated formula, the right to have rights, does not mean a moral right to have legal rights, as Benhabib would have it; it is, I submit, a felicitous articulation of the threshold leading from proto-political to political reciprocity. Arendts formula, on my reading, evokes the emergence or genesis of a political community, not the mediation between political particularism and moral universalism (compare with Honig, 2006, 107, and Balibar, 2003, 12). But I speak, second, of proto-political reciprocity, instead of political reciprocity tout court, because, in the case of the EU, the first person plural perspective enjoined by the process of realizing a global market has not obtained legal form by way of officials that, acting on behalf of a we, can authoritatively arbitrate about claims raised by economic immigrants. Remember that, as concerns collective self-legislation, the legal articulation of a common interest is a constitutive feature of political reflexivity. As concerns the EU, what is at stake, then, is putting in place the legal preconditions of distributive justice on issues of economic immigrants, by making the passage from proto-political to political reciprocity. To the extent that the EU has effectively transformed immigration policy into an integral part of its economic and commercial policy, the institutional framework of the World Trade Organization suggests one way, however precarious, of realizing this passage. Indeed, it would not be inconsistent with the EUs normative commitment to the realization of a global market that it agrees to the appointment of a body in the WTO that could authoritatively settle claims by economic immigrants.12

11 The forthcoming analysis is quite close to what Isin calls a genealogy of citizenship, understood as the process of becoming political, namely that moment when one constitutes oneself as a being capable of judgment about just and unjust, takes responsibility for that judgment, and associates oneself with or against other in fulfilling that responsibility (Isin, 2002, 276). 12 In a sense, this way of dealing with normative claims raised by immigration would come close, if institutionalized, to Habermass plea for a global polity that deals with issues in which a global interest is at stake. But I sharply take issue with Habermass assumption that a global democratic and constitutional polity would have no

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We can now revisit the dilemma outlined at the outset of this paper. The dilemma, you will remember, is that, on the one hand, securing distributive justice requires a legal order that identifies, first, what ought to be attributed to whom, and, second, the officials that, in the face of dispute, can authoritatively establish what ought to be allotted to whom. On the other hand, as Benhabib and others have noted, the founding act of a polity is by definition not itself democratic. This is clearly the case for the European polity: while the six founding member states claimed to represent European unity when signing the Treaty of Rome, they had received no legal mandate to this effect from all possibly interested parties, whether states or individuals, nor could they have, because the Treaty provides an initial delimitation of who is a interested party. By taking the initiative of founding the European Community, the signatories seize Europe, disclosing it as a internal market, and they seize the world, disclosing it as a global market. This paradox reappears, unabated, in the circularity that governs European immigration policy: while the EU claims a right to inclusion and exclusion for itself because Europe is the own place of its citizens, a seizure gives rise to Europe and to European citizens, to begin with (Lindahl, 2008). While a legal order is a necessary condition for distributive justice, the foundational act without which no legal orderand a fortiori no immigration policycan get going undercuts the possibility of distributive justice. The distinction and relation between a first and second-order preferential differentiation provides a way to deal with this dilemma. For there can indeed be no distributive justice without a first-order preferential differentiation: a manifold of individuals view themselves as the bounded group, both civically and territorially, that, acting in its own interest, determines what accrues to whom. Political reciprocity and suum cuique tribuere are the two sides of the same coin. At the same time, the second-order preferential differentiation implies that the acts of a collective subject that separate inside from outside, and member from nonmember, eo ipse posit a more encompassing common interest as intersubjectively constituted. In this way, the spatial and civic boundaries of a polity are not merely the expression of subjectivity, in the sense of arbitrariness, but also involve the claim to a standard of objectivityof justicewith respect to which the polity is not the sole custodian. Although distributive acts take place from the first-person person plural perspective of a spatially bounded we, acts that decide on the legality or illegality of boundary crossings by immigrants can only claim to being just, in a self-consistent way, if they posit the first-order preferential distinction between inside and outside in a way that safeguards the extended we of a second-order preferential differentiation. The inclusive exclusiveness of boundaries renders possible distributive acts that can claim to being just to the extent that the first-order asymmetry they must posit affirms and remains consistent with the second-order symmetry they must presuppose. 6. In Between Although the foregoing discussion of the logic of boundaries suggests a way of moving beyond the conceptual and normative impasse facing the attempt to mediate between political particularity and moral universality, doesnt it in fact provide a strong defense of Benhabibs larger philosophical project, namely the theory of cosmopolitan justice she characterizes as dialogical universalism? Doesnt the foregoing analysis boil down to the thesis that we can do without morality in a theory of distributive justice because the logic of boundaries allows politics on its own to do the work of connecting the particular to the universal? It seems as though the logic of boundaries is the true guarantor of the philosophical and practical viability of another cosmopolitanism. It would be the guarantor of cosmopolitanism,
outside, such that politics becomes, as he puts it, global domestic politicsWeltinnenpolitik (Habermas, 2005, 126). Although a global polity would have no outside in the sense of foreign territories located beyond its reach, or at least not initially, the inclusion and exclusion of interests required to institute the territory of a global polity would ensure that it harbors, at least latently, strange places in what it calls its own territory.

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on the one hand, because the inclusive exclusiveness of boundaries suggests that they are first and foremost bridges that enable forays of the self into the other, and of the other into the self, such that the separation between a self and its others can be overcome, in principle if not necessarily in fact, in a higher-order unity. Isnt cosmopolitanism at bottom the thesis that the separation that boundaries introduce is subordinate to the unification they facilitate? And it would be the guarantor of another cosmopolitanism, on the other hand, because it suggests that politics, not morality, articulates the particular and the universal. Yet, as I have been at pains to argue, the logic of boundaries entails that boundaries are general, not universal. This crucial restriction acknowledges that while boundaries cannot exclude without including, they cannot include without excluding. To repeat a point I made earlier, the proto-political reciprocity presupposed by the EU gives rise to a new form of political asymmetry between a second-order inside and outside, we and them. Indeed, we, the interested parties in realizing a global market, is contrasted, albeit implicitly, to an indeterminate them. This them becomes determinate when individuals contest allegiance to how the EU interprets the commonality of a global market. In the same way, an indeterminate outside becomes determinate in the form of boundary crossings that intimate ways of delineating space that have no place in the distribution of places made available in the global market, even though they in some way ought to. Accordingly, the logic of boundaries outlined heretofore recognizes that boundaries join by separating, and that this renders them permeable in the face of contestation. But it also insists that boundaries separate by joining, such that the exclusion of an indeterminate them outside is the shadow side of a greater inclusiveness. Moreover, the logic of boundaries also intimates that rather than subordinating exclusion to inclusion, or inclusion to exclusion, both aspects are equiprimordial. This insight gives the lie to the assumption of cosmopolitan theories of justice that political asymmetry can ultimately be reduced to a symmetrical relation, whether between individuals or between we and them. That the boundaries of political communities cannot include without excluding is to acknowledge that asymmetry is constitutive for politics. There is no bedrock boundless reciprocity that sustains and animates bounded reciprocity. In short, the logic of boundaries entails that distributive justice does not and cannot unfold in the form of dialogical universalism. For the kind of dialogue that ensues between those who would enter a polity and those who are called on to qualify boundary crossings as legal or illegal is irreducibly asymmetrical. But if the positions inside and outside are irreducibly asymmetrical, why call this a political dialogue? Why not call it a monologue? Isnt the second-order preferential differentiation introduced by the EU, and the proto-political reciprocity it anticipates, a particularly insidious form of a political monologue, to the extent that the EU advocates openness towards others insofar as they are like us? Isnt a political monologue, whereby one of the parties determines in advance the rules under which claims by others can be heard, contested, and accepted, the necessary implication of the exclusive inclusiveness of the logic of boundaries? On the face of it, the inaugural dilemma of a theory of distributive justice returns with a vengeance. It would seem that if a second-order asymmetry between we and them, inside and outside, is constitutive for politics, the inclusiveness of proto-political reciprocity can do nothing more than postpone the moment at which justice is sacrificed to the political and legal distribution of membership and place. So, even if Benhabibs appeal to moral universalism fails, it would seem that she is right in asserting that there can be no justice without the symmetry of a dialogue. Can the reference to a political dialogue between those without and those within be anything other than an oxymoron? Political dialogue would be indeed oxymoronic if a dialogue required symmetrical relations between the parties in dialogue. But is it not rather the case that what renders possible a political dialogue is that the dia of dia-logue speaks to a double asymmetry, rather
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than to symmetry? An answer to this question is intimately related to a question I have kept in reserve until now: how are boundary crossings by immigrants related to the acts by which authorities qualify those crossings as legal or illegal? In the foregoing discussion, I have focused exclusively on qualifying acts. Their asymmetric relation to immigration consists, as I have noted, in that such qualifications, when allowing entry and granting membership to immigrants, anticipate the political meaning of their boundary crossingas, for example, a claim concerning the commonality of the global market. The legal qualification of boundary crossings is asymmetrical because it determines in advance what it means for immigrants to cross a boundary, hence whence they are coming from and what we they invoke by entering. In this sense, legal qualifications precede boundary crossing by retrospectively deciding on their political meaning.13 But boundary crossings precede legal qualifications as well, and not merely because someone has to cross a boundary before this crossings can be deemed legal or illegal. More fundamentally, boundary crossings have a certain precedence because they never simply fit into the politys anticipation about where the immigrant is coming from nor the we that s/he invokes when entering. In other words, boundary crossings can enter from an outside in the strong sense of a place that has no place within the distribution of places made available by a polity, even though they in some way ought to, in the politys own terms, and invoke a we that bursts the extended we anticipated by the receiving polity. Inevitably, a political community must anticipate the meaning of border crossings from without in its own terms, for, without such anticipations, immigrants could not even begin to register within the proto-political community. In the absence of an anticipated commonality, political dialogue could not get started. But what renders border crossings opportunities for political dialogue, rather than a monologue, is that the anticipated commonality is never entirely borne out by crossings, never simply the fulfillment of our expectations: Do we really know in advance whether the place whence an immigrant enters the EU is only a place in a global market? Do we really know in advance whether s/he only speaks on behalf of we, the interested parties to a global market? Border crossings by immigrants pose a challenge to receiving communities because such crossings can retrospectively disrupt the anticipated commonality on the basis of which a polity draws the second-order differentiation between inside and outside, we and them, and to which a collective must respond. Hence, there is no position de survol, as Merleau-Ponty would put it, whence it would be possible to settle in advance Benhabibs question, What are the principles for the just distribution of membership? Any response we could give in advance to this question already has begun to close down possible contestations of what we deem to be common to us and those who would enter. For the disruptive potential of border crossings by aliens is something no polity can control; it is what makes border crossings by aliens irreducibly asymmetrical acts in their own right. More forcefully, this asymmetry makes it possible for boundary crossings by immigrants to un-settle or dis-locate distributive justice, intimating other distributions of inside and outside, member and non-member, that, unexpectedly, and to a lesser or greater extent, could be our own. For, as we have seen, the self-inclusion of Europe as a common market is also the self-exclusion that manifests itself in cries for another Europe. Not only are nonmembers without in some minimal sense also members within but, conversely, members within are also always in some way nonmembers without. Like any polity, the European polity harbors an outside within itself, such that, retrospectively, boundary crossings by immigrants can reveal Europe as being inside out. Thus, the possibility of justice in the distribution of places and membership does not lead back to, nor is grounded in, the symmetry of a prior commonality, human or other13 See Waldenfels (1994) for a careful study of the temporal paradoxes involved in the relation between question and response.

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wise, that guarantees reciprocal relations between the parties to that dialogue. Instead, the possibility of distributive justice depends on unexpected claims to commonality, ever provisional and ever precarious, that can emerge from the double asymmetry that joins and separates those within and those without. This double asymmetry is constitutive for the dia of political dia-logue, in the same way that it defines what it means that boundaries are in between members and nonmembers. This in between, which eludes control by members and by nonmembers, is the realm of distributive justice.

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