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Due to the impact of 'globalization' the relationship between democracy, identity and justice is being vigorously debated these days. 'Globalization' involves a major intensification of transnational economic exchanges and competition, of communications, of migration and of social and cultural interactions, all made possible by key technological advances (Falk, 1992; Held, 1995; Ruggie, 1993; Sassen, 1996). These processes facilitate fantastic technical and social creativity. However, they also have side effects that transcend borders and which can be very destructive if uncontrolled: just think of the ecological issues or the new forms of inequality generated by the intensely competitive globalized market.
International Sociology+ September 1999 + Vol14(3): 245-268 SAGE (London, Thousand Oaks, CA and New Delhi) [0268-5809(199909)14:3;245-268;009947]
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Cohen Changing Paradigms of Citizenship accordingly feel a sense of shared fate and solidarity. If, however, the collective identity of the demos is understood in civic and political rather than ethnic and cultural terms, it can, so the republican or democratic theorist argues, be open and egalitarian and, hence, neither exclusionary nor unjust (Arendt, 1973; Habermas, 1995; Miller, 1995; Viroli, 1995). I want to challenge the terms of this debate as well as the political and institutional choices it delineates. I argue that it is based on a lack of analytical clarity regarding the concept of citizenship and a questionable core assumption that both sides share, even if they evaluate it differently: that the various dimensions of the citizenship principle must be aggregated into a uniform bundle of rights and protected by the same political instance: the national state. It is this assumption that in my view generates a set of false alternatives in the face of what can only be described today as the decomposition of the paradigmatic conception of citizenship that has been hegemonic in the West ever since the democratic revolutions of the 18th century. The mutual criticisms leveled by advocates of each position often hit their mark. It is certainly easy to point out the abstractness of cosmopolitan individualism, its failure to take particular identities (political and cultural), contexts and traditions into account, as well as its quixotic effort to conjure away the discreteness of the political and to replace it with universalistic juridical relations based on the most abstract identity of all: humanity (Arendt, 1973; Cohen, 1996). Republican and democratic theorists are right to insist that 'humanity', even if positivized into 'legal personhood', is too thin an identity to motivate much mobilization, participation or solidarity on its behalf. They are also right to insist that democratic political institutions and active citizenship are indispensable for determining the common good and for protecting liberty, both public and private. The reciprocal illusions of civic republicanism are less obvious, and I come back to them later, but certainly they include a peculiar naivete visa-vis the exclusiveness, particularism and arbitrariness that are usually at work when sovereign states or sovereign citizens delimit membership in the demos and articulate the special rights of citizens. Our choice is not between liberal universalism that is focused on human rights and the rule of law US democracy construed as the sovereign selfdetermination of a people whose representatives have exclusive rule over all the affairs and inhabitants of a territory. This old antinomy between rights and democracy (reminiscent of Carl Schmitt) re-emerges today because theorists fail to adequately analyze the citizenship principle and to transcend core assumptions of a now anachronistic paradigm. Thus neither approach is able to discern what I consider to be exciting possibilities for a new paradigm of citizenship and new political forms of organization.
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Cohen Changing Paradigms of Citizenship directly or through their elected representatives the authors of the laws and procedures of decision-making by which they are bound (Petit, 1997). This strong democratic conception of citizenship puts political equality and participation at its center, but it is also particularizing and exclusionary. Indeed, it has always been associated with certain prerequisites for membership that exclude important segments of the population. It has also entailed the rule of citizen peers not only over one another, but also over non-citizens. In short, in the republican conception, the competent exercise of public autonomy requires a unique set of capacities which, until very recently, meant that only some could become equals. We all know that in the classical ideal, the citizen had to be male, of known genealogy, propertied, the head of a household and able and willing to take up arms (Pocock, 1995). Even if today the prerequisites for the democratic and/ or republican conception of citizenship have changed, no democracy is completely free of them (Pocock, 1995). The circle of people endowed with full participation rights has everywhere remained narrower than the class of persons subject to the law (Neuman, 1996). The question that must be faced, then, is whether or not exclusion is constitutive of the very ideal of democratic citizenship. Modem struggles for inclusion in the category have reconfigured the ideal of citizenship by drawing on a juridical conception derived from Roman law (Pocock, 1995). The citizen in this approach is not a political actor but a legal person free to act by law and expect the law's protection. The focus of the juridical reconceptualization of citizenship is legal standing and personal rights: the citizen can sue in court and invoke a law that grants him rights. This does not entail having a hand in making the law. Nor does it require uniformity of rights among the citizenry. The juridical dimension of the citizenship principle is thus universalizing, elastic and potentially inclusive: it is not tied to a particular collective identity, or membership in a demos, it can go well with a plurality of different statuses, and it need not be territorially bound. The universalism inherent in the juridical model of citizenship as legal personhood is open to the politics of inclusion, and it is on this basis that transnational or global citizenship is at least conceivable. Indeed, once the juridical model of citizenship is taken up by liberals in the modem era it gets equated with the practice of claiming and asserting rights, logically open to all. The push toward the global positivization of human rights is an example of this trend. However, when dominant, the juridical model seems to be depoliticizing and desolidarizing. It undermines the will to political participation, as well as the strong identification with a particular republic and the social solidarity that the democratic/ republican conception deemed so desirable (Miller, 1995).
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Cohen Changing Paradigms of Citizenship worry. I, on the contrary, argue that the exclusionary thrust of the democratic component of the citizenship principle can and should be tempered, if articulated and institutionalized in the proper way: that is, if it is decoupled from the premises of exclusive territoriality and absolute sovereignty of the political body that confers citizenship and informed by the universalistic principles of justice. For only under such conditions can the tension between democracy and justice be lessened, although I do not believe it can ever be entirely abolished.
Cohen Changing Paradigms of Citizenship intrinsic to the nation-state system. Because the nation-state equates the citizen with the member of the nation it collapses a political/legal category into a category of identity and perverts the egalitarian logic of the constitutional state by rendering those who are not members of the nation implicitly into second-class citizens. On the republican account, the problem lies in the reduction of the political principle of citizenship to a substantive exclusionary conception of collective identity: nationality. Accordingly Arendt argued for disaggregating citizenship from ascriptive criteria of national belonging (ethnic or cultural) and insisted that civil and political rights of citizens should not be allocated on the pre-political basis of nationality. States should not be nation-states but civic polities that grant citizenship on legal criteria (Arendt, 1973). Every attempt to distinguish civic from ethnic nationalism, or civic/ constitutional patriotism from nationalist communitarianism, relies on some form of this argument including contemporary theories of liberal nationalism (Brubaker, 1992; Habermas, 1995; Miller, 1995; Tamir, 1993; Viroli, 1995). The revival of this discourse in recent years is a response to the resurgence of ethno-, racialized and very illiberal or anti-democratic versions of nationalist/ cornrnunitarian identity politics. The fear that such nationalisms undermine liberal and democratic institutions motivates political theorists to draw distinctions between good and pernicious forms of political identity, and between open and inclusive as opposed to essentialized and inegalitarian criteria of belonging and access to citizenship. But we cannot leave the matter there. For there is another set of contradictions inherent in the nation-state system that Arendt noted, namely the tension between the rule of law and the concept of sovereignty regardless of whether it is attributed to the nation, to the state or to the people (the demos). Arendt understood that the attribution of exclusive territoriality and inviolable sovereignty to each nation-state over internal matters contributed to the willingness of states to deprive non-citizens of basic rights and to threaten the rights of national minorities, even if they were citizens. It is the presumed sovereignty of the territorial nation-state, however democratic, that is at the heart of the ambiguity noted above, namely whether the legal status of the rights-bearing individual is granted to all human beings or only to the citizens of a particular state. Until quite recently the dilemma was resolved everywhere in the same way: legal personhood was attached to citizenship status in a discrete state. Rights of non-citizens depended on the state's (as representative of the sovereign demos') will and on little else. Arendt and other democratic republican political theorists tried to reconcile the egalitarian universalistic principles they believed in with the discreteness and exclusionary logic of democratic citizenship in the modern paradigm in two ways: first, by applying universalism to the idea of citizenship as membership, such that 253
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Cohen Changing Paradigms of Citizenship unjust) conceptions of belonging exists within liberal constitutional democracy, between the juridical and democratic components of the citizenship principle and not only between liberal democratic constitutionalism and illiberal or anti-democratic nationalisms. To put this another way, states create nations when states are construed to be sovereign political entities that exist in a system of sovereign states, and when the demos, the citizenry, is construed as a membership organization that exercises self-determination through its own state. In short, the demos of the civic republican is, on the modem paradigm of citizenship, a nation. Second, as the case of Germany shows, federal states can still be nationstates with very restrictive rules regulating access to citizenship. Citizenship as a birthright does not redress the precariousness of the rights of non-citizens who are resident in a territory that is not their own state (Cohen, 1996). Third, as the example of the United States shows, even if they institutionalize a separation and division of powers, have a federalist structure, and positivize fundamental rights, constitutional democracies can still be sovereign entities if the international system of states (the international regime) accords sovereignty to them and to all other polities recognized as states. Such polities would still have full powers over internal affairs, over entry to the territory, access to citizenship, distribution of rights and privileges and so forth. Thus the attempt to disaggregate sovereignty by constitutionalism internally will not suffice if it is not complemented by similar developments on the supranational level (Cohen, 1996). My argument here is not intended as a critique of civic republicanism per se but as an analysis of the paradoxes of any democratic conception of citizenship in the modem paradigm and of the logic of the democratic component of the citizenship principle generally. It thus also applies to the idea of constitutional patriotism recently developed by Habermas (1992, 1995, 1996a). The latter wants to construct a liberal democratic conception that avoids the tendency of civic republicanism to thicken into communitarianism. In a series of important essays on citizenship, he offers the idea of constitutional patriotism as a way to address the problem of access to citizenship within existing states and the problem of how to construe the identity of the citizenry on the level of the nation-state or within emergent regional polities (the European Union), in a just way. Constitutional patriotism involves commitment to liberal and democratic principles and procedures of a constitution. That is all that can be required as a criterion of gaining access to citizenship. Neither cultural homogeneity nor ethnic lineage should play any role here. If, in addition, popular sovereignty is understood in procedural and communicative rather than substantive terms (as the will of a macro-subject) the exclusionary thrust of the demos can be blocked (Habermas, 1996a: 463-90).
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Cohen Changing Paradigms of Citizenship citizenship principle discussed by Marshall is on the international agenda even though each step is hotly contested and despite reversals. States are coming increasingly under the pressure of international agreements, supranational courts, transnational institutions, including regional federations, to acknowledge and protect human rights. This emergent international regime signals the diminished legitimacy of claims to exclusive and absolute territorial sovereignty of the nation-state: national constitutions, parliaments, governments and courts are no longer necessarily the highest authority when it comes to basic rights. Indeed, vis-a-vis supranational courts and the quasi-governmental bodies of regional federations, 'citizenship' has come to mean legal personhood and legal standing, not active membership in a demos delimited with respect to a territorially defined polity. The multiple levels of belonging and membership that are involved transcend the modem citizenship paradigm. I have already said that one aspect of this complex situation is the ability of persons to enjoy a wide range of rights in states in which they are not citizens and do not have or demand the same political status as full citizens. Another is the right of individuals or groups (such as indigenous peoples and minorities) who are citizens of the member states to appeal to supranational courts and other political bodies to protect their rights against their own polities. This, together with the increasing importance of the decisions made by the quasi-governmental organs developed through regional treaties, indicates the degree to which rights and powers are being disassociated from 'sovereign' states and the importance of understanding where their claims to legitimacy come from. Liberal cosmopolitans are quick to point out that civil as distinct from political society has taken the lead in reviving human rights discourses including the crucial idea that everyone has the right to have rights (legal protection and legal personhood) (Falk, 1992; Held, 1995). Claims for expanding rights irrespective of citizenship status, for new sorts of rights and for new forms of protections for rights emerge first from civil rather than from political actors (Alter, 1996). For civil society is a locus for the spontaneous development of free association, civil publics and new powers. Civil actors establish connections and relations that render economic and technological interdependencies 'social', as the proliferation today on the transnational level of a wide and highly articulated range of associations, non-governmental organizations, networks, interconnected publics and social movements witnesses. Thus a context is being created in which people can act in concert as peers, exchange opinions and develop the civic competence and trust needed for exercising influence on political entities, administrative bodies and courts. The relations established by international civil society are what carry and give political weight to the universalist dimension of human rights discourses. 259
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Cohen Changing Paradigms of Citizenship The fact that these discourses refer to the rights of man rather than citizens should not be misconstrued. It does not return us to natural law dogma, to empty abstractions, or to foundationalist forms of justification. But it does leave us with a question: if the new international institutions render discourses of human rights more effective, what serves to ground either the principle of universal human rights or particular interpretations and institutionalizations of them? In the best analysis of the political meaning and possible justification of the discourse of human rights that I know, Claude Lefort argues that it is precisely the indeterminacy of the concept of man as the subject of human rights, the impossibility of deciding once and for all the content of human rights, the fact that nobody and certainly no governmental instance can occupy the place from which one could claim full authority to grant rights, that gives to human rights discourses their 'groundless ground' and their political, creative thrust (Lefort, 1986). The indeterminacy of the discourse of human rights is its greatest advantage. Instead of opposing the 'concrete' rights of Englishmen to the rights of man like Burke, instead of attempting to show that the indeterminacy of the concept of man entails specific content - man as member of the nation, or man as the atomistic, natural, needy individual, or even man as the pouvoir constituant - Lefort suggests that one should construe human beings- the referent of such discourses- simply as those who declare and recognize one another's rights and press for their realization in law (Lefort, 1986). Human rights discourses are part of the same symbolic universe as democracy because both 'say' that we grant to one another the possibility of testing out rights which have not yet been institutionalized or incorporated in a particular body politic. The abstractness of 'man' entails the contestability of who belongs to this 'we' and what precisely his or her rights are (Lefort, 1986). Indeed it is the availability of this discourse that allows the marginalized and the excluded to claim inclusion, those who are treated unequally to challenge discrimination, and those who are silenced to exercise voice. This understanding of the discourse of human rights cannot be grounded in a transhistorical principle nor does it derive its justification from membership in a particular polity. But it has a context and a 'justification' nonetheless. In answer to the unavoidable question of 'who' man as distinct from the citizen is, Karl Marx answered that 'man' is the member of civil society. Indeed Marx was right, although he badly misunderstood the nature of the modern form of the social (Marx, 1972; Cohen, 1982). While he grasped that modern society is disincorporated, and hence can no longer be represented as a totality that transcends its parts, he nevertheless tended to base the new form of social relations on the model of the market economy. That was the mistake. Instead, one must 261
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Cohen Changing Paradigms of Citizenship at the very least the right to vote and stand for office and hence to participate (directly or though representatives) in legislation and policymaking. Citizenship from this perspective involves the exercise of power and not only of influence. But who then decides who gets to enjoy full democratic citizenship rights in this sense and on what basis? Membership in the active demos must, as we already saw, be delimited, and it has an irreducible ethical and symbolic dimension to it. Identification with one another as a demos, as a democratic community with something in common, and with a shared fate is necessary to motivate participation and solidarity among the citizenry. Moreover, the demos cannot initially be defined through democratic procedures without infinite regress regarding who is an initial member. Communitarians conclude that history and tradition supply the answers here: the identity of a demos and its thickness are not chosen but given. If the political community wishes to condition membership on commonalties formed over time, if it wishes to preserve its cultural identity through political means, it has every right to do so in this approach. The democratic civic republican, however, would insist that the relative thickness of national identity be open to democratic redefinition and, hence, could be made thinner, more open and receptive to diversity than a more traditionalist communitarian would prefer, should the demos so decide. Where the democratic conception would be 'postmodem' and 'disaggregated' from this point of view, is in the readiness (already exhibited by Arendt) to acknowledge the right of everyone to full citizenship somewhere. This is, of course, a universal moral principle that would have to constrain every demos's citizenship laws. The liberal and republican approach could converge even more if the principle of non-discrimination also informed whatever criteria the demos articulated regarding access to citizenship so as to avoid unjustifiable exclusions. Finally, there are good democratic as well as liberal grounds for avoiding the permanent presence of a large immigrant population that is permanently denied access to citizenship: this tends to tum democracy despotic (the rule of privileged 'peers' over a subject minority or even majority). Beyond these strictures, however, the understanding of the thickness or thinness of the identity of the demos would have to be left to the democratic political process to decide. This is where the democratic dimension of the citizenship principle has to lead. If, however, the above principles are observed by every self-governing democratic polity, and if the basic rights of non-citizens as well as citizens are respected and backed up by supranational instances, including their right to exercise voice in civil publics, then the exclusiveness of the demos would be tempered in an
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Cohen Changing Paradigms of Citizenship New meaning can certainly be given to the multiple levels of belonging, the various loci of identity (local, national, regional, global), the differing forms of participation and the intersecting complexes of rights, duties and loyalties that characterize multicultural polities existing in a global context. But we must honestly acknowledge that the distribution of competencies in specifying rights is an issue that can only be resolved politically. Hopefully this will be done democratically, informed as much as possible by considerations of justice. We will avoid the Scylla of foundationalism and the Charybdis of democratic despotism only if we acknowledge that substance and process, justice and democracy are in a recursive relationship to each other. The assertion of basic rights in civil public spaces requires moral justification through the giving of substantive reasons and free argumentation. An independent judiciary to protect rights is crucial. But so are democratic political institutions that legislate and make policy in light of publicly justifiable reasons (Gutman and Thompson, 1997). Democracy cannot guarantee justice, but neither can moral justification appeal to some absolute truth that exists independently of consensus. My abstract discussion of the logic of citizenship on a 'postmodern' paradigm has institutional implications. I would like to suggest that instead of assuming that the future will entail either a new system of sovereign federal mega-states, a return to liberally national nation-states, a world government, or some sort of cosmopolitan world legal order, one must imagine a combination of the elements of all of these. The idea of world government in which liberal and democratic considerations would merge is both implausible and undesirable since it would threaten political diversity. As already stated, quasi-governmental institutions must be open to the influence of civil society. Governmental structures on the national, supra- and subnationallevels must have 'receptors' for this influence. Indeed, it is entirely possible that political parties might emerge on the supranational level to supplement national parties and help to articulate and redesign political institutions in a democratic direction, as Habermas hopes. Institutional redesign that makes federations more democratic and states more open to norms articulated on higher levels and to the diversity emerging internally is also called for. But it is not necessary to envisage federations replacing the territorial state. Instead we must be open to a plurality of forums, and of modes of institutionalizing voice on the supranational level. Existing state jurisdictions would certainly retain control in many areas and be the instances that implement many rights and norms articulated on other political and legal levels (covenants, court decisions and so forth). Democratic, constitutional nation-states could remain a level of political identification for the local citizenry. But new identities and new forms of representation could follow
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Note
I thank Gerald Newman of Columbia Law School and Nadia Urbinati of Columbia University's Department of Political Science for very helpful comments on an earlier draft of this article. I also thank Jeff Alexander for inviting me to deliver this article at the plenary session on 'Ethnos and Demos' at the 1998 ISA meeting in Montreal.
References
Alter, Karen (1996) 'The European Court's Political Power: The Emergence of an Authoritative International Court in the European Union', West European Politics 19: 458-87. Arato, Andrew (1995) 'Forms of Constitution Making and Theories of Democracy', Cardozo Law Review 17(2): 202-54. Archibugi, Daniele and Held, David, eds (1995) Cosmopolitan Democracy. Cambridge: Polity Press. Arendt, Hannah (1949) 'The Rights of Man: What Are They?', Modern Review 3(1): 24-37. Arendt, Hannah (1963) On Revolution. New York: Penguin. Arendt, Hannah (1973) The Origins of Totalitarianism. New York: Harcourt Brace Jovanovich. Aristotle (1981) The Politics, ed. Ernest Barker. Oxford: Oxford University Press. Bader, Veight (1995) 'Citizenship and Exclusion: Radical Democracy, Community and Justice, or What is Wrong with Communitarianism', Political Theory 23(2): 211-46. Beiner, Ronald, ed. (1995) Theorizing Citizenship. New York: SUNY Press.
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Biographical Note: Jean L. Cohen is Professor of Political Theory at Columbia University. She is the author of Class and Civil Society: The Limits of Marxian Critical Theory and co-author with Andrew Arato of Civil Society and Political Theory. Her current project is a book on Sex, Law Privacy and the Constitution: Dilemmas of Juridification in the 'Domain of Intimacy'.
Address: Department of Political Science, Columbia University, New York City, NY 10027 (739 I.A.B.), USA. [email: JLC5@Columbia.edu]
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