Tag Archives: Habermas

A Theory of Citizenship Rights

«The same rivers are constituted by the regular flow patterns of different and different

waters which scatter and gather come together and flow away approach and depart».

(Heraclitus, Fragment 214)


«For justice exists only between men whose mutual relations are governed by law;

and law exists for men between whom there is injustice».

(Aristotle, Nic. Eth. V, 6)


«Quisquis est in territorio est de territorio. Quisquis in territorio meo est, meus subditus est».


«Citizenship is man’s basic right for it is nothing less than the right to have rights».

(Judge Warren’s dissenting opinion in Perez v. Brownell, 356 U.S. 44, 64)


«I’m not skeptical about the idea of universal human rights.

I’m skeptical about what I call positive rights».

(John Searle)


«There can be no such thing as either a creditor or a debtor race.

In the eyes of Government, we are just one race: it is American».

(Antonin Scalia, 1936 – 2016)


«The cosmopolitan moral concern is therefore better expressed in the language of rights

than in the language of democracy».

(J.K. Schaffer, Democrats Without Borders)



  1. Democracy and civil liberties

Democracy may be broadly understood both as a form of government in which all the citizens of a state are involved in making decisions about its affairs and as a political ideal that claims equality of rights, privileges and freedom for its people[1]. The first democratic principle gives citizens political agency, that is, the right to participate in the making of the laws by which they are to be governed. The second democratic principle is to treat everybody fairly by giving people civil liberties[2]. The two are bound together in that full equality of rights comes only with political agency and the status attached to it: citizenship. Therefore, to meet the requirement of a fair government, every members of a democracy should be a citizen[3].

            Several scholars highlighted the fact that the endorsement of citizenship deprivation by liberal democracies undermines both the idea of equality between citizens and the idea that citizenship constitutes a secure ground for exercising individual rights[4]. It also undermines the idea of the state as a form of protection and security offered through citizenship. Citizenship deprivation applied to certain categories of citizens[5] weakens the idea of the state as a social contract between equal members and the idea of the equality of rights and duties between citizens.

            However, in actual democratic states, the acquisition of civil, political and social rights for people not born in the state or from citizens of the state, i.e. immigrants, is disconnected from the acquisition of citizenship[6]. Civil liberties such as public education, health care or social security benefits grant people rights in function of their contribution to the state (and the reciprocity principle can also be called the contributory principle). Citizenship and political agency are derived from permanent residence in the state. The direct consequence of that disconnection is that those who compose ‘the people’ of a democratic state are not necessarily those who constitute its ‘demos’. Tomas Hammar[7] introduced the term “denizenship” to describe the status of immigrants who enjoy most rights of citizenship except that of political participation. The value of self-governing polity and equality is then threatened if some people are both considered as belonging to the state and as outsiders. This inconsistency does not necessarily mean a failure of the democratic ideal, but signifies rather a failure to approach citizenship through its cosmopolitan component. The current residence-based way of thinking citizenship for immigrants shows its conceptual limits.

            The aim of this paper is then to redefine citizenship for immigrants to avoid unjust political exclusions from political agency. It will be argued that residence is not a good ground for excluding immigrants from or granting them with citizenship. The evaluation of someone’s citizenship is closely related to political participation and reciprocity. Indeed, political participation is a right and as such its acquisition should not be considered differently from the acquisition of other rights. The contributory principle is a sufficient principle from which to evaluate both immigrants’ entitlement to civil liberties and citizenship[8]. It will be suggested that grounding citizenship on that principle would reduce the number of denizens and grant some of them with citizenship.

            This paper focuses on the difference between political rights given on the basis of the reciprocity principle and the right of political participation given on the basis of residence. This work does not intend to focus on the difference between human rights and political rights and thus human rights will be taken as political rights, they are granted on the basis of the reciprocity principle. Indeed, these rights can be understood as the first reciprocal contract made between an individual and a state. A state must recognize the dignity of each human being present in its territory.

1.2. Neo-constitutionalism and human rights

‘Neo-constitutionalism’ is a term recently suggested in legal and political philosophy to label a new perspective to look at and to discuss of law and its ontological, phenomenological and epistemological dimension i.e., its forms of identification, application and cognition[9].

            The term ‘neo-constitutionalism’ has been proposed and first used by some exponents of the Genoa Faculty of Law (belonging to the so-called “Tarello Institute for Legal Philosophy”)[10] to capture and to account for what, despite any difference in the arguments adopted and/or in the tenets maintained, emerges as a common assumption in the last two or three decades writings by legal and political philosophers as Robert Alexy, Ronald Dworkin, Carlos Nino, and, in Italy, Gustavo Zagrebelsky and Luigi Ferrajoli[11] .

            The assumption along with the very notion of law together with its forms of identification, application and cognition needs to be radically revisited because of the prominent role and pervasive influence fundamental rights. This influence has been increasing since the conclusion of the World War II in both in the domestic law of an increasing number of western countries and in international law. This is the reason whay fundamental rights have been so deeply affecting all major aspects of law and this justifies the need and presses the claim for a new understanding of its notion.[12]

            Neo-constitutionalism deserves and requires a legal positivist reading in order to account for its true distinguishing feature: the demand for a new definition of the notion of law[13]. This reading is needed because of the radical changes a great number of positive legal systems have been going through since the statement and the protection of fundamental rights have been taken to be their grounding constitutive components.

            The recognition of human rights is the most outstanding feature of contemporary legal systems, as since the middle of the 20th Century individuals are immersed in a culture of rights. Neo-constitutionalism is one among many concepts that has been used to designate and study this phenomenon. Some of the central characters of the culture of rights belonging to modern state law,[14] here referred to as ‘neo-constitutionalism’, can not be explained consistently without a reference to natural law.

‘Neo-constitutionalism’ designate a constitutional model, namely that collection of normative and institutional mechanisms realised in an historically determined legal-political system[15] which limit the powers of the State and protect fundamental rights. It can simply refers to a component of positive law and to its corresponding notion in legal dogmatics,[16] where it rather refers to an explicative model which positive law can be given because of the way legal systems may happen to be figured out.[17]

Finally, the term neo-constitutionalism can be used in the language of legal and political philosophers[18] to refer to principles and the values which it explicitly states: the fundamental rights of the European Union, described below.[19]

  1. Seeking human rights in the nature, history, enforceability and (in)determinability of European Union values

The 1992 amendments provided by the Maastricht Treaty only formulated expectations towards the EU member states by codifying fundamental principles[20]. The real tuning point was marked by the Treaty of Amsterdam. The principles laid down in Article 6 of the Treaty of the European Union served as the yardstick for evaluating the activities of the Union[21]. The 1997 treaty amendment further designated these principles as the basis of the new constitutional order of the Union: “not only a restrictive, but also a constitutive European constitutionalism found its recognition in positive law”[22].

            The Lisbon amendment renamed the fundamental principles of the Union as ‘values’ and significantly broadened their scope[23]. In the Lisbon Treaty, under the heading ‘Citizenship of the Union’, there are a series of rights, such as the right to petition the Parliament, the right to address the ombudsman, the right to good administration, the right of access to official documents and the right to free movement that are not reserved only for EU citizens but recognized to all natural persons and juridical resident or having the seat in the Union.

            The Lisbon Treaty constituted another milestone in the history of European integration, since the political union once initiated by the Maastricht Treaty was completed by awarding legal personality to the European Union[24]. After less than a decade of standby mode, the “Charter of Fundamental Rights” also became a mandatory source of law. This way, the Charter rights and principles codifying the previous fundamental law practice of the European Court of Justice, which can also be considered as the detailed elaboration of the values of the Union, became tangible  (“They leave behind their shadow existence”)[25].

            The Charter of Fundamental Rights of the European Union was solemnly proclaimed by Parliament, the Council and the Commission in Nice in 2000. It was proclaimed again in 2007 After being amended. However, the solemn proclamation did not make the Charter legally binding. The adoption of the draft Constitution for Europe, signed in 2004, would have granted it binding force. The failure of the ratification process meant that the Charter remained a mere declaration of rights until the adoption of the Treaty of Lisbon.  Following the entry into force of the Lisbon Treaty in 2009 the fundamental rights charter has the same legal value as the European Union treaties.

            The Charter contains some 54 articles divided into seven titles. The first six titles deal with substantive rights under the headings: dignity, freedoms, equality, solidarity, citizens’ rights and justice, while the last title deals with the interpretation and application of the Charter. Much of Charter is based on the European Convention on Human Rights (ECHR), European Social Charter,  and the case-law of the European Court of Justice.

            The EU has attempted to raise the profile of the Charter so that citizens are more aware of their rights e.g., the fifth title (“Citizen’s Rights”) covers the rights of the EU citizens such as the right to vote in election to the European Parliament and to move freely within the EU[26]. It also includes several administrative rights such as a right to good administration, to access documents and to petition the European Parliament.

            Article 51(1) of the Charter addresses the Charter to the EU’s institutions, bodies established under EU law and, when implementing EU laws, the EU’s member states. In addition both Article 6 of the amended Treaty of European Union and Article 51(2) of the Charter itself restrict the Charter from extending the competences of the EU. A consequence of this is that the EU will not be able to legislate to vindicate a right set out in the Charter unless the power to do such is set out in the Treaties proper. Furthermore, individuals will not be able to take a member state to court for failing to uphold the rights in the Charter unless the member state in question was implementing EU law[27].

            Another significant characteristic of the Charter is its innovative grouping of rights, whereby it abandons the traditional distinction between civil and political rights and economic and social rights. The Charter also, at the same time, makes a clear distinction between rights and principles. The latter, according to Article 52(5), are to be implemented through additional legislation and only become significant for the courts in cases involving the interpretation and legality of such laws[28].

2.1.  Values and principles in the law of the Union

By joining the European Union[29] States became part of a system of multi-level governance where  the legislative, executive and judiciary powers are shared between nations and the Union. The result is a European constitutional space, where the whole “corups iuris” of the Union appears alongside the constitutions of the member states as a sort of partial constitution[30].

            While assessing Union values and principles the relationship between such values and principles must first determined under Union law. In Art. 2, the Lisbon Treaty provides a significant amendment. The principles previously laid down in Art. 6 of the Treaty of the EU were elaborated as values and further values were added. Values are merely a “rebranding” of the previous principles of the Union, while the nature and role of the new values of the Union[31] are, however, consistent with principles. This conceptual distinction has probably been motivated by the constitutional power’s intention to set apart values from principles[32].

            Bogdandy states regarding the conceptual distinction between values and principles, that in this respect the Lisbon Treaty may be deemed problematic. Namely, it designates the fundamental principles of the EU as values and presents them as the ethical conviction of the Union citizens. Value-based discourses often tend to assume a paternalistic dimension[33]. The terminology, according to Bogdandy, is rather misleading, as values are “expressions of fundamental ethical convictions” and the values introduced by the Lisbon Treaty should in fact be recognized as legal norms and fundamental principles, given the manner of their codification and possible legal sanctions ensuing from their breach[34].

            A formalised political route on the basis of Article 7 TEU[35] and the infringement procedure initiated before the Court of Justice of the European Union[36] seem to be the two main areas of institutional relationship within the member states. A proposal will be discussed later that would open up the possibility for the individual enforcement of fundamental rights with recourse to Article 2 of the Treaty on the principle of subsidiarity (Article 5 paragraph 3 TEU) or on the principle of cooperation binding the member states (Article 4 paragraph 3 TEU) that can only be enforced via the annulment procedure or the infringement procedure before the ECJ[37].

            Another dimension with respect to which the functional theory of citizenship offers a criterion for a critical assessment of current practices concerns the temptation recurring to crush the problems of citizenship solely on ownership as mere conferment of the status, without discussing and explaining what are or should have the powers to which entitles[38]. This type of reduction is evident in the project to connect citizenship to residence which was launched on the heels of the Treaty Amsterdam, in particular the Title IV on the area of freedom, security and justice, which led to the status of long-term resident to third-country nationals.

2.2. The normativity of values and principles in the legal order of the Union

Some years ago, Robert Alexy explained that a normative system is not a legal system unless it formulates a “claim of correctness”. This occurs when governmental authorities act with the assumption that what they are doing is correct, and do not consider whether it is actually entirely true. According to Alexy, when this assumption is not formulated, and when those who govern only take a personal or a class advantage with their power, practice of what law does not amount to a legal system.[39]

            It seems evident that not just any content allocated to what is assumed as correct will attain legality for a normative system. For that reason, Alexy complements his thesis on correctness with a reference to ius-fundamental principles. The validity of the assumption of a governmental action is basically expressed through its reference to fundamental rights.

            What does this mean and when does a State recognize, identify, protect and promote rights? When does it put forth its “politics of rights” as imposed by its constitution[40]? How can human rights be consistently conceptualized, indexed, justified and interpreted[41]? In the preceding statements, each of the problems being dealt with has directly involved these questions. The answer to such questions necessarily requires appealing to instances beyond the legal texts where rights are recognized.

            Sebastian Unger’s theory states that principles only have a weakened force. For instance, those applying the laws are only required to enforce them as far as the legal and factual possibilities allow[42].

            According to Robert Alexy, the vehicle for that is discretion, with the proviso that principles should be enforced to the fullest possible extent (optimisation)[43]. As opposed to legal provisions that give clear sanctions to offences[44], Ronald Dworkin claims that principles provide arguments pointing in a certain direction, without prescribing any given decision[45].

            On the contrary, András Jakab disputes that rules and principles should be distinguished on the basis of their normativity. “We should assume that the so-called principles have the same type of normativity is merely their scope that is uncertain because of the vague and general expressions contained in their linguistic form”. Following Jakab’s theory[46], principles also share the fate of legal rules, in that there are only two possibilities: they are either breached or not, tertium non datur. The fact that the breach of a principle can only be established by way of appreciation (balancing) is only a methodological question and has no bearing on the normativity of principles. Principles are not enforced by way of optimisation, since that is rather the result of the application of rules and principles to specific cases (judicial balancing).

            Whether the theory of Alexy and Dworkin are accepted or Jakab’s approach to principles is chosen, it can be stated that principles possessing normativity and the fact that their normativity is disputed do not change the fact that in practice they are applied by way of judicial balancing.

            What are the obligations imposed by a EU principle on the national legislator? The legislator can only restrict the prevailing principles in the interest of achieving appropriate “legitimate” objectives. The jurisprudence related to facts that fall under the scope of EU law shows that the Court of Justice of the European Union examines the legitimacy of the objectives stated by the member states as well[47]. If an objective is unfounded (e.g., it is an economic objective or one that could be achieved without intervention), the restriction imposed by the member state is unlawful. It is nevertheless important to stress that the member states enjoy a broad margin in specifying the objectives of the policies they pursue[48] this is especially true about regulatory issues that have remained under the purview of the member states. In response to any risks or needs, the legislator automatically assesses the necessity and extent of intervention. The legislator is to observe the principle of proportionality in the realisation of their objectives: i.e., according to Alexy’s approach, besides the restrictions created by the regulations, the governing principles must prevail to the fullest possible extent or, according to Jakab’s views, the restriction must be legitimate.

            While the regulatory activities of the legislator of the Union are bound by the values and principles of the Union, national legislators are bound by a double obligation. The national legislator is also bound by the principles enshrined in the national constitution as well as the values of the Union. A good two fold commitment example is the verdict of the Bundesverfassungsgericht on the adoption of the European Arrest Warrant[49].

            Focusing on independently-verified leading cases globally, a combination of qualitative and quantitative analysis offered, as evidenced, the most comprehensive and systematic account of constitutional reasoning to date. “Despite substantial academic attention to the rise of judicial power, citizens know fairly little about how newly empowered courts interpret their constitutions and justify their decisions. To what extent is the language of judicial opinions responsive to the political and social context in which constitutional courts operate? Courts are reason-giving institutions, with argumentation playing a central role in constitutional adjudication. However, a cursory look at just a handful of constitutional systems suggests important differences in the practices of constitutional judges, whether in matters of form, style, or language”, stated (just some month ago) Jakab, consistent with Dyevre and Itzcovich’s legal approach[50].

2.3. The mixed nature of Article 2 in the Treaty of the European Union

The 2011 congress of FIDE has pointed out another interesting aspect of the relationship between the Charter of Fundamental Rights and Article 2 of the Treaty on European Union. It is with regard to disputed human rights that are not included in the Charter, such as the rights of minorities as,  Article 2 of the Treaty on European Union that could provide a basis for the protection of rights. The quite mixed nature of the values of the European Union presents an interesting problem[51]. Certain principles that wholly correspond to those provided by the Charter – e.g., the respect for human dignity -, while others appear as horizontal values that can be associated with several fundamental rights e.g., democracy. This means that “the values or principles found in the constitutional rights apply not only to the relation between the citizen and the state but, well beyond that, to all areas of law”[52]. This results in a radiating effect of constitutional rights over the entire legal system constitutional rights become ubiquitous.

            However, the Court of Justice of the European Union has not rendered any such judgements. This approach also coincides with the position of jurisprudence on the delimitation of the principles and rights laid down in the Chapter of Fundamental Rights: as opposed to the subjective rights provided by the Charter. Principles themselves cannot as such be invoked with direct effect before a national judge[53].

            As a result of the mixed nature of Article 2 TEU (i.e., fundamental rights and constitutional principles appear alongside each other), von Bogdandy splits Article 2 of the European Union between fundamental rights and other constitutional fundamental principles. Breaches against the latter principles can result in infringements of the constitutional values consolidating the constitutional fundamental principles[54], rather than violations against individual fundamental rights.

            From the analytical point of view, the complaints of those who deny the concept of citizenship are not very different from those, who deny the existence of rights as mere ideological constructs which is more common in the theoretical realist of law and absent in the world experience. In particular,  even thought it appears cryptic, the Kelsen’s formula, intends to allude here that legal institutions, such as ‘citizenship’, offer a case of intermediate terms. It may well argue that “citizenship” is a term that means nothing and is free semantic reference. However, it serves its purpose to count as a “technique presentation”.

2.4 Jürgen Habermas and his theory of “Citizenship and National Identity”

In view of the European crisis, Jürgen Habermas, acknowledged as one of the world’s most outstanding sociologists and philosophers, has brought his prestige and powerful eloquence. He had a considerable influence on the EU with his views concerning citizenship and, particularly, his ideas with regard to how Union citizenship and European identity could be established beyond the boundaries of Member States.  His countless public interventions have been published Europe all over in many languages. ”Democracy is at stake”, he has repeatedly warned, and Europe risks establishing a post-democratic regime of “executive federalism”.

           These drastic messages, however, are always accompanied by signals of hope and political appeals. He encourages listeners to view the crisis as an opportunity to strengthen the European project. The “strength” which he advocates is not merely Europe’s managerial potential and according to Habermas, “more Europe” also means deepening Europe’s democratic credentials[55].

            In contrast to so many commentators on the debate regarding the financial crisis and the future of Europe, Habermas, in his passionate pronouncements, pursues a demanding and coherent agenda based upon his long-terms explorations on the various facets of the European project. His work on this theoretical basis started with the essay Citizenship and National Identity,[56] just prior to the publication of his magnum opus on legal theory. Since then, Habermas has been ceaselessly devoted to the European project, both as a citizen and as a theoretician. As a theoretician, he conceives of the process of Europeanization as a challenge to his theory of the democratically constituted nation-state. From the perspective of a citizen, he views the process as a response to the catastrophes of the Twentieth century, for which Germany bears so much responsibility[57]. This intent is manifested in the project, as well as in the objective to defend democratic welfare-state accomplishments in the processes of globalization and European integration.

            As a theoretician on the constitutionalization of Europe, Habermas seeks to accomplish a type of analysis that not only grasps the facility of the processes of Europeanization but also achieves a normative concept that provides criteria and identifies the institutional conditions about whether the configurations emerging in the process of Europeanization “deserve recognition.”[58]

            In his more recent interventions as a citizen, Habermas has approached this aspiration again. He identifies the institutional causes for the crisis and states his polemics against the crisis management in Europe in terms that critically transform Schmitt’s affirmative observations on the steadily growing power of the executive into critical objections to the present course of the process of Europeanization. “Post-democratic executive federalism” is the term he uses to denote – and to criticize – Europe’s praxis. The European Union must not continue on the path it has taken due to the pressure of the crisis, but cease to coordinate the relevant policies in the governmental-bureaucratic style which has been customary until now and take the path of adequate democratic legalisation[59].

            The theoretical core of Habermas’s essay is in the reasons he gives for this postulate[60], in which Habermas specifically continues deliberations by Armin von Bogdandy, Claudio Franzius, and Ulrich K. Preuß.[61] He places a dual role for Europe’s citizens alongside the recognition that these rights are equally rooted in the democratic constitutional state[62]: they remain citizens of their states, but also become citizens of the Union[63]. With this construct, Europe’s ability to be a democracy becomes more theoretically plausible. In addition, however, the construct promises to provide criteria for democratic constititionalization of European governance and to come to terms with his functional requirements. Yet it is just at this point that it remains partially undefined. It is difficult to imagine which institutional architecture might satisfy Habermas’s normative ideas. As long as extreme uncertainties as to the causes of the crisis and the possibility of its democratic cure persist, it is even more difficult to understand which kind of practical guidance they might provide[64].

            Citizens are witnessing, instead, a reemergence of age-old animosities in Europe, the rise of populist movements and an erosion of the legitimacy of the governments in the countries that are most deeply affected by the crisis. It remains unclear how a political European leadership with secure democratic legitimation could be established. “Until these questions and problems are addressed”, American political scientist John McCormick noted in much more tranquil times, “Schmitt’s work and career haunts the study of European integration like a spectre”[65].

            So far it has proved difficult, if not impossible, to have a full and inclusive debate on the lofty ideal of ‘political union’ while the Eurozone crisis is still in its emergency phase. As long as this state of emergency persists, European politicians and officials will continue to be heavily focused on the pragmatic, day-to-day steps that, in their opinions, are necessary to save it.

            The notion of citizen is usually defined in relation to a national state’s sovereignty and its borders. Conservatively, citizenship has been supposed to be a national phenomenon and has been characterised as an institution or set of rights situated within the community of the nation state. However, this hypothesis in citizenship literature has been disregarded in the last two decades. Scholars from different social science disciplines have begun to postulate that citizenship is incrementally turning to non-national forms. In this regard, Habermas sympathizes with this idea.

            To summarise, in Citizenship and National Identity: Some Reflections on the Future of Europe, Habermas  examines the relationship of Capitalism and democratic citizenship. He believes that the market has its own independent logic that is separate and independent of the intentions of its human subjects/citizens. Actual society can see the free market hasn’t necessarily lead to the freedom of the people in the market, or the freedom of capital (for that matter). The economic structure, or lack thereof, created by human subjects, cannot constrain the creative and destructive power of international capital, and no person can foresee the movements of capital beyond their own control. The legislative, administrative, and judicial arms of the government become involved in the control of capital by passing laws that incorporate specific rules and regulations, whereby money becomes the basis for our interactions (have you accomplished anything today without the use of money?). This coalescence of the government, capital, and nation state is what Habermas terms “system integration.”


  1. Civil liberties and the reciprocity principle

If immigrants are admitted on a legal agreement basis, host states ought to give them the rights that correspond to the degree of membership that the agreement grants them[66]. This section explains briefly what this principle consists of in democratic states, like in Europe[67] or North America[68].

            For example, visitors and tourists must enjoy universal human rights[69] such as security. Human rights are the necessary rights[70] given to anyone traveling in a foreign state. Strictly speaking the traveler is not contributing to the state’s affairs but in virtue of their membership to the human kind, they are recognized as belonging to the host society and as such are eligible to what the author calls the “minimal reciprocity rights” that is human rights[71].

            Similarly, temporary workers must enjoy the benefits that are directly tied to their work on the top of human rights, and as just stated, are directly entitled to human rights in virtue of their membership of human race. Their membership is upgraded in the sense that  they are working in and for the host state hence they contribute to the state’s economy. This supplementary contribution must be acknowledged by the host state. Temporary workers are eligible to rights concerning working conditions (health and safety regulation, minimum wages, overtime pay, paid holidays and vacations) and social programs related to their work and to their temporary domestic status (unemployment compensation, health care, education).

            Generally speaking, the contributory principle works as a way to recognize immigrants’ affiliations with the host state. A visa is a conditional authorization granted by a country to a foreigner, allowing them to enter, temporarily remain within, or to leave that country. Visas typically include limits on the duration of the foreigner’s stay, territory within the country they may enter, the dates they may enter, the number of permitted visits or an individual’s right to work in the country in question. Visas are associated with the request for permission to enter a country and thus are, in some countries, distinct from actual formal permission for an alien to enter and remain in the country. In each instance, a visa is subject to entry permission by an immigration official at the time of actual entry and can be revoked at any time[72].

            A visa is most commonly a sticker endorsed in the applicant’s passport or other travel document. The visa, when required, was historically granted by an immigration official on a visitor’s arrival at the frontiers of a country, but increasingly today a traveller wishing to enter another country must apply in advance for a visa, sometimes in person at a consular office, by mail or over the internet. The actual visa may still be a sticker or a stamp in the passport or may take the form of a separate document or an electronic record of the authorisation, which the applicant can print before leaving home and produce on entry to the host country. Some countries do not require visas for short visits. In many practical contexts, forms of proxy, such as the passport, are obviously used, but citizenship should be taken strictly distinguished from what the attests. A student permit commits the immigrant to go to school as such as residing in the host state. In exchange the host state guarantees the immigrant rights tied to studying conditions and domestic ones. Rights are granted on the basis of a reciprocal relationship between the immigrant and the host state[73].

            The bigger that reciprocal relationship is, the bigger the membership to the state is, the more rights the immigrant gets[74]. For instance, Ayelet Shachar, in The Birthright Lottery: Citizenship and Global Inequality, argues that citizenship acquired by ius soli in an affluent society it can be thought of as a form of inheritance: a entitlement value, transmitted by law, to a select group of recipients conditions that perpetuate the possibility of transferring the ‘good’ to their heirs.

            For reciprocity and the theme, if immigration, Dora Kostakopoulou agrees that liberal political theory is based on the belief that individuals, irrespective of their class, caste, race, gender, nationality and so on, deserve equal respect and concern. In practice though, liberal democracies offer the right to participate in society on equal and fair terms and to profit from its goods on an equal basis only to those people who are recognized as citizens belonging to a particular nation-state. Migrants, for instance, are excluded from the benefits of reciprocity, they are expected to contribute to society by working, paying taxes and respecting the law, but they are not granted full social and political rights. They are accepted as full-fledged members of society that enjoy the rights of citizenship only after an exhausting and degrading process of integration and naturalization. Objecting to this national conception of reciprocity, Kostakopoulou pleads for a more comprehensive understanding thereof, according to which people should acquire membership (and all the rights it entails), not so much on the basis of their nationality, but due to their valuable contribution to a particular community. Diversity and pluralism should be welcomed in society and not suppressed. Community is a dull affair without disagreements, different beliefs, diverse imaginations and conflicts.

  1. Citizenship, time and space from Hobbes to Rawls

According to traditional political thinkers[75] (from Hobbes[76] to Rawls[77]), the state is a territory, a place, a delimited area for equal rights. In such a political space, all citizens are equal and this condition seems to be and to remain invariable in time. In such a case, the state is the privileged space for individual and social rights realized through citizenship. Citizens constitute a group of equal members[78], which share rights and duties within the political community. Indeed, Hobbes[79], Montesquieu and Locke identify the state as a form of protection and security offered to the individual through citizenship. Despite the fact that they differ in the object of this protection (life for Hobbes, family for Montesquieu, and property for Locke etc.) all of them conceived the state as a closed entity in which citizens are equal in rights and duties[80].

           Recently scholars such as Cohen, Bosniak and Carens[81] redefined such a traditional approach to citizenship focusing on the permeability of state borders and the moral issues raised by the presence of different membership statuses in liberal democracies[82].

           The political philosophical debate shifted from state-citizenship dualism in a closed society to flexible and uncertain plural membership in a globalized and interconnected world[83]. Such an approach raises several questions of fairness and justice related the presence of different membership statuses in liberal democracies. Nevertheless, within such a plurality of memberships, full citizenship remains traditionally considered a secure and safe membership status with a strong bundle of rights[84]: an ideal concept in which rights are protected and safe, particularly in comparison with other forms of membership in liberal democracies such as migrant membership.

           Within this framework, it is argued that some citizenship statuses[85] such as naturalized or dual citizenship can be precarious and limited and the acquisition of such statuses does not represent a secure and stable ground for rights. The limits and precariousness of citizenship are discussed in the framework of space and time.

           The body politic relates to time and space. It refers to time because it is a defined entity in time (it has a start and an end) and maintains itself in time. It relates to space because the state needs a particular territory in order to exist. As well as the state, citizenship refers to time and space. Indeed, if the state is a stable entity in space and time, the same consideration applies to citizenship. Citizenship could be considered an immutable, permanent given status (time) related to a certain territory (space). Thus, citizenship is a status defined by acquisition (time) and by territorial boundaries (space)[86].

            Citizenship exists in time and space but it is also limited by time and space. The first limit of citizenship is territory (space). Citizenship relates to a particular territory: a citizen is a citizen of a delimited territory and citizenship rights exist in a particular territory.

           The link between citizenship and territory is well known in the philosophical debate. Political philosophers (Rawls[87], Arendt[88]) have defined citizenship as bounded by membership and territory. However, some scholars have challenged this claim. For instance, Bauböck[89] states that citizenship is a bundle of rights, which transcends national boundaries and this fact is proved by the emergence of transnational norms of international law.

           On the contrary, the author believe that the relation citizenship/space is stronger that it could seem in the era of globalization[90]. Indeed, the bundle of rights[91] related to citizenship is spatially limited. Citizenship rights are linked to a certain territory. When a citizen moves from such territory, they cannot exercise their citizenship rights in the new territory (or at least not all of them) and they needs to have another membership which defines her new status. Therefore, a citizen in a foreign state has to appeal to another source of right (jus) in order to do not find  themself rightlessness. An individual cannot exercise her own citizenship rights recognized in a certain territory in a different territory e.g., one cannot access the welfare system in a foreign country only because their citizenship gives them access to the welfare system in their country. Such a case is not controversial in terms of justice or fairness. It just makes clear that citizenship is linked to a territory.

           The risk of citizenship revocation instead implies the loss of a full set of rights[92] in the territory in which citizenship has been acquired and thus, citizenship instead of being a secure and endless status, becomes a precarious and temporary one. Temporality refers to the second limit of citizenship: time. Indeed, the boundaries of citizenship relate not only to space (territory) but also to time. The extension of citizenship is limited by birth and death and/or by acquisition and deprivation, birth (acquisition) and death (deprivation) of citizenship do not necessarily correspond to individuals’ birth and death. Some citizens have an endless citizenship status while others have a citizenship that is potentially temporally limited.

            The latent risk of citizenship deprivation for naturalised citizens has divided the original political space in which all citizens are equal into a space in which some citizens potentially have a stronger and endless bundle of rights and others not.

4.1. Citizenship and residence

Citizenship is then the political and social status that is acquired when the reciprocal relationship between the immigrant and state is maximised[93]. It is comprised of  a full membership status and to the right of the associated political agency.

            On the one hand, citizenship indicates dispositions and identities that define those who hold the status and, on the other hand, citizenship is a political and legal status that grants the citizen the right to participate in collective decisions[94] through voting for representatives or participating actively in the decision-making process. The two are bound together in that political participation is the right corresponding to the maximal degree of membership. If full membership is recognized by the state then political agency is given to the new citizen[95]. Only full members of a democratic society can take part to collective decision making. However, contrary to the other degrees of membership, full membership is not recognized on the basis of the reciprocity principle[96]. Full membership is recognized on the basis of permanent residence[97]; only residents can be considered as full members of a democratic society and therefore be granted with political agency and citizenship. This will be explored more in the next three paragraphs.

            Full membership is defined as a profound link between an individual and a state[98]. Full members’ choices are affected by the state’ laws and most of the actions of the latter occur within the physical space delimited by the state’s territory. Their life is organized in function of the state’s structures, most of her relationships are bound to the state and her life chances depends on the opportunities given by the state. Their life is shaped by the state to the extent that they defined her identity in function of it. They identifies themself as belonging to the state’s political community and, reciprocally, they are recognized by other members as being one of them. A full member considers the state to be their home, their interests are directed towards its political community and the other members recognize their own interests as being intertwined with individual’s actions and choices[99].

            Only individuals having genuine interconnections with the state and its people may be recognized as full members and may apply for the status of citizenship and the right of political participation attached to it[100]. Full membership provides the normative basis for the acquisition of citizenship. When a state evaluates someone’s application to citizenship the goal is then to verify their degree of membership to the democratic society[101]. This realistically cannot be made by checking all her interconnections with the state and its people. This is why the traditional democratic position rejects and accepts citizenship on the basis of permanent residence[102]. Full membership is recognized on the basis of territorial settlement because only immigrants who have lives in a state for an extended period of time can prove sufficient affiliations to the state to acquire citizenship. Indeed, profound interconnections between the immigrants and the state take time to appear[103]. Therefore, the longer people live in the state, the stronger their connection to the state become and thus have a stronger claim to citizenship[104]. The traditional democratic reasoning is then to think that only permanent residence offers enough time to become a full member and being eligible to citizenship. It is only in conditions of residence that immigrants’ interests are liable to become interlinked with other citizens’ interests.

            Being present for a limited period of time does not establish a strong claim to full membership. By definition, moving people do not stay in the community and therefore do not have the time to create the necessary links to become a full member of the state. The direct consequence is that temporary immigrants, that is immigrants who are not long-term residents, cannot claim for citizenship and political agency[105].

            Indeed, renewing repeatedly a temporary visa is not sufficient to claim for citizenship[106], at most it reinforces immigrants’ claim for citizenship as their membership to the state becomes stronger. Actual democratic states will not recognize full membership to these immigrants if they do not convert their temporary visa into a permanent one[107]. Temporary immigrants cannot claim political agency before residing on a long-term basis in the state. For example, the European Union grants immigrants with a right of permanent residence after they have been residing in an EU state for 5 years[108] and only then can they ask for citizenship.

            To sum up, all immigrants who are not residents of the host state[109] are denied political agency on the basis that they are not full members of the host state society. The author questions this reasoning. By agreeing that citizenship can be granted only to full members of a democratic society and that full membership is that kind of profound connections between an individual and the state that appears with time, it can be argued that residence in the state is not necessary to become a full member of a democratic society: “Marshall’s views were strongly shaped by a critical reaction to Marx and Marxism. He wanted to show also that class conflict was neither the main motor of social transformation nor a vehicle for political betterment”[110]. Therefore, residence is not a good criterion for determining immigrants’ entitlement to citizenship. It will shown that some temporary immigrants can be full members of a democratic society without residing in the host state[111]. This will lead to look for a new criterion to grant immigrants with citizenship.

  1. Temporary immigrants and full membership

The first step to find out if it makes sense not to consider temporary immigrants as full members of a democratic society. This will be done by the analysis of two types of temporary immigrants: controlled admission with return conditionality immigrants and free admission migrants[112].

            The author relies on Kant’s justification of what he calls the “cosmopolitan law” (1795) to argue that this type of temporary immigrant cannot be considered as a full member of the host society. For Kant, visitors have rights to hospitality and are protected by the state during their stay, but they cannot enter in a state, settle and spread (and impose) their home culture. This law is to be understood as a restriction to colonialism: visitors can enter a state if their visit does not interfere with the host state’s affairs and structure. The reason is that visitors do not belong to the host state’s society so they have no rights to have a voice in the host state’s affairs[113]. Indeed, visitors do not have the same interests for the community as the residents. They do not define themselves through the structure of the host state. Indeed, their presence in the host state is related to an external reason that does not concern the host country. Visitors’ interests are not intertwined with the host state’s interest because they are only there to visit or to spend a short time in the host state. Visitors do not build any genuine link with the state[114]. For example, a year abroad for a visiting student is essentially an international experience added to a degree from the state of origin. The year abroad has a meaning from the state of origin’s perspective whereas from the host state perspective it is primarily a special treatment to host the student.

5.1. Controlled admission with return conditionality immigrants

Temporary immigrants[115] with return conditionality are immigrants who have a visa or a residence permit with a fixed expiration date which means that the host state expects them to leave its territory at the end of a fixed period[116]. Their visa is non-renewable e.g., student permit, or renewable after a certain time out of the state e.g., tourist visa. In both cases, it means that their time in the host state is limited and that their opportunities to integrate the society are restricted. (A prolongation of the visa is generally possible while the immigrant is still in the host state but after that prolongation an exit out of the host state is mandatory if the immigrant wants to come back).

            The inventory assesses who qualifies as a “temporary migrant” in law and policy in European and international perspectives[117]. The question is raised how time frames play a role for such an assessment seeing that certain instruments envisage a specific time-lapse for the state to confer inclusion, security of residence and related rights facilitating integration, in particular in view of labour migration[118], to mobile individuals. Moreover, how is temporariness framed in respect of human mobility and which role does it play in determining a social phenomenon involving cross-border mobility as temporary migration[119]? This research takes place in times of complex transnational processes often denominated as ‘globalization’ in which the transnational mobility of people has taken new and unexpected dimensions with the emergence of so-called transnational social spaces. The transformative characteristics of people’s transnational mobility imply increased and more diverse border-crossing connections, a growing recognition of the possibilities and challenges of activities that transcend state boundaries and normative frames controlling mobility as temporary or permanent beyond individuals’ intentions and changing prospects; and the growing integration of economies, politics and social relations on a global scale[120]. What does “temporary” in the literal sense mean[121]? The Oxford English Dictionary Online defines the term as “lasting for a limited time; existing or valid for a time (only); not permanent; transient; made to supply a passing need.” From this, one could conclude that temporary is defined as the opposite of permanent as literal interpretation. Yet, when bringing into the picture transnational social spaces characterizing cross-border human movements the answer to that question may not be as straight forward and clear cut divisions between what is temporary and what is permanent are far from obvious[122]. The relationship and interaction between temporary and permanent is vital for understanding of how temporary migration is framed in legal and policy terms both by supranational instruments and standards as well as by the nation-state and will be expanded below.

            For instance, students outside of the European Union must request an entry visa from the Italian consulate for the purpose of study prior to arrival in Italy. Foreign Students participating in a European exchange program and who got a residence permit issued by a country member of the EU, may enter Italy for stays longer than three months without needing a visa. As long as the student is enrolled at a university or in a university course, he or she may enter Italy in order to continue studies already begun in their host county or in order to integrate themselves with a program of related study. In this case, the student must attach a document issued by their home university to their permit to stay attesting that the courses that student will take at the Italian University accord with their area of study at the home University.

            EU students who plan to stay in Italy for longer than three months are not obligated to ask for a permit to stay. After three months the student must register themselves as residents of an Italian city. In order to do this, the student must present a document that attests to their enrollment at the Italian University. For stays less than three months students are not required to register as residents.

            Students from outside of the EU do not require a permit for stays shorter than three months,  but are required to declare their intention stay. Students coming from a country which does not apply to the Schengen Agreement must declare to the border police at the time of entry into the Italian territory. Students coming from a country that applies to the Schengen Agreement must declare at the Italian Police Station within the first eight days in Italy. Failure to submit a declaration of presence will result in expulsion from Italy. The same penalty is enforced if the student overstays their declared time of study. For stays longer than three months, foreign students must apply for a permit to stay within eight working days of their entry into Italy[123].

5.2. Free admission of migrants

Temporary immigrants with free admission are, at the same time, immigrants who are free to enter or leave the host state[124]. Such immigrants are not exposed to any control with regard to their admission on the host territory. Immigrants involved in a continuous round trip between two or more countries, such as refugees returning to their home state or working migrants who live near the border of one state and work in another state, belong to this type of temporary migrations.

            In a field survey on migrations in Bosnia-Herzegovina[125], Isabelle Delpla[126] studied what the “back and forth dynamics” of migrants moving between several countries[127]. Focusing on the case of returnees, she describes their identity and membership as being divided between their state of origin and their host states: they belong to two states. Indeed, the membership to the host state can be explained by the fact that refugees who are forced to flee their home states do not have any prospect of returning there in the near future, therefore they arrive at the host state looking for a new home and a new identity, even though this new identity is much harder to get than expected because of the hostility refugees have to deal with in the host state. These refugees eventually create profound connections with people and the state and when the possibility to come back to their home state arrises, refugees often find that home that is no longer the home that they used to know. The territory that they used to live in is a newly born state and they do not reside in it. However, what justifies that returnees ought to be granted with the citizenship of this state is that they still belong to this territory because they are part of its history. A whole part of their life belongs to this state. It is clear that their membership has been divided between the two states. There are members without borders belonging ‘here’ and ‘there’. This double membership explains the back and forth dynamics between the two states. Instead of choosing one or the other country, the former refugees adopt a living strategy based on that double membership. They do not settle permanently in one or the other country but they constantly live in both states.

            To sum up, this field survey shows that full membership is not necessarily linked to residence because it is possible that immigrants do not live permanently in a state and are full members of this state. Affiliations with a state can come from a shared history or ancestry that is not based on a current residence in the state[128]. This observation leads to the conclusion that residence is not the only ground for determining immigrants’ full membership to a state and therefore can not be the only criterion for deciding on immigrant’s entitlement to citizenship and political agency.     Asking immigrants to permanently settle in a state to insure that they have sufficient links with the state before granting them with citizenship is a counterproductive process that can be avoided if another criterion to judge on immigrant’s full membership to the state is found[129]. In the next sections, three attempts at finding a better criterion will shown with their limits before the author offering their own criterion.

  1. Citizenship and the “Round-Trip-Principle”

Delpla, on the basis of the results of her field survey, offered a thought experiment based on Rawls’ veil of ignorance[130]. People should choose the constitutive principles of their state without knowing where they are, whether they are in their state or out of its borders[131]. In particular, the key concept of the Rawlsian justice as fairness is the idea of original position where initially self-interested parties are located behind the veil of ignorance. The veil of ignorance is to ensure that the individuals making decisions on the future terms of cooperation are not biased. It is an assumption that certain particular knowledge on the actual position of parties is to be “ignored”: “Since all are similarly situated and no one is able to design principles to favour his particular condition, the principles of justice are the result of a fair agreement or bargain”[132].

            Residence in the state would obviously be a pointless criterion to determine someone’s membership to the state as it could be the case that they are living in another state[133]. Basing her analysis on the actual back and forth dynamics that characterizes migrations, Delpla suggested that citizenship should be established as what is translated as “the round-trip principle”. The idea is to enable people to be citizens of a state on the possibility that they live outside of it. Delpla proposes a general principle to grant citizenship that goes against the state-based way of thinking citizenship. This means that not only does she challenges residence as a good ground for the acquisition of citizenship for immigrants but also does she challenges the fact the citizenship is automatically given to children born in the state (jus soli) or from citizens of the state (jus sanguinis). Her argument will be only used in the case of immigrants’ citizenship, as the author does intend to challenge the whole concept of citizenship only to find a principle that does not unfairly exclude immigrants from citizenship.

            Citizenship is immediately international instead of being fixed to permanent residence in the state. Indeed, the field survey revealed that returnees’ living strategy consists in dividing tasks between the different members of the family. Some return to their former home state[134], some settle definitely in the host state and others do not settle, they move back and forth between the two countries and therefore live in both. Founding citizenship in the “round trip principle” enables immigrants to move out of their state of origin and to keep their citizenship even if they do not come back to their state. It also enables immigrants to acquire citizenship in their host state even if they do not permanently reside there.

            The “round trip principle” is appealing in that it reduces the importance of the borders[135] of state in the acquisition of citizenship – one does not have to live inside that state to be citizen of the state. Full membership is not defined by residence anymore. However, the notion of full membership is based on a restrictive principle that unfairly excludes some immigrants from citizenship as full membership is still attached to territories[136]. Indeed, Delpla’s concept of full membership is attached to the refugees’ back and forth dynamics and it is unfair that the refugees are not granted with citizenship of both their host country and the newly born state where they used to live in because they are full members of the two states even if they do not reside in the two states. On one hand, they rebuilt their entire life in the host country. On the other hand, the newly born state is their former home, it is the root of their identity. What characterizes the refugees’ back and forth dynamics is that they have strong ties in each state and they are bound to the territory of these communities. Their full membership is strictly speaking linked to a jus soli, even if the immigrant does not live in the state anymore or if the state disappears they keeps their full membership[137] over time because they are attached to the ground of this territory before being attached to the state that sits on it. Delpla reproduces the residence principle in that full membership is still fixed to a territory of present or former residence. The immigrant does not have to live in the state but has to be connected to its territory and community. The direct consequence of the “round trip principle” is that is excludes from citizenship immigrants who have never lived in their host state such as frontier workers who reside near the border of one state but work in another state.

            However, the theory of narrative identity shows that migrants’ membership is cumulative as it is built by the various experiences that they have in both their home state and their host state[138]. Their sense of belonging to one or the other country is continuous with their displacements[139]. The more time migrants spend in a territory, the more experiences they share with people and the host state results in their membership being more rooted in the host state. Membership is best described as an interactional process that refers to how migrants multiply their connections with the host state in function of their numerous displacements rather than as a fixed concept based on the territory. Residence can of course help creating links between migrants and their host state. Residing in one state reinforces the sense of belonging to one community but, residence is not necessary to make someone a member of a society. Only multiple and repetitive experiences are necessary to enable migrants to build some connections with their host state. Bolzman and Vial[140] showed that frontiers workers who work between France and the canton of Geneva develop a cross-border way of life with double membership to both states even though they only reside in one of them. Indeed, their place of residence is dissociated from their place of work but their social activities occur in a space without borders[141].

            To sum up, the example of frontiers workers shows that full membership is not necessarily linked to a territory but to degrees of connections that you share with the state. Delpla’s principle is underinclusive as it excludes some immigrants who are full members from citizenship and political agency.

  1. Citizenship and the “All affected interests principle”

An alternative approach would be to focus on immigrants’ interests and to verify immigrants’ membership in function of the “all affected interests principle”[142]. The reasoning is that if immigrants find their interests interlinked with some political decisions, they should be included in the making of these decisions[143]. Indeed, it was shown earlier that full membership is essentially defined as interlinked interests and that full membership is what makes someone eligible to political participation. So, every immigrant who shares reciprocal interests with some members of the democratic society[144] is defined as a member of that same democratic society and is eligible to take part in collective decision-makings that affect them. As a matter of fact, it makes sense to think that as soon as you are bound to a decision by your interest, you are part of that decision and are entitled to participate to it.

            Goodin’s all affected interest principle received a fair amount of scholarly discussion[145]. The discussion consists in defining who are the affected people because it was said that the principle could be both overinclusive including people whose interests are not really affected by the decision, and underinclusive, excluding people whose interests are definitely affected by the decision[146]. There is not the space to develop the different arguments so Owen’s view will be taken as the most complete. He argued that “all those whose legitimate interests are actually affected by a choice between any of the range of plausible options open to the collective decision-making body should have their interests taken into account in the decision-making process” where plausible options mean “options compatible with the nexus of purposes, functions and capacities constitutive of a polity’s decision-making in the given circumstances and history of its agency”[147].

            However, it seems that his view is still overinclusive in that it includes in the decision-making group immigrants who are clearly not full members of the society. If all immigrants whose interest is plausibly interlinked with a political decision can have a say in this decision then all immigrants, visitors included, should be granted with political agency in a democratic society[148]. Indeed, any immigrants, temporary or not, are linked to political regulations but the fact that these political decisions have effects on them and that they have to adjust their actions in function of these decisions does not make them full members of the democratic society[149]. For example, any visitor has to obey the speed limit regulation of the host country but it does not mean that she can participate in the decision-making group that decides on the speed limit of the state. Being affected by a few decisions is not sufficient to make one a full member of a democratic society[150] .

            The all affected interests principle take into account too many people who would be objectively affected by some political decisions. Bauböck[151] proposes to reverse the point of view of the “all affected interests” principle and to focus on how subjectively people feel affected by some political decisions and calls this view the “stakeholder citizenship”[152]. He only takes into account that full members of a democratic society can be granted with political agency: only immigrants who claim and recognize themselves as being full members of the society can be granted with citizenship. Some immigrants could be objectively granted with citizenship because of their affiliations with the state – Owen calls them the “pre-political demos”[153]. However, if they do not judge themselves as being part of the society and do not ask for political participation then they cannot be citizens of the state and be part of the demos of their host state. Full membership is a condition to political agency but only conscious and intellectual awareness of one’s full membership can grant citizenship[154].

            In the case of the “all affected interests” principle, full membership is a status given by the state who judge the immigrant as being sufficiently integrated in the society. The “stakeholder” principle reverses this tendency with full membership being a status that the immigrant claims to the state. On the one hand, citizenship is a passive status that is given by the state and on the other hand, citizenship is an active status that the immigrant demands to the state[155].

            Giving the voice to the immigrant to verify her full membership to the state seems ideal as the immigrant is undoubtedly the one to know her interests are intertwined with the rest of the democratic society. There are doubts regarding the practicality of Bauböck’s principle. He assumes that immigrants will recognize themselves as belonging to the democratic society. However, it could be the case that they do not perceive themselves as full members even if they are as it is not obvious that immigrants have a clear view of the public affairs of their host state. The situation faced by denizenship subjects excluded from political participation is a thorn in the side in the forms of liberal democratic government as these political systems lack incentives to promote rights of those who have no “voice”, and not only their political rights. For example, the phrase “denizen” is reactivated by the Swedish  scholar Thomas Hammar, where denotes the legal status reinforced (enhanced) of resident immigrants[156].

            They are many reasons why one would not recognize themselves as being legitimate for citizenship. One was raised by Lippmann in that political decisions are often formulated by administrators in technical terms such that only politicians can understand them and that others do not feel concerned by these political decisions because they can not see themselves and their interests represented[157]. For immigrants to feel included in some political decisions to know what is at stake in these decisions requires the decision process to be made accessible to their knowledge and understanding. This operation cannot come from the immigrants themselves and they need external help to understand their membership and what to expect from it. If immigrants can not identify their interests as being affected by some decisions, they will not claim for political agency. This could result into political apathy with immigrants not asking for political participation[158].

            To sum up[159], the all affected interests principle and the stakeholder principle offer a real alternative to the failure of the state-based principles to include all full members of the society into citizenship because they focus on people’s degree of affiliations with the state instead of thinking of full membership as all or nothing status[160]. However, both fail to propose a fair principle to enable immigrants to access citizenship on a fair basis with the former is overincluse whereas the latter is underincluse. The last challenge is then to look for an in-between principle that includes fairly all immigrants that are actually full members of the democratic society of their host state. For example, “although citizenship is the lingua franca of socialization in civic classes, as well as the cornerstone of many social movements seeking basic rights, and a key phrase in speeches by politicians on ceremonial occasions, oddly enough, citizenship has not been a central idea in social sciences”[161].

  1. Citizenship and the reciprocity principle

The stakeholder principle is complementary to the all affected interest principle. The two views are not contradictory and their unification would solve their respective vulnerability. Indeed, both have at stake people’s intertwined interests, that is, the relationship between the immigrant and the state[162]. However, they define full membership from the perspective of only one side of that relationship. The all affected interests principle focuses one what the state recognizes as intertwined interests whereas the stakeholder principle focuses one what people recognize as intertwined interests. In both cases, the relationship is foreseen by one side without consulting the other part. Ideally, if both parts are fair they should recognize the same intertwined interests and therefore agree on who is a full member but the last section showed that it is not the case as both are easily mistaken by some parameters that they are enable to see and take into account in their analysis. The author suggests that the relationship between the immigrant and the state should be determined on the basis of their mutual agreement[163]. Intertwined interests between the immigrant and the state can be recognized only if they together agree on being involved in a reciprocal relationship on certain affairs. John Dewey’s notion of the public[164] corresponds to such a unified view. To him, a public is a collective formation that is confronted with a social and political problem. In the course of daily life, individuals encounter problematic decisions made by others and that directly affect the course of their actions. All those who are affected by the indirect consequences of social transactions to such an extent that it is deemed necessary to have those consequences systematically cared for. The public exists as soon as individuals concerned by these decisions recognize themselves as being involved in a group decision and start to work together to find the best comprise. In the case of the immigrant’s full membership, the state and its political decisions directly affect the course of the immigrants’ actions. The immigrants recognizing that their interests depend on the state’s political decisions constitute the public and only their political inclusion that is their contribution to the state’s decisions can guarantee that they are treated fairly. The notion of the public matches the intertwined interests relationship between the immigrants and the state. On the one hand, the state’s goal is to make decisions that provide equality among its citizens and, on other the immigrants’ aim is to participate to the decisions that affect them.

            Dewey was aware that the prime difficulty is the discovering the means by which a scattered, mobile, and manifold public may so recognize itself as to define and express its interests. The political condition for the public to be operative is its contribution to political decisions by its awareness of its interests. Intertwined interests and mutual dependence are not sufficient, political participation is necessary for a public to be formed. The problem of the public is then to recognize itself as being part of the state’s decisions. For Dewey, communication is then the precondition to political participation. Awareness cannot come from the public alone and the challenge of democracy is to make it possible for the public to have access to information about its interests. The state ought to provide means of knowledge to the publics. The aim of the state is to make it possible for people to identify what kinds of decisions are being made by political bodies and how those decisions might affect their interests. Official representatives should inform the public on those decisions and organizations and various resources should improve the conditions of debate and discussion to help the public to recognize itself. A necessary communication between the state and the people must exist so that the people understand its legitimacy to participate to political decisions and ask for this political agency. In the case of the immigrants, it means that as soon as they enter in the state, not only does the state have to grant them with the civil liberties that correspond to their visas, it must also enable them to access information about policy decisions related to their interests.

            At this final step of this argument, the author returns to the reciprocity principle and notes that applying Dewey’s notion of the public to a cosmopolitan view of citizenship, where the immigrant claims her citizenship on the basis that the state provides them with the means to recognize herself as a full member of the democratic society, amounts to the same as applying the reciprocity principle to the right of political participation[165]. Indeed, the reciprocity principle states that rights are granted to immigrants on a give and take agreement between the immigrant and the state. To recall that the immigrant commits themselves to work in the state and the state guarantees them in return the rights related to working conditions. The reciprocity principle works as a recognition of the immigrant’s degree of membership in the democratic society. Dewey’s notion of the public rests on that same mutually beneficial agreement between the state and the immigrant; the immigrant commits themselves to participate to the public affairs if the state guarantees to provide them information about their interests and their rights. The state and the immigrant agree that citizenship is a matter of self-involvement that the immigrant can claim on the basis that the state includes the immigrant in the communication of its affairs[166].

  1. Concluding remarks

Migrations have existed for  along time but, only now the case of immigrant’s citizenship has highly weakened traditional ideas of how membership, citizenship, residence and political agency should be connected. A unique way to understand citizenship is based upon the political status attached to the right of political participation[167]. Full membership provides a normative basis for the claim of citizenship and only full members of a democratic society can ask for citizenship[168].

            However, there are two ways to make sense of full membership for immigrants:

  • 1) Full membership as an all-or-nothing status recognized on the basis of residence in the territory or attachments to the territory. A cosmopolitan view of citizenship[169] is needed to allow migrants to access citizenship.
  • 2) Full membership as a cumulative status recognized on the basis of shared interests between the state and the immigrant. A certain threshold of common interests makes the immigrant eligible to citizenship. The latter route seems more promising for correcting the political exclusion of many immigrants from citizenship.

On the basis of this argument, the ‘all affected interests’ principle provides a good account to know objectively which immigrants’ interests are concerned by some political decisions but it fails to determine the immigrant’s full membership. Full membership depends primarily on the immigrant’s recognition of her entitlement to citizenship[170]. The argument leaves open the risk that the immigrant might not perceive their full membership. It has been stressed that this is especially likely unless the state provide immigrants with access to information regarding the political decisions that affect their interests[171]. The appropriate principle for the determination of the immigrants’ full membership is the reciprocity principle drawn on Dewey’s notion of the public[172] which holds that any immigrant whose interests are intertwined with the state’s political decisions and who is able to perceive themselves as being fully part of the democratic society, thanks to the mediation of the state, is entitled to inclusion within the citizens of this state.

            The direct consequence of this argument is that the acquisition of citizenship rests upon the reciprocity principle – same principle as any civil liberties that the immigrant may be granted. There is a continuity between the right of political participation and more common civil liberties[173]. Rights are what the immigrant is granted on the basis of them degree of membership in the state: the higher the degree, the immigrant get more rights. Political participation or citizenship[174] is then the right corresponding to the highest degree of membership. Where there is citizenship, the state is committed to providing the information relevant to the interests of the citizen and the citizen has recognized herself as entitled to political participation[175].

            It was yet to be mentioned that a few years ago,  there was a development in literature which was heavily focused on its social categories on so-called ‘third-generation rights’, to quote Bobbio[176], or those cosmopolitan and ecological principles which aim to regulate relationships with the natural environment[177].

            It has been discussed how citizenship deprivation challenges not only the idea of equality[178] but also the approach to the state as a functional space for the protection of the individual. It has been argued that citizenship is limited by time and space. The time limit arrises because citizenship  is a temporary status, which can be acquired, changed or revoked and citizenship is spacially limited by territory because citizenship’s bundle of rights[179] exists almost exclusively in the home country. Citizenship brings within itself a strong attachment to a certain territory and to a certain temporality. Such strengths of citizenship in time and space decrease when referring to naturalized or dual citizens. The myth of endless citizenship collides with the possibility of citizenship revocation and in the case of citizenship deprivation the attachment to time and space is lost completely[180].

            In order to analyze citizenship deprivation in liberal democracies, this work focused on some aspects of the relationship between state and nationality. It has been argued that in some cases the narrative about national identity embodies the idea of the state in liberal democracies and such narrative about nationality is a key factor in pursuing the possibility of citizenship deprivation[181].

[1]    Aristotle, Pol., I, 1259b.; III, 1283b 44-45; III, 1287a 13-19; III, 1288a 14;  Manville, P.B., The Origins of Citizenship in Ancient Athens, 1990, p. 24, Princeton University Press, Princeton (New Jersey); Susan D. Collins, Aristotle and The Rediscovery of Citizenship, 2006, Cambridge University Press; Bookman, J.T., The Wisdom of the Many: an Analysis of the Arguments of Book III and IV of Aristotle’s Politics, «History of Political Thought», XIII, 1, 1992, pp. 1 ss.;  Pol., III, 1282a 20-25; Barker, E., The Vocabulary of the Politics, cit., p. lxvii-lxviii; Roberts, J., Excellences of the Citizen and of the Individual, in G. Anagnostopoulos (ed.), A Companion to Aristotle, Wiley-Blackwell, Oxford 2009, pp. 555-565. See also Beitz, C.R., and Goodin, R.E., 2009, Basic Rights and beyond, pp. 1-24 in Beitz and Goodin, eds., Global Basic Rights. 1987, Oxford University Press; Collins, S., 2013, Collectives’ duties and collectivization duties. Australasian Journal of Philosophy, 91 (#2): 231-48; Feinberg, J., 1970, Justice and personal desert. Pp. 55-94 in Feinberg, J., Doing and Deserving. Princeton, NJ: Princeton University Press; Goodin, R.E., 1995, The state as a moral agent. Pp. 28-44 in Goodin, Utilitarianism as a Public Philosophy. New York: Cambridge University Press; Goodin, R.E., 2009, Demandingness as a virtue. Journal of Ethics, 13: 1-13; Hart, H.L. A., 1955, Are there any natural rights? Philosophical Review 64: 175-91; Herman, B., 2013, Being helped and being grateful: imperfect duties, the ethics of possession and the unity of morality. Journal of Philosophy, 109 (5/6): 391-411; Rainbolt, G., 2000, Perfect and imperfect obligations. Philosophical Studies, 98 (3: Ap): 233-56; Scheffler, S., 2000, Justice and desert in liberal theory. California Law Review, 88: 965-90; Schroeder, S.A., 2014, Imperfect duties, group obligations and beneficence. Journal of Moral Philosophy, 11 (5): 557-84.

[2]    Manville, P.B., The Origins of Citizenship in Ancient Athens, 1990, p. 24, Princeton University Press.

[3]    Mindus, P., Cittadini e no. Forme e funzioni dell’inclusione e dell’esclusione, 2014, Firenze University Press.

[4]    See Gibney, M.J. 2013, ‘A Very Transcendental Power’: Denaturalisation and the Liberalisation of Citizenship in the United Kingdom. Political Studies, 61: 637–655; Matthew, J.G.,“Should Citizenship Be Conditional? The Ethics of Denationalization,” The Journal of Politics 75, no. 3 (July 2013); Barry, C. and Ferracioli, L. 2015, Can Withdrawing Citizenship Be Justified? Political Studies, cit.

[5]    Powell, M., The Hidden History of Social Citizenship, «Citizenship Studies», VI, 3, 2002, p. 235.

[6]    Ellermann, A., States against Migrants. Deportation in Germany and the United States, 2009, Cambridge Univ. Press,  p. 19; Vogel, D.,  Migration Control in Germany and the United States, «International Migration Review», 34, 2, 2000, pp. 390-422; Hagan, J.,  Eschenbach, K., Rodriguez, N., U.S. Deportation Policy, Family Separation, and Circular Migration, «International Migration Review», 42, 1, 2008, pp. 64-88.

[7]    Hammar, T.,  Democracy and the Nation State: Aliens, Denizens and Citizens in a World of International Migration, 1990, Aldershot, Avebury.

[8]    Becker, L., Reciprocity (London: Routledge & Kegan Paul, 1986); Komter, A., ‘Gifts and Social Relations: The Mechanisms of Reciprocity,’ International Sociology 22(1) (2007): 93-107; De Waal, F., The Age of Empathy: Nature’s Lessons for a Kinder Society (New York: Three Rivers Press, 2009); Malinowski, B., Argonauts of the Western Pacific (London: Routledge and Kegan Paul, 1922); Mauss, M., The Gift: The Form and Reason for Exchange in Archaic Societies (London: Routledge, 1991 [1923]); Simmel, G., ‘Faithfulness and gratitude,’ in The sociology of Georg Simmel, ed. K. Wolff (New York: The Free Press, 1950 [1908]), 379-96; Komter, A.,‘The Evolution of Human Generosity,’ International Sociology 25(3) (2010): 443-64; Mead, G., Mind, Self, and Society (Chicago: University of Chicago Press, 1962 [1934]); Arendt, A., The Life of the Mind (New York: Harcourt, Brace and World, 1978); Habermas, J., ‘Justice and Solidarity: On the Discussion Concerning Stage 6,’ in The Moral Domain, ed. T.E. Wren (Cambridge, MA: MIT Press, 1990), 224-51; Honneth, A., The Struggle for Recognition: The Moral Grammar of Social Conflicts (Cambridge: Cambridge University Press, 1992); Komter, A., ‘Reciprocity as a Principle of Exclusion: Gift Giving in the Netherlands,’ Sociology 30(2) (1996): 299-316; De Waal, F., Good Natured: The Origins of Right and Wrong in Humans and Other Animals (Cambridge, MA: Harvard University Press, 1996).

[9]    Benton, M., The Tyranny of the Enfranchised Majority? The Accountability of States to Their Non-Citizen Population, «Res Publica», 16, 4, 2010, pp. 397-413. See also the recent debate Bellamy, R., Political Constitutionalism, Cambridge University Press, Cambridge, 2007; Tomkins, A., Republican Constitution, Hart, Oxford, 2005; Griffith, J., The Political Constitution, “Modern Law Review”, 42, 1979, pp. 1-21, and finally the special issue on political constitutions by  Goldoni, M.,- McCorkindale, C., in “German Law Journal,” 12, 2013.

[10]   “Tarello Institute for Legal Philosophy”» is one of the world’s leading centres for legal research and education. The works are focused on topics in analytical legal theory and philosophy of positive law, constitutional democracy, human rights, bioethics, sociology of law and history of European legal culture. The founding father was Giovanni Tarello,  Italy’s foremost philosopher and historian of law.

     As for the present theme cf. Barberis, M., Metaetica del costituzionalismo, in Diritto e questioni pubbliche, No. 11. (2011) 135-156; Barberis, M., (2000a). Filosofia del diritto. Un’introduzione storica, 2000, il Mulino, Bologna; Barberis, M., (2000b). Neocostituzionalismo, democrazia e imperialismo della morale, in Ragion Pratica, Vol. 14. (2000), 147-162; Comanducci, P., Il positivismo giuridico: un tentativo di bilancio, in Sudi in onore di Franca De Marini, 1999, Milano, Giuffrè, 125-134.; Comanducci, P., Neo-constitutionalism: an attempt at classification, in Associations (in print). See also Pozzolo, S., (1998). Neoconstitucionalismo y especificidad de la interpretación constitucional, in Doxa, Vol. 2. No. 21. 355-370; Pozzolo, S., Neocostituzionalismo e positivismo giuridico, 2001, Torino, Giappichelli.

[11]   Cf., e.g., Ferrajoli, L., Per una sfera pubblica del mondo, in Teoria politica, Vol. 17. No. 3. (2001) 3-21. See also a paper presented by GUASTINI, R., A Realistic View on Law and Legal Cognition.  University of Genoa, Italy, Tarello Institute for Legal Philosophy, in occasion of “First Genoa-Slavic Seminar in Legal Theory”, 11-12 December, 2014.

[12]   Though on the base of not always coincident arguments, a worried warning on the most recent apparent crisis of the protection of fundamental rights as a leading principle of domestic and international law has been raised, e.g., by Allegretti, U., Diritti e stato nella mondializzazione, 2002, Troina (En), Città aperta, 127-197; Bonanate, L., La politica interna del mondo, in Teoria politica, Vol. 17. No. 1. (2001), 3-25; Ferrajoli, L., I fondamenti dei diritti fondamentali, in Teoria Politica, Vol. 16. No. 3. (2000) 41-113; Mazzarese, T., Is the age of rights to a turn? Paper presented at “Fundamental Aspects of Human Rights. A Symposium”, Helsinki, 22-23 February 2002.

[13]   Mazzarese, T., Towards a Positivist reading of Neo-constitutionalism, in Jura Gentium-Rivista di Filosofia del diritto internazionale e della politica globale, 18, (2008) 345-364.

[14]   Great emphasis on constitutional fundamental rights as material criteria of identification is devoted, e.g., by Ferrajoli, L., (2002): Lo stato di diritto fra passato e futuro, in Costa, P., – Zolo, D., (ed.): Lo stato di diritto. Storia, teoria, critica, 2002, Feltrinelli, Milano, 349-386. See also Palombella, G., L’autorità dei diritti, 2002, Laterza, Roma-Bari, 7 and 23-29. Focusing more on the problem of the identification (and interpretation) of the constitutional rules than on the problem of the identification (and interpretation) of the statutory rules coping with the material criteria of validity, the topic is dealt with at length by the contributions to Alexander, L., (ed.): Constitutionalism. Philosophical Foundations, 1998, Cambridge, Cambridge University Press.

[15]   With regard to domestic law, insofar as the Italian legal system is concerned, a critical overview of shortcomings and deficiencies concerning the judicial protection of fundamental rights is provided by Taruffo, M., Diritti fondamentali, tutela giurisdizionale e alternative, in Mazzarese, T., (ed.): Neocostituzionalismo e tutela (sovra)nazione dei diritti fondamentali, 2002, Giappichelli, Torino. With regard to international law, a rich exemplification of the limits met in securing legal implementation and judicial protection of fundamental rights is offered by Cassese, A., I diritti umani nel mondo contemporaneo, 1994, Laterza, Roma-Bari.

[16]    This can be taken to be the case, though his main concern is not the definition of the notion of constitutionalism, with Guastini, R., (1998): La “costituzionalizzazione” dell’ordinamento italiano, in Ragion Pratica, Vol. 6. No. 11. (1998), 185-206.

[17]   That is the way it is, with Ferrajoli, L., (2012): La pragmatica della teoria del diritto, in Comanducci, P., – Guastini, R., (ed.): Analisi e diritto 2014, 2014, Giappichelli, Torino. Further, though not always as manifestly vindicated and purported as in Ferrajoli’s works, that is also the case, e.g., with ZAGREBELSKY, G., Il diritto mite. Legge diritti giustizia, 1992, Einaudi, Torino;  ATIENZA, M., Legal Reasoning and Constitutional State, in Associations (in print).

[18]   A similar understanding of the notion occurs in Ferrajoli, L., I fondamenti dei diritti fondamentali, in Teoria Politica, Vol. 16. No. 3. (2000), 41-113, when maintaining that the new paradigm of constitutionalism “represents a completion not only of the rule of law but also of the very legal positivism since the change it has led to, has provided legitimacy with a twofold artificial and positive character: not only of the law as it is, i.e. of its conditions of existence, but also of the law as it ought to be, i.e. of its conditions of validity made constitutionally positive them too, as law on the law, in the forms of legal limits and constraints on its production”. Further, cf. also Raz, J.: Legal Rights, in Oxford Journal of Legal Studies, Vol. 4. No. 1. (1984), 1-21, when stating: “Legal rights are legal reasons for developing the law by creating further rights and duties where doing so is desirable in order to protect the interests on which the justifying rights are based”.

[19]   Such a deficiency has been denounced from a variety of perspectives. From a theoretical perspective, it constitutes the main concern of those who concentrate on the difficulties of the identification and/or judicial implementation of fundamental rights because of the interpretative difficulties their formulations can give rise to: that is the case, e.g., with Bobbio, N., (1968): Presente e avvenire dei diritti dell’uomo, in La comunità internazionale, Vol. 23. 3-18. English translation by Cameron, A.: Human Rights Now and in the Future, in Bobbio, N., The Age of Rights, 1996, Polity Press, Cambridge, 12-31; Mazzarese, T., (1993): Judicial Implementation of Fundamental Rights: Three Sorts of Problem, in Karlsson, M. M. – Jonsson, O. P. – Erynjarsdottir, E. M. (ed.): Recht, Gerechtigkeit und der Staat, 1993, Duncker und Humblot, Berlin, 203-214; Koskenniemi, M., The Effect of Rights on Political Culture, in Alston, Philip (ed.): The EU and Human Rights, 1999, Oxford University Press, Oxford, 99-116.

     From a (meta)ethical perspective, it constitutes the main concern of those who doubt any alleged universality of fundamental rights because of the differing values of different cultures and/or ideologies and/or religions: that is the case, despite any distinguishing feature of different trends, with the advocates of multiculturalism and/or of (political) realism and/or of the gender theory. From a political perspective, it constitutes the main concern of those who maintain that their legal positivization deprives fundamental rights of their political innovative potentiality: that is mainly the case, e.g., with the adherents of the so called critical legal studies movement. Cf., e.g., McIlawain, C.H., Constitutionalism: Ancient and Modern, 1947, Cornell University Press, New York; Sartori, G., Constitutionalism: a Preliminary Discussion, in American Political Science Review, Vol. 56. No. 4. (1962), 853-864; Floridia, G., La costituzione dei moderni. Profili tecnici di storia costituzionale. I Dal Medioevo inglese al 1791, 1991, Giappichelli, Torino; Dogliani, M., Introduzione al diritto costituzionale, 1994, il Mulino, Bologna; and Moreso, J.,: In Defense of Inclusive Legal Positivism, in Chiassoni, P., (ed.): The Legal Ought (proceedings of the IVR mid-term Congress in Genoa, June 19-20, 2000), 2001, Giappichelli, Torino, 37-63.

[20]   von Bogdandy, A., A Disputed Ieda Becomes Law: Remarks on European Democracy as a Legal Principle, in B. Koch, B. Rittberger (ed.): Debating the Democratic Legitimacy of the European Union, Lanham, Rowan & Littlefield Publishers, 2007, 34.

[21]   Dommering, E., European Convention on Human Rights and Fundamental Freedoms, in O. Castendyk, E. Dommering,  A. Scheuer (ed.): European Media Law, Alphen aan den Rijn, Wolters Kluwer, 2008, 12. (Under International Law, the term “hard law” refers to legal instruments with legally binding force, while the opposite term “soft law” is used to refer “quasi-legal instruments” which have no legally binding force or whose binding force is weaker than the binding force of traditional law).

[22]   von Bogdandy, A., Founding Principles, in Armin von Bogdandy, Jürgen Bast (ed.): Principles of European Constitutional Law., Oxford, Hart Publishing, 2009. [Hereinafter: Von Bogadandy, (2009a)], p. 22.

[23]   According to Article 2 of the Treaty of the European Union as amended by the Lisbon Treaty, «the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.»

[24]   Abbott K.W. and Snidal D., Hard and Soft Law in International Governance, in International Organization, Vol. 54 (3), Summer 2000, pp. 421-456; Baxter R., International Law in “Her Infinite variety”, in International and Comparative Law Quarterly, Vol. 29 (4), 1980, pp. 549-566. See also Shelton D., Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System, Oxford Scholarship Online, January 2010.

[25]   von Bogdandy, A.; Kottmann, M., Antpöhler, C.; Dickschen, J.; Hentrei, S.; Smrkolj, M.; Ein Rettungsschirm für europäische Grundrechte – Grundlagen einer unionsrechtlichen Solange-Doktrin gegenüber Mitgliedstaaten, in Zaör V, 72, 2012, p. 46.

[26]          Gil-Bazo, M.-T.,  “Refugee status and subsidiary protection under EC law: the qualification directive and the right to be granted asylum”, in A. Baldaccini, E. Guild, and H. Toner (eds.), Whose Freedom, Security and Justice? EU Immigration and Asylum Law and Policy, Oxford, Hart, 2007, 236–9.

[27]          Peers, S.,; Ward, A., eds. The EU Charter and of Fundamental Rights: politics, law and polity. Oxford: Hart Publishing, 2004. See also Anastasios, A., Increasing Rights’ Protection in the EU: The Charter of Fundamental Rights in Trajectory of Enforcement, in Hellenic Review of European Law (4) 2009, 97.

[28]          Lord Goldsmith, QC, “A charter of rights, freedoms and principles”, Common Market Law Review, Vol. 38, 2001, 1204; P. Eeckhout, “The EU charter of fundamental rights and the federal question”, Common Market Law Review, Vol. 39, 2002, 947.

[29]   Marks, G.; Nielsen, F.; Ray, L.; Salk, J.; Competencies, Cracks and Conflicts: Regional Mobilization in the European Union, in G. Mrks, W. Scharpf, C. Schmitter (ed.), Governance in the  European Union, London, Sage, 1996, pages 41-42.

[30]   von Bogdandy, A., Grundprinzipien, in von Bogdandy, A., Bast, J., (ed.), Europäisches Verfassungsrecht, Heidelberg, Springer, 2009. [Hereinafter: Von Bogdandy, (2009b)], p. 30.

[31]   Kostakopoulou, T., The Future Governance of EU Citizenship, presented in European Citizenship: Twenty Years On,  (Uppsala 2013); http://media.medfarm.uu.se/play/kanal/121.

[32]          Bogdandy refers to the conceptual status prior to the Lisbon Treaty when he writes that the concept of fundamental principle does not include all norms or norm elements that are defined by the Treaties of the European Court of Justice as principles; only a number of provisions belong here that are usually called fundamental or structural principles by the national constitutions, too. Cfr. Von Bogdandy-Bast, op. cit., p. 21.

[33]          von Bogdandy, A., (2009b),  op. cit., p. 25; p. 28.

[34]          von Bogdandy, A., op. cit., p. 22.

[35]          In the proceedings, according to Article 7 of the protocol on subsidiarity and the application of the principle of proportionality, the objections of national parliaments submitted in relation to the enforcement of the principle of subsidiarity do not automatically lead to the revocation of the legislative proposals; the decision on this remains with the legislator of the Union. Article 8 of the protocol, however, makes it possible for national parliaments, too. To initiate the annulment procedure indirectly, via the member state.

[36]   Ladenburger, C., FIDE 12 – Session on “Protection of Fundamental Rights post-Lisbon – The interaction between the Charter of Fundamental Rights, the European Convention of Human Rights and National Constitutions” (Institutional Report, Brussels, 2011), at: http://www.fide2012.eu/index.php?doc_id=88,%20at%2048%20ff; p. 13.

[37]   Davis, G., Any Place I Lay My Hat? or: Residence is the New Nationality, in “European Law Journal,” 11,
1, 2005, pp. 43-56.

[38]   von Bogdandy, A., et al, (2012), op. cit., p. 67; for example, the following report formulates concrete requirements in respect of media freedom and pluralism: Report of High Level Group on Media Freedom and Pluralism: A free and pluralistic media to sustain European democracy (January 2013), p. 4.

[39]   Alexy, R., Begriff und geltung des rechts (The Concept and Validity of the Law), 2005, Karl Alber, Freiburg und München; and Alexy, R., On the Concept and the Nature of Law, in Ratio Juris, Vol. 21. Issue. 3. (2008), 281, 299. See Bulygin, E., Alexy’s Thesis of the Necessary Connection between Law and Morality, in Ratio Juris, Vol. 13. Issue 2. (2000), 133, 137; and Alexy, R., On the Thesis of a Necessary Connection between Law and Morality: Bulygin’s Critique, in Ratio Juris, Vol. 13. Issue 2. (2000), 138, 147; Gardner, J., How Law Claims, What Law Claims, in Klatt, M., (ed.): Institutionalized Reason. The Jurisprudence of Robert Alexy, 2012, Oxford University Press, Oxford, 29-44.

[40]   Cfr. von Bogdandy, A., (2009a), op. cit., 22.

[41]   Payandeh, M., The Concept of International Law in the Jurisprudence of H.L.A. Hart, in “European Journal of International Law”, 21/4, 2010, pp. 967-995; Barber, N., Legal Pluralism and the European Union, in “European Law Journal”, 12/3, 2006, pp. 306–329.

[42]   Unger, S., Das Verfassungsprinzip der Demokratie, Tübingen, Mohr Siebeck, 2008; 133.

[43]   Alexy, R., Constitutional Rights, Balancing, and Rationality, in Ratio Juris, 16, 2003, 2; 136.

[44]   See two-element norm structure, Jakab, A., A norma szerkezetének vizsgálata. (“The Examination of the Structure of the Norm”), in Jogelméleti Szemle, 2001/4, http://jesz.ajk.elte.hu/jakab8.html.

[45]   Dworkin, R., Talking Rights Seriously, Cambridge, Harvard University Press, 1997.

[46]   Jakab, A., Concept and Function of Principles. A Critique of Robert Alexy, http:77papers.ssrn.com/sol3/papers.cfm?abstract_id=1918421 (28 August 2009), 5.

[47]          Jakab, A.; Kochenov, D., eds., The Enforcement of EU Law and Values, OUP, 2017; FRA, Opinion on the development of an integrated tool of objective fundamental rights indicators able to measure compliance with the shared values listed in the Article 2 TEU based on existing sources of information, April 2016.

[48]         See e.g. Schindler-case: Point 61 of the judgement of 24th March 1994 in case no. C-275/92. Her Majesty’s Customs and Excise vs. Gerhart Schindler and Jörg Schindler that mentions a «sufficient degree of latitude» (ECR 1994, p. I1039).

[49]          In their judgement the German Federal Costitutional Court expound that, according to the costitutional principle of the rule of law and legitimate expectations, the legislator must exercise “consideration”: he must act proportionality when adopting the framework decision on the European Arrest Warrant. That means that the legislator must make maximum use of the margin allowed by the framework decision, with due respect to the principles set fort in the national constitution.  «The legislator, at any rate, was bound to make use of the margin allowed by the framework resolution for the member state in a manner considerate of the fundamental rights.» BverfG, 2 BvR 2236/04. Point 80. See also Pernice, I., Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited? In Common Market Law Review, 36, 1999, 726.

[50]          The most up-to-date book (published last April), is undoubtedly: Jakab, A.; Dyevre, A.; Itzcovich, G. eds., Comparative Constitutional Reasoning, Cambridge University Press, 2017. This analysis is supported by the examination of eighteen legal systems around the world including the European Court of Human Rights and the European Court of Justice. Universally common aspects of constitutional reasoning are identified in this very recent book, and contributors also examine whether common law countries differ to civil law countries in this respect. This timely and impressive edited collection fills this gap by presenting qualitative and quantitative data from 18 courts and over 700 cases.

[51]   von Bogdandy, A., et al., (2012), 20. Petra L.,, Nyelvpolitika és nyelvi sokszìnűség az Európai Unióban. (Language policy and linguistic diversity in the European Union). Doctoral thesis, 2012, 211-216, Láncos, G., and Orsolya, S., speak with Armin von Bogdandy, Fundamentum, 2011/2, 43.

[52]   Alexy, R., (2005) 133.

[53]   Ladenburger,  C., (2011) 33.

[54]   COM (2003), 606 final, 6. See Judgement of the Court No. c-34/09 of 8 March 2011 (ECR 2011, p. I-1177).

[55]   Cohen, F.S., Transcendental Nonsense and the Functional Approach, “Columbia Law Review”, 35, 1935, pp. 809-49, and Kelsen, H., Reine Rechtslehre, Vienna, Deuticke, 1934, p. 2. Moreover, Ross, A., Tû-Tû, «Harvard Law Review», 70, 1956/57, pp. 820-1; Lindahl, L., Deduction and Justification in the Law. The Role of Legal Terms and Concepts, «Ratio Juris», 17, 2004, pp. 182-202.

[56]   Habermas, J., Citizenship and National Identity, in  Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy 491–516 (1999).

[57]   Lindahl, L., Deduction and Justification in the Law, cit., p. 199.

[58]   Habermas, J., The Crisis of the European Union in the Light of a Constitutionalization of International Law, 23 EURO. J. OF INT’L L. 335, 335-348 (2012). Habermas, J., Bringing the Integration of Citizens into Line with the Integration of States, 18 EURO. L. J. 485, 487 (2012). Joerges, C., Reflections on Habermas’ Postnational Constellation, Vol. 2 XI–XXI (Camil Ungureanu, Klaus Guenther & Christian Joerges eds., 2011).

[59]          See e.g.: Rettet die Würde der Demokratie, Frankfurter allgemeine zeitung, Nov. 4, 2011. A number of these statements are reprinted in Jürgen Habermas, zur verfassung Europas: ein essay 97-129 (2011); a more recent example can be found in his essay in Le Monde of Oct. 27, 2011 (English version available at http://www.presseurop.eu/en/content/article/1106741-juergen-habermas-democracy-stake). Habermas’ entire work is comprehensively documented and updated weekly in the Habermas Forum: http://www.habermasforum.dk, the most recent being, Jürgen Habermas, Merkel’s European Failure: Germany Dozes on a Volcano, in Der Spiegel, 5 (July 2013). A great number of his pertinent essays haverecently been reprinted in the Journal Blätter für deutsche und internationale Politik 3/2014, 85-416 under the title Drer Aufklärer Jürgen Habermas at the occasion of his 85th birthday on June 18, 2014. They can be downloaded freely at http://habermas-rawls.blogspot.dk/2014/06/e-book-der-aufklarer-jurgen-habermas.html.

[60]          See also J. Habermas, A Pact for or against Europe? in What does Germany think about Europe? 83–89 (Ulrike Guérot & Jacqueline Hénard eds., 2011).

[61]   See von Bogdandy, A., Basic Principles, in Principles of European Constitutional Law 13, 44 (Armin von Bogdandy & Jürgen Bast eds., 2010); Scicluna, N., EU constitutionalism in flux? Is the Eurozone crisis precipitating centralisation or diffusion?, 18 EURO. L. J. 489, 500 (2012).

[62]   See Scicluna, N., EU Constitutionalism in the Twenty-first Century: Politics and Law in Crisis 101 (2013) (unpublished Ph.D Thesis, La Trobe University); McCormick, J., Carl Schmitt’s Europe: Cultural, Imperial and Spatial, Proposals for European Integration, 1923-1955, in Darker Legacies of L. in Euro. 133, 141 (Christian Joerges & Navraj S. Ghaleigh eds., 2003).

[63]   Habermas, J., Staatsbürgerschaft und national Identität. Überlegungen zur europäischen Zukunft, Erker Verlag, St. Gallen (Switzerland) 1991; Faktisität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats, Suhrkamp, Frankfurt a.M. 1992, p. 104; Id., The European Nation State. Its Achievements and Its Limitations. On the Past and Future of Sovereignty and Citizenship, “Ratio Juris”, 9, 2, 1996, pp. 125-137; Id., Citizenship and National Identity, “Globalization”, 3, 2003, pp. 155 ss.

[64]          Habermas, J., The Crisis of the European Union in the Light of a Constitutionalization of International Law, 23 EURO. J. OF INT’L L. 335, 335-348 (2012). One can no longer be sure about the seriousness of this distinction. In the preface to his most recent book, Jürgen Habermas, im sog der technokratie. Kleine politische schriften, XII 8 n. 2 (2013), Habermas expresses some discontent with the fact that his public interventions did not make it into the general academic discourses. See also Habermas, J., Bringing the Integration of Citizens into Line with the Integration of States, 18 EURO. L. J. 485, 487 (2012).

[65]          For a reconstruction of Habermas’ works, which, however, seeks to (re-) interpret the author for his own ends, see Joerges, Ch., Reflections on Habermas’ Postnational Constellation, in JÜRGEN HABERMAS, VOL. 2 XI–XXI (Camil Ungureanu, Klaus Guenther & Christian Joerges eds., 2011).

[66]   Heater, D., World Citizenship and Government: Cosmopolitan Ideas in the History of Western Political Thought, St. Martin’s, New York 1996.

[67]   Cf. Manin, B., The Principles of Representative Government, 1997, Cambridge, University Press Cambridge; Manin, B., On Legitimacy and Political Deliberation, in Political Theory, Vol. 15. No. 3. (1987), 338-368; Manin, B.,– Prezeworski, A.,– Stokes, S., Elections and representation, in Manin, B.,– Prezeworski, A.,– Stokes, S., (ed.): Democracy, Accountability, and Representation, 1999, Cambridge University Press, Cambridge; Preuss, U.K., Citizenship and the German Nation, «Citizenship studies», 7, 1, 2003, pp. 37-55; Krajewski, M., Rittstieg, H., German Nationality Law, in Nascimbene, B., (ed.), Nationality Laws in the European Union, Butterworths, London 1996, pp. 357-387.

[68]   Schauer, F., Playing by the Rules, 2002, Clarendon Press, Oxford, 171-184; Balancing, Subsumption, and the Constraining Role of Legal Text, in Law & Ethics of Human Rights, Vol. 4. Issue 1. (2010), 34-45; Thinking Like a Lawyer: A New Introduction to Legal Reasoning, 2013, Harvard University Press, Harvard; The Force of Law, 2015, Harvard, Harvard University Press. As for citizenship and American Constitution, see also L.H. Tribe, American Constitutional Law, The Foundation Press, Mineola (NY) 1988, p. 358.

[69]   Peczenik, A., “Legal Research and Growth of Science”, en Curiel, J. L., Memorias del X congreso mundial ordinario de filosofía del derecho y filosofía social, UNAM, México, vol. V, 1981, pp. 17–28; Nino, C.S., Algunos modelos metodológicos de ‘ciencia’ jurídica, Fontamara, México, 2003, cap. I; Kelsen, H., Teoria Pura del Derecho, UNAM, México, 1982, parágrafos 1-4; 14–18 and 21–22; Ross, A., Sobre el derecho y la justicia, Eudeba, Buenos Aires, 1997, pp. 1–72;  Atienza, M., Ruiz Manero, J., “Dejemos atrás el positivismo jurídico”, in Isonomía, 27/2007, pp. 7–28; Dworkin, R., “In Praise of Theory”, en Arizona State Law Journal, vol. 29, 1997, pp. 353–376; Leiter, B., “In Praise of Realism (and Against Non-Sense Jurisprudence)”, in University of Texas Law, Public Law Research Paper, No. 138, 2010, pp. 1–37; Cohen, F., El método funcional en el derecho, Abeledo Perrot, Buenos Aires, 1962, pp. 11–125.

[70]   Searle, J., Making the Social World: The Structure of Human Civilization, 2010, Oxford University Press, Oxford. See also Searle, J., Mind, Language, and Society: Doing Philosophy in the Real World, 1999, Basic Books, New York. Cf. also TWINING, W., General Jurisprudence: Understanding Law from a Global Perspective, 2009, Cambridge University Press.

[71]   Carens 2014; Bauböck 2005, 2011.

[72]          Prakash, B.S., (2006-05-31). “Only an exit visa”. Retrieved 2008-05-10. See also “Visa Information”. Timatic. IATA. Retrieved 30 April 2017.

[73]    Kostakopoulou, D., Reciprocity and Normativity in Legal Orders, in Netherlands Journal of Legal Philosophy 2014 (43) 2, p. 113.

[74]   Shachar, A., The Birthright Lottery: Citizenship and Global Inequality, Harvard Univ. Press, Cambridge (Mass.) 2009. (The idea was at the center of the continuing debate about the sale and purchase of citizenship, a growing phenomenon, back in vogue in Europe as a result of the Maltese proposal of 12
in November 2013 to introduce a ‘golden passport program‘ that allowed the purchase of the state of Malta citizenship for € 650,000. The debate over birthright lottery is grafted, as noted, the debate began in the years seventy on the topic of moral luck by Bernard Williams and Thomas Nagel). See also Shachar, A., Citizenship as Inherited Property, «Political Theory», 35, 3, 2007, pp. 253-287. A. Shachar, A., Bauböck, R., (eds.), Should Citizenship Be for Sale?, EUI Working Paper RSCAS 2014/01; Williams, B., Moral Luck, Cambridge University Press, Cambridge 1981; Nagel, T., Mortal Questions, Cambridge University Press, New York 1979.

[75]   The idea that a reciprocal relationship is at the foundation of our normative order is central to the modern social contract tradition, from Thomas Hobbes in the seventeenth century to the present. According to that tradition, at least as it is commonly understood, our obligation of obedience to the prescriptions of our rulers stems from the consent of the governed expressed in either an actual or a hypothetical contract. Hume subjected the claim that an actual contract binds future generations to withering criticism. And the alternative claim that there is a hypothetical contract, one to which reasonable individuals would consent, and to which one can thus infer that actual individuals do consent, has been similarly scorned.

[76]   Here focus switchs to Hobbes’s account of reciprocity as the foundational principle of normative, political and legal order – an order that legitimately claims to be a source of obligations for legal subjects or the individuals subject to its rule. – In particular, I want to sketch the theme in political and legal thought of the law as, in Hobbes’s words, ‘the publique Conscience, by which the individual hath already undertaken to be guided.’: Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, 1997).

     See Joseph Raz, ‘Authority, Law, and Morality,’ in Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Oxford University Press, 1994), 194). Hart worried that Raz’s argument resurrected the Hobbesian theme that there is a prior moral obligation to law. (H.L.A. Hart, Essays on Bentham: Jurisprudence and Political Theory (Oxford: Oxford University Press, 1982), 153-61). See also Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, 1969, revised edition); Ronald Dworkin, Law’s Empire (London: Fontana, 1986), 108-13.

[77]   Nevertheless, the idea survives and was given new life by John Rawls in the twentieth century in his essay ‘Justice as Reciprocity,’: John Rawls, ‘Justice as Reciprocity,’ in John Rawls, Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999) 190-208,  and more elaborately in A Theory of Justice: John Rawls, A Theory of Justice (Cambridge, MA : Harvard University Press, 1971).

[78]   See (in alphabetic order): Arts, W., Halman, L. (2004) (eds.) European Values at the Turn of the Millenium, Brill Academic, Leiden; Barbalet, J.M. (1988) Citizenship, Rights, Struggle and Class Inequality, Open University Press, Milton Keynes; Bauböck, R. (1997) ‘Citizenship and National Identities in the European Union’, in Integration durch Demokratie. Neue Impulse für europäische Union, eds. E. Antalosvsky, J. Melchior, S. Puntscher-Riemann, Metropolis, Marburg, pp. 302-20; Bauböck, R., Ersbøll, Groenendijk, K., Wadrauch, H. (eds.) (2006) Acquisition and Loss of Nationality, Policies and Trends in 15 European States, Vol. I Comparative Analyses, Vol. II Coutry Analyses, Amsterdam University Press, Amsterdam; Bauböck, R. (2006) ‘Who are the citizens of Europe?’, in Id., R., Ersbøll, Groenendijk, K., Wadrauch, H. (eds.) Acquisition and Loss of Nationality, Amsterdam University Press, Amsterdam; Bellamy, R., Castiglione D. (eds.) (2004) Lineages of European Citizenship: Rights, Belonging and Participation in Eleven Nation-States, Palgrave Macmillan, London; Bellamy, R., Castiglione D., Shaw, J. (eds.) (2006) Making European Citizens. Civic Inclusion in a Transnational Context,  Plagrave Macmillan, London; Bodin, J. (1583) Six Books of the Commonwealth, Scientia, Aalen, 1977; Borgatta, E. & M. (1992) ‘Citizenship’ in Encyclopedia of Sociology, Macmillan, New York; Boudon, R & Bourricaud, F. (1982) ‘Citoyenneté’ in Dictionnaire critique de la sociologie, PUF, Paris; Brubaker, R. (1992) Citizenship and Nationhood in France and Germany, Harvard University Press, Cambridge (Mass.); Bulmer, M & Ress, A.M. (eds.) Citizenship Today. The Contemporary Relevance of T.H. Marhall, UCL Press, London; Carrera, S. (2005) ‘What Does Free Movement Mean in Theory and Practice in an Enlarged EU’?, in European Law Journal, vol. 11, n. 6, pp. 699-721; Carrera, S. (2006) ‘Legal Migration Law and Policy Trends in A Selection of EU Member States. Briefing Paper’, Directorate-General Internal Policies. Policy Department C – Citizens’ Rights and Constitutional Affairs, European Parliament, July 2006 (copies available at japap@europarl.europa.eu); Colas, D. & Emeri, C. (eds.) (1991) Citoyenneté et nationalité, PUF, Paris; Cordini, G. (1998) Elementi per una teoria della cittadinanza, Cedam, Padova; Dahrendorf, R. (1988) The Modern Social Confict. An Essay on the Politics of Liberty, Weidenfeld and Nicolson, New York; Davis, G. (2005) ‘Any Place I Lay My Hat? Or: Residence is the New Nationality’,  european Law Journal, vol. 11, n. 1, 43-56; Delanty, G., Rumford, C., (2005), Rethinking Europe: Social Theory and the Implications of Europeanisation, Routledge, London; Dollat. P. (1998) La libre circulation des personnes et citoyenneté européenne: enjeux et perspectives, Bruylant, Bruxelles; Düring, I. (1996) Aristoteles. Darstellung und Interpretation seines Denkens, Winter, Heidelberg; Garot, M.J. (1999) La citoyenneté de l’Union européenne, L’Harmattan, Paris; Gerhards, J. (2008) ‘Free to Move? The Acceptance of Free Movement of Labour and Non-discrimination in Europe’, in European Societies, vol. 10, n. 1, pp. 121-140; Giubboni, S. (2007) ‘Free Movement of Persons and European Solidarity’, in European Law Journal, vol. 13, n. 3, pp. 360-379; Groenendijk, K. & Guild, E. (eds.), (2000) Le status juridique des ressortissants de pays tiers résidents de longue durée dans un Etat membre de l’Union européenne, University of Nimega (April); Groot, de G.R. (2004) ‘Towards a European Nationality Law’, in electronic Journal of Comparative Law [online] (Available at: http://www.ejcl.org/83/art83-4.html); Id., (2006) ‘Nationality ‘ in Encyclopedia of Comparative Law, ed. J.M. Smits, Edward Elgar, Cheltenham, pp. 476-492; Giuguet. B. (1999) ‘Citizenship and the Principle of Affectedness’, in R. Bellamy, D. Castiglione, J. Shaw (eds.) Making Citizens. Civic Inclusion in a Transational Context, Macmillan, Palgrave, pp. 56-74; Ifversen, J. (2002) ‘Europe and European Culture – A Conceptual Analysis’, in European Societies, (4) pp. 1-26;  Isin, E.F. & Turner, B.S. (eds.) (2002) Handbook of Citizenship Studies, Sage, London; Janoski, T. (1998) Citizenship and Civil society: A Framework of Rights and Obligations in Liberal, Traditional and Social Democratic Regimes, Cambridge University Press, Cambridge; Jenkins, R. (2008) ‘The Ambiguity of Europe. “Identity Crisis” or “situation normal”?’, in European Societies, vol. 10, n. 2, pp. 153-176; Johnson, C. (1984) ‘Who Is Aristotle’s Citizen?’, Phrónesis: a Journal for Ancient Philosophy, vol. 29, pp. 73-90; Karlson, I. (2007), Europa och turken, Wahlström & Widstand, Stockholm, 2007; Kelsen, H. (1929) ‘La naissance del’Etat et la formation de sa nationalité. Les principles, leur application au cas de la Tchécoslovaquie’, in Revue de droit international, II; Kelsen, H. (1945) General Theory of Law and State, Harvard University Press, Cambridge (Mass.); Krajewski, M. & Rittstieg, H. (1986) ‘German Nationality Law’, in Nationality Laws in the European Union, ed. B. Nascimbene, Butterworths, London, pp. 357-387; Köchler, H. (1999) Decision-making Procedures of the european Institutions and Democratic Legitimacy. How Can Democratic Citizenship be Exercised on the Transnational Level? Report prepared for the Council of Europe, Innsbruck, pp. 1-23; Legarde, P. (1997) La nationalité francaise, Dalloz, Paris; La Torre, M. (1999) (ed.), European Citizenship: An Institutional Challenge, Kluwer Law International, den Haag; Malmborg, M. af, Stråth, B. (2202) (eds.), The Meaning of Europe: Variety and Contention Within and Among Nations, Berg, Oxford; Mann, M. (1996) ‘Ruling Class Strategies and Citizenship’, in Citizenships Today. The Contemporary Relevance of T.H. Marshall, eds. M. Bulmer & A.M. Rees, UCL Press, London; Makarov, A.N. (1962) Allgemeine Lehren des Staatsangehörigkeistsrechts, Kohlhammer, Stuttgart; Marrus, M.R. (1986) Les exclus. Les réfugiés européens au Xxè siècle, Calmann-Levy, Paris; Marshall, T.H. (1950) Citizenship and Social Class and Other Essays, Cambridge University Press, Cambridge; Mindus, P. (2006) ‘[Review of]  European Values at the turn of the Millenium’, in Teoria Politica, 2006:3, pp. 215-219; Mossé. C. (1993) Le citoyen dans la Grèce antique, Nathan, Paris; Offe, C., Preuss, U. (2006) ‘The Problem of Legitimation in the European Polity. Is Democracy the Answer?’, in C. Crouch, W. Streeck (eds.), The Diversity of Democracy, Elgar, Cheltenham; Olsen, J.P. (2002) ‘The Many Face of Europeanisation’, in Journal of Common Market Studies, 40, pp. 921-52; Park, R.E. (1928) ‘Human Migration and the Marginal Man’, in American Jornal of Sociology (may); Preuss, U.K. (2003) ‘Citizenship and the German Nation’, in Citizenship Studies, vol. 7, n. 1, pp. 37-55; Price, P.J. (1997) ‘Natural Law and Birthright Citizenship in Calvin’s Case’, in Yale Journal of Law and the Humanities, Winter, pp. 73-129; Radaelli, C.M. (2004) ‘Europeanisation: Solution or Problem?’ in European Integration online Papers (EIoP), 8 (16); Recchi, E. (2005) Migrants and Europeans: An Outline of the Free Movement of Persons in the EU, Academy of Migration Studies, Working Paper n. 38, Aalborg; Recchi E., (2006) ‘From Migrants to Movers: Citizenship and Mobility in the European Union’, in M.P. Smith, A. Favell (eds.), The Human Face of Global Mobility, Transaction Books, London; Recchi, E. (2008) ‘Cross-state Mobility in the EU: Trends, Puzzles and Consequences, in European Societies, vol. 10, n. 2, pp. 197-224; Rosanvallon, P. (1992) Le sacre du citoyen. 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[79]    Dyzenhaus, D., Reciprocity and Normativity in Legal Orders, in Netherlands Journal of Legal Philosophy 2014 (43) 2, 111. In particular, as for reciprocity and the theory of state, note that the author seeks to demonstrate that reciprocity can be seen as the foundational principle of normative, political and legal order in Hobbes’s social contract theory. Hobbes is commonly understood as demanding an almost unconditional obligation of citizens to follow the commands of the sovereign. Against this authoritarian reading, Dyzenhaus offers a liberal interpretation of Hobbes’s social contract according to which it establishes three kinds of reciprocal relations.

[80]   It is the idea that law is a sufficient condition for individuals to have liberty in the important sense of civil liberty that liberals and others will find problematic. For example, contemporary Republican political theorists, notably Philip Pettit and Quentin Skinner, regard the passages where Hobbes expresses this thought as deliberately aimed at undermining the ideal of a ‘free man,’ articulated by the Republicans of his day, in order to get to the conclusion that one is just as free under the rule of a despot as one is under the rule of a democratic parliament: see Philip Pettit, ‘Liberty and Leviathan,’ Politics, Philosophy, & Economics 4 (2005): 131; Quentin Skinner, Hobbes and Republican Liberty (Cambridge: Cambridge University Press, 2008).

     Pettit and Skinner are correct. But they do not grapple with Hobbes’s actual argument for this claim, an argument that might provide a better foundation for the Republican ideal of freedom as non-domination than either that of the Republicans of Hobbes’s day or of ours. A rare and better appreciation of Hobbes’s achievement is to be found in Michael Oakeshott’s neglected essay, ‘The Rule of Law’: (Michael Oakeshott, ‘The Rule of Law,’ in Oakeshott, On History and Other Essays (Indianapolis: Liberty Fund, 1999), 129).

[81]   See SemiCitizenship in Democratic Politics (Cambridge UP, 2009), The Citizen and the AlienDilemmas of Contemporary Membership by Linda Bosniak; The Birthright Lottery: Citizenship and Global Inequality. Harvard University Press, 2009 by Ayeleth Shachar; The Ethics of Immigration, Oxford, 2013 by Joseph Carens.

[82]   Joseph H. Carens, Aliens and Citizens: The Case for Open Borders, «Review of Politics», 49, 3, 1987, pp. 251-273; R. Bauböck, The Rights of Others and the Boundaries of Democracy, «European Journal of Political Theory», 6, 2007, p. 398.

     See also the cases Laval C-341/05 and Viking C-438/05. A comment in A. Davis, One Step Forward, Two Steps Back? The Viking and Laval Cases in the ECJ, «Industrial Law Journal», 37, 2008, pp. 140-144; A. Davesne, The Laval Case and the Future of Labour Relations in Sweden, «Cahiers européens», 1, 2009, p. 9; A. Menéndez, J. Fossum, The Constitution’s Gift. A Constitutional Theory for a Democratic European Union, Rowman & Littlefield, Lanham, 2011, pp. 144-145. For the incidence of these cases framework on integration European and their meanings cfr. C. Joerges, S. Giubboni, Diritto e politica nella crisi europea, «Rivista critica del diritto privato», 31, 2013, pp. 343-367; C. Joerges, Europe’s Economic Constitution in Crisis in P. Mindus (ed.), European Citizenship: Twenty Years On, monographic number of «German Law Journal», August 2014.

[83]   For an updated bibliography on the issue of open borders, see http://openborders.info/pro-open-borders-reading-list/.

[84]   Mindus, P., Europeanisation of Citizenship within the EU: Perspectives and Ambiguities, in WP SS 2008 n. 2, Jean Monnet Working Papers.

[85]   See also (in alphabetic order): Abizadeh A., Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders, «Political Theory», 36, 1, 2008; Adorno F. (ed.), Dialoghi politici, II, UTET, Torino 1996; Alexander J.C., The Paradoxes of Civil Society, «International Sociology», XII, 2, 1997; Allan D.J., Individual and State in the Ethics and Politics, «Entretiens sur l’Antiquité Classique», IX (La ‘Politique’ d’Aristote), 1964; Allen D., Invisible Citizens: Political Exclusion and Domination in Arendt and Ellison, «Nomos», XLVI, 2005; Alpa G., Status e capacità. La costruzione giuridica delle differenze individuali, Laterza, Bari 1993; Andreski S., Review of M. Bulmer (ed.), Essays on the History of British Sociological Research, «Sociology», 20, 1, 1986; Ampolo C., La politica nella Grecia, Laterza, Bari 1981; Arangio-Ruiz G., Istituzioni di diritto costituzionale italiano, Fratelli Bocca, Torino 1913; Arendt H., Origins of Totalitarism, Harcourt, Brace & Co, New York 1966; trad. it. Origini del totalitarismo, Comunità, Milano 1967; Aristotele, (ed. by Barnes J.), The Complete Works of Aristotle, II, Princeton Univ. Press, Princeton 1984; Id., (ed. by di Lozza G.), La costituzione degli Ateniesi, Mondatori, Milano 1991; Id., (ed. by Jowett B.), Politics, II, Clarendon Press, Oxford 1885; Id., (ed. by Barker E.), The Politics of Aristotle, Oxford University Press, Oxford 1946; Id., (ed. by Newman W.L.), The Politics of Aristotle, Oxford University Press, Oxford 1950 (ed. orig. 1902); Id., (ed. by Viano C.A.), Politica, Utet, Torino 1955; Id., (ed. by Aubonnet J.), Politique, Les belles lettres, Paris 1971; Id., (ed. by Laurenti R.), Politica, in Opere, IX, Laterza, Roma-Bari, 1991; Aron R., Is Multinational Citizenship Possible?, «Social Research», 41, 4, Winter, 1974; Arrhenius G., The Democratic Boundary Problem, in Tersman F. (ed.), Democracy Unbound: Basic Explorations I, Stockholms Universitet, Stockholm 2005; A Arrhenius G., The Boundary Problem in Democratic Theory, in Tersman F. (ed.), Democracy Unbound: Basic Explorations I, Filosofiska institutionen – Stockholms Universitet, Stockholm 2005; Id., Defining Democratic Decision Making, in Svensson F., Sliwinski R., (ed.), Neither/Nor – Philosophical Essays Dedicated to Erik Carlson on the Occasion of His Fiftieth Birthday, LVIII, Uppsala Philosophical Studies, Uppsala 2011; Aubonnet J., Notice du livre III, in Aristotele, (ed. by Aubonnet J.), Politique, Les belles lettres, Paris 1971; Id., Notes complémentaires, in Aristotele, (ed. by Aubonnet J.), Politique, Les belles lettres, Paris 1971; Aymard A., Auboyer J., L’Orient et la Grèce antique, PUF, Paris 1953; Azimi V., Souveraineté nationale et conception française de la citoyenneté, in Gonod P., Dubois J.-P., (ed.), Citoyenneté, souveraineté, société civile, Dalloz, Paris 2003; Baccelli L., Cittadinanza e appartenenza, in Zolo D. (ed.), La cittadinanza. Appartenenza, identità, diritti, Laterza, Roma-Bari 1994; Id., Critica del repubblicanesimo, Laterza, Roma-Bari 2003; Bacon F., Argument in the Case of the Post-Nati of Scotland, (ed. orig. 1608); trans. it. Scritti politici, giuridici e storici, Utet, Torino 1971;  Bacon F., Scritti filosofici, Utet, Torino 1975; Balibar E., Citoyen sujet, «Cahier confrontation», XX, 1989; Baglioni L.G., Sociologia della cittadinanza: prospettive teoriche e percorsi inclusivi nello spazio sociale europeo, Rubbettino, Soveria Mannelli 2009; Balbo L., Cittadini, cittadini dimezzati, non cittadini, «Inquiesta», 4, 1990; Barker E., The Vocabulary of the Politics, in Aristotele, (ed. by Barker E.), The Politics of Aristotle, Oxford Univ. Press, Oxford 1958 (ed. orig. 1946); Balibar E., Les frontières de la démocratie, La découverte, Paris 1992; Id., Nous, citoyens d’Europe? 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Neue Impulse für die Europäische Union, Metropolis, Marburg, 1997; Id., Who Are the Citizens of Europe?, in Bauböck R., Ersbøll E., Groenendijk K., (eds.), Acquisition and Loss of Nationality, Amsterdam University Press, Amsterdam 2006; Id., The Rights of Others and the Boundaries of Democracy, «European Journal of Political Theory», 6, 2007; Id., Stakeholder Citizenship and Transnational Political Participation: A Normative Evaluation of External Voting, «Fordham Law Review», 75, 2007; Id.,  Designing Multilevel Citizenship for the Future EU, paper presented to Meeting European Citizenship: Twenty Years On, University of Uppsala, 03/2013;  Bauböck R., Rundell J., (eds.), Blurred Boundaries: Migration, Ethnicity, Citizenship, Ashgate, Aldershot 1998; Beaud O., Le droit de vote des étrangers: l’apport de la jurisprudence constitutionnelle allemande à une théorie du droit de suffrage, «Revue Française de Droit Administratif», 8, 3, 1992; Beckman L., Citizenship and Voting Rights: Should Resident Aliens Vote?, «Citizenship Studies», 10, 2, 2006; Id., Frontiers of Democracy. The Right to Vote and Its Limits, Palgrave Macmillan, Basingstoke 2009; Beckman L., Erman E., Territories of Citizenship, Palgrave Macmillan, London 2012; Bellamy R., Four Models of European Citizenship, in Bort E., Keat R., (eds.), The Boundaries of Understanding: Essays in Honour of Malcolm Anderson, International Social Sciences Institute 1999; Bellamy R., Political Constitutionalism, Cambridge University Press, Cambridge 2007; Id., Citizenship. A Very Short Introduction, Oxford University Press, Oxford 2008; Bellamy R., Castiglione D., The Normative Turn in European Union Studies: Legitimacy, Identity and Democracy, mimeo, 1999;  Bellamy R., Castiglione D., Shaw J., (eds.), Making European Citizens. Civic Inclusion in a Transnational Context, Macmillan, Palgrave 2006; Beloch K.J., Griechische Geschichte, «Vereinigung Wissenschaftlicher Verleger», III, 1, 1922; Bendix R., Nation Building and Citizenship: Studies of our Changing Social Order, Wiley and Sons, New York 1964; Benhabib S., Transformations of Citizenship, Koninklijke Van Gorcum, Amsterdam 2001; Id., The Claims of Culture, Princeton University Press, Princeton 2002; Id., The Rights of Others: Aliens, Residents and Citizens, Cambridge University Press, Cambridge 2004; Id., The Right to Have Rights: Hannah Arendt on the Contradictions of the Nationstate, in Id., The Rights of Others: Aliens, Residents, and Citizens, Cambridge University Press, Cambridge 2004; Benton M., The Tyranny of the Enfranchised Majority? The Accountability of States to Their Non-Citizen Population, «Res Publica», 16, 4, 2010; Berndt Rasmussen K., Democracy and the Common Good – A Study of the Weighted Majority Rule, Ph.D. diss., Stockholm Univ. Press, Stockholm 2013; Bernstein J.A., Adam Ferguson and The Idea of Progress, «Studies in Burke and His Time», XIX, 2, 1978; Bergström L., Democracy and Political Boundaries, in Tersman F. (ed.), Democracy Unbound – Basic Explorations II, Stockholms Universitet, Stockholm 2006; Berry C.J., Social Theory of the Scottish Enlightenment, Edinburgh University Press, Edinburgh 1997; Bevir M., New Labour. A Critique, Routledge, London/New York 2005.

[86]   Jacobson, D., Rights Across Borders: Immigration and the Decline of Citizenship, John Hopkins University Press, Baltimore 1996, p. 9; A. Shachar, The Birthright Lottery: Citizenship and Global Inequality, Harvard University Press, Cambridge (Mass.) 2009; C. Crouch, K. Eder, D. Tambini (eds.), Citizenship, Markets, and the State, Oxford University Press, Oxford 2001, p. 7; G. Marramao, The Passage West: Philosophy After the Age of the Nation State, Verso, New York 2009; S. Sassen, Globalization and Its Discontents, The New Press, New York 1998, p. xxi; trans. it. Globalizzati e scontenti, Il saggiatore, Milano 2002, p. 19; E. Danticat, Foreword, in O. Fiss, A Community of Equals: The Constitutional Protection of New Americans, Beacon Press, Boston (MA) 1999; D. Leydet, Citizenship, ad vocem, in Stanford Encyclopedia of Philosophy, <http://plato.stanford.edu/entries/citizenship>, in particular pp. 6-14; J. Rawls, Justice as Fairness: Political not Metaphysical, «Philosophy and Public Affairs», 14, 1985, p. 233; R. Dworkin, Law’s Empire, Harvard University Press, Cambridge (Mass.) 1986.

[87]   The argument that boundaries are necessary to avoid a tragedy of the commons, supported by
Rawls in The Law of Peoples, “Critical Inquiry ‘, 20, 1, 1993, p. 39, has been the subject of much criticism by empirical studies on migration, who insisted on immigrants’ contributions economy and society in general. For instance, see Legrain, P., Immigrants: Your Country Needs Them, Princeton University Press, Princeton 2007.

[88]   In particular, Hannah Arendt is probably best known for having coined the following two phrases: ‘the right to have rights’ and ‘the banality of evil.’ She uses the first in the ninth chapter of her book The Origins of Totalitarianism, Schocken Books, New York, 1951.

[89]   R. Bauböck, Immigration and the boundaries of citizenship (1991), Monographs in Ethnic Relations No. 4.

[90]   As for the Arendt’s theory and on this specific point I refer to H. Brunkhorst, Are Human Rights Self-Contradictory? Critical Remarks on a Hypothesis by Hannah Arendt, «Constellations», 3, 1996, pp.190-99; F. Michelman, Parsing “A Right to Have Rights”, «Constellations», 3, 1996, pp. 200 sg.; S. Benhabib, The Right to Have Rights: Hannah Arendt on the Contradictions of the Nation-state, in The Rights of Others: Aliens, Residents, and Citizens, Cambridge University Press, Cambridge 2004, pp. 49 sg.; S. Gosepath, Hannah Arendts Kritik der Menschenrechte und ihr‚ Recht, Rechte zu haben, in Heinrich-Böll-Stiftung (ed.), Hannah Arendt: Verborgene Tradition – Unzeitgemäße Aktualität?, Akademie Verlag, Berlin 2007, pp. 279-290; C. Menke, The “Aporias of Human Rights” and the “One Human Right”: Regarding the Coherence of Hannah Arendt’s Argument, «Social Research Paper», 74, 3, 2007, pp. 739-762, <http://findarticles.com/p/articles/mi_m2267/is_3_74/ai_n24943363/print>; P. Birmingham, Hannah Arendt and Human Rights: The Predicament of Common Responsibility, Morton, Bloomington 2006; S. Parekh, Hannah Arendt and the Challenge of Modernity, Routledge, Oxford 2008; M. Krause, Undocumented Migrants: An Arendtian Perspective, «European Journal of Political Theory», 7, 3, 2008, pp. 331-348; A. Schaap, Enacting the Right to Have Rights: Jacques Rancière’s Critique of Hannah Arendt, «European Journal of Political Theory», 10, 1, 2011, pp. 22-45; M. Goldoni, C. McCorckindale, (eds.), Hannah Arendt and the Law, Hart, Oxford, 2012.

[91]   M. Zürn, Global governance and legitimacy problems, «Government and Opposition», 39, 2004, pp. 260-87; J.K. Schaffer, The boundaries of transnational democracy:Alternatives to the all-affected principle of democratic inclusion, in «Review of International Studies», 1, 2011.

[92]   R. Alexy, On Balancing and Subsumption. A Structural Comparison, en «Ratio Juris», 16 (2003): 433-449: the relationship between constitutional rights and proportionality is one of the main themes of the contemporary constitutional debate. Two basic views are in conflict: the thesis that there exists some kind of a necessary connection between constitutional rights and proportionality analysis, and the thesis that there exists no necessary connection of whatever kind between constitutional rights and proportionality.

[93]   Bauböck, R.,1994. Transnational citizenship: membership and rights in international migration, Aldershot, Edward Elgar.

[94]          To avoid confusions, the author calls a “citizen” only someone who is both granted with the right of political participation and recognized as a full member of the democratic society. People with partial membership status and the partial rights attached to it, are not considered as citizens. Also, the author does not try to disconnect the membership status from the rights and duties of the citizen. On the contrary, rights are determined by membership. Citizenship is a unique full membership status and the recognition of it give legitimacy to participate to collective decisions.

[95]   Bauböck, R., (ed.), 2006, Migration and Citizenship. Legal Status, Rights and Political Participation, Amsterdam University Press, IMISCOE report series, p. 128.

[96]   Rubio-Marín, R., 2000, Immigration as a democratic challenge, Cambridge, Cambridge University Press.

[97]   Torpey, J., 2000, The Invention of the Passport: Surveillance, Citizenship and the State, Cambridge University Press, Cambridge.

[98]   Bauböck, R., 2011, Citizenship and Freedom of Movement, in Roger Smith (ed.), Citizenship, Borders, and Human Needs, Pennsylvania University Press.

[99]   Schwartz, B., ‘The Social Psychology of the Gift,’ American Journal of Sociology 73 (1967): 1-11; Deen, C., Encyclopedia of Global Justice, Springer, New York 2011.

[100]  Ellermann, A., States against Migrants. Deportation in Germany and the United States, Cambridge Univ. Press, Cambridge 2009; Dauvergne, C., Making People Illegal. What Globalisation Means for Migration and Law, Cambridge Univ. Press, Cambridge 2009; Price, M.E., Rethinking Asylum. History, Purpose and Limits, CUP, Cambridge 2009, cap. 2; Dummett, A., The Transnational Migration of People Seen From Within a Natural Law Tradition, in B. Barry, R. Goodin, Free Movement: Ethical Issues in the transnational migration of people and of money, Pennsylvania State University Press, Pennsylvania 1992, pp. 169-180; Turner, B.S., Citizenship Studies: A General Theory, «Citizenship Studies», I, 1, 1997.

[101]  Rubio-Marín, R., 2000, Immigration as a democratic challenge, cit., p. 178.

[102]  Bauböck, R., 2009, “The rights and duties of external citizenship”, in Citizenship Studies, 13 (5): 475-499.

[103]  Carens, J., 2002, “Citizenship and civil society: what rights for residents?”, R. Hansen and P. Weil, eds. Dual nationality, social rights and federal citizenship in the US and Europe: the reinvention of citizenship. Oxford: Berghahn Books, 100–118.

[104]  Carens, J., 2013, The ethics of immigration. New York: Oxford University Press.

[105]  Goodin, R., What Is So Special About Our Fellow Countrymen ?, ‘Ethics’, 98, 4, 1988, pp. 663-686, p. 688. His analysis is a counter example, which shows that, under international law, “We may poison our compatriots’ air, stop their flow of water, deprive them of liberty by conscription, deny them legal remedies for damage to persons and their property – all in a way that we cannot do to nonresident nonnationals”.

[106]  Torpey, J., The Invention of the Passport: Surveillance, Citizenship and the State, Cambridge University press, Cambridge 2000.

[107]  Held, D., Citizenship and Autonomy, in Id., Political Theory and the Modern State, Polity Press, Cambridge 1989, p. 189.

[108]  Carens, J., 2014, “An overview of the ethics of immigration”, cit., citing the European Council 2003,  European Council Directive 2003/109/EC.

[109]  Dauvergne, C., Making People Illegal. What Globalisation Means for Migration and Law, Cambridge University Press, Cambridge 2009, p. 35. But cfr. Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150; UNHCR, Asylum levels and Trends in Industrialized Countries, 2011, available at: <http://www.unhcr.org/4e9beaa19.html>.

[110]  Giddens, A., T.H. Marshall, the State and Democracy, in M. Bulmer, A.M. Rees, (eds.), Citizenship Today, Psychology Press, 1996, p. 65. Contra, cfr. Dahrendorf, R., The Modern Social Conflict, Transaction Publishers, 2011.

[111]  Ellermann, A., States against Migrants. Deportation in Germany and the United States, Cambridge University Press, Cambridge 2009, p. 25; Sassen, S., Losing control? Sovereignty in the Age of Globalization, Columbia University Press, NY 1996.

[112]  Bauböck (2011).

[113]  Pitt-Rivers, J., (2012) ‘The Stranger, the Guest and the Hostile Host: Introduction to the Study of the Laws of Hospitality,’ in Contributions to Mediterranean Sociology, ed. J.G. Peristiany (The Hague: Mouton), 13-31.

[114]  Komter, A., Social Solidarity and the Gift (New York: Cambridge University Press, 2005).

[115]         The international standards, recommendations, reports and policy documents scrutinised show that the main characteristic of temporary migration is that the stay is limited in time, meaning not permanent. Various categories of migrants are usually encapsulated under a “temporary” scheme; these often include categories such as seasonal workers, project-tied workers, specifi cemployment worker, contract workers, students, tourists, trainees, and service providers.

[116]  Bauböck, R., 2011, “Temporary migrants, partial citizenship and hypermigration”, Critical Review of International Social and Political Philosophy, Volume 14, Issue 5. Special Issue: Democratic Citizenship and its Futures.

[117]         The UN has defined an international migrant as “any person who changes his or her country of usual residence.” The change of country of usual residence necessary to become an international migrant must involve a period of stay in the country of destination of at least a year. This standard however presents similar methodological limitations at times of ascertaining the transformative characteristics of human mobilities and the impossibility of capturing people’s intentions into law and policy. The UN differentiates between short-term migration (between three months and a year) and long-term migration (longer than a year) – both, short- and long-term migration can be temporary in nature. The 1990 UN Migrant Workers Convention does not provide defi nitions 30 of temporary migration but of the following three categories that are all temporary: “seasonal worker”, “project-tied worker” and “specific-employment worker.”

[118]         A key message from ILO instruments is that these key labour standards cannot be dependent on time-bound defi nitions of migration. The ILO standards are inclusive in that a lot of the conventions and recommendations cover temporary migration. The 1997 ILO Report of the Tripartite Meeting of Experts on Future ILO Activities in the Field of Migration specifi es that the term time-bound migrants is meant to cover “seasonal workers, project-tied workers, special purpose workers, cross-border service providers, students and trainees but no other categories.” The 2010 ILO publication on a rights-based approach to labour migration lists temporary migration as “referring to admission of workers (sometimes referred to as ‘guest workers’) for a specifi ed time period, either to fi ll year-round, seasonal or project-tied jobs, or as trainees and service providers under Mode 4 (Movement of Natural Persons) of the GATS.

[119]         The term “temporary migration” is normatively charged with a number of assumptions and methodological biases, e.g. temporary migration schemes allow governments to legally discriminate foreign workers and their families; temporary migration also (at least formally) excludes the phenomenon of irregular migration. In the light of this we raise the question as to whether it is still adequate to speak of temporary migration, or whether it would be actually more appropriate to use the terms “temporariness” and “(temporary) mobility” in the conceptual framework of EURA-NET on socio-economic transformative characteristics.

[120]         As the European Committee on Migration of the CoE has highlighted, however, a clear-cut distinction between a temporary and permanent stay might be difficult or even impossible to make in practice. This has meant that the EU free movement of persons aimed to abolish “temporariness” from the very beginning when the EU Treaties were designed. The deregulating rules on the free movement for persons were meant to encourage EU citizens to move to another EU country for the purpose of employment. As regards third country nationals, EU migration law does not expressly provide for a defi nition of “temporary migration”, one could argue that it currently covers a wide range of human mobility experiences for periods of up to five years. This finding could be derived from Council Directive 2003/109/EC on EU long-term resident status for third-country nationals: after five years of legal and continuous residence in a Member State the stay of third-country nationals is considered as “permanent.” The EU Migration Directives regard students, au pairs, seasonal workers, and intra-corporate transferees explicitly as “temporary migrants.” The EU is keen that temporary migration does not become permanent and has displayed an EU policy on return and expulsion for these individuals not to become ‘permanent’: Directive 2014/36 on seasonal workers sets out incentives and safeguards to prevent overstaying or temporary stay from becoming permanent (direct reference is made to Return Directive 2009/52).

[121]         On the international level no one single universal definition of temporary migration exists as the research on international standards, recommendations, reports and policy documents has revealed. However, different international and regional organisations have introduced a number of conceptual features and definitions of relating concepts for the purposes of calculating international migration statistics, or at times of ensuring that international labour standards apply to all migrant workers, independently of whether their mobility project can be labelled as temporary or permanent.

[122]         Although the EU legal framework sets forth different rules for EU citizens (under the Citizens’ Directive 2004/38) and third-country nationals (under the Schengen rules and the Long-Term Residents’ Directive), interestingly the framing of temporariness is the same to both groups; namely the time period up to three months; the time period between three months and five years, which one could argue covers to the EU’s framing of what is temporary for the purposes of European migration law; and the time period after five years which corresponds with the EU’s understanding of permanent residence.

[123]         Under the agreement signed by the Ministry of Internal Affairs and the Italian Postal Service, requests for permits to stay must be submitted to the post office by filling out the application forms (available at all post offices). Upon submission of the request, student must be prepared to show a valid form of ID and the OPEN envelope containing all of the appropriate forms.

The following documentation is required for the first issue of a permit to stay:
copy of the student’s entire passport; copy of a document that certifies registration at the Italian University; copy of an insurance policy that guards against the risk of illness and injury, and that is valid in the pertaining territory for the duration of the stay.

The postal employees will issue a receipt which serves as a documentation of the application’s submission. In the second stage of the process, the student will be given a date to meet with the Police. During this appointment the applicant must bring 4 passport size photographs and they will be digitally fingerprinted. The student will then be given a second date during which he or she must go to the Police to withdraw his or her permit to stay.

[124]  Bauböck (2011), 13.

[125]         See Mindus, P., The Contemporary Debate on Citizenship. Some Remarks on the Erased of Slovenia, «REVUS: Revija za evropsko ustavnost», 9, 2009, <http://sites.google.com/site/revijarevus>, pp. 29-44; Lajh, D., Ramet, S.P., Slovenia, in J. Goehring (ed.), Nations in Transit 2008, Freedom House, Budapest & New York: 2008, pp. 535-552; <http://www.freedomhouse.hu/images/fdh_galleries/NIT2008/NT-Slovenia-final.pdf>.

[126]  Delpla, I., 2014, “Cosmopolitisme ou internationalisme méthodologique”, Raisons politiques, 2014/2 n. 54, pp. 87-102.

[127]  Odmalm, P., Migration Policies and Political Participation. Inclusion or Intrusion in Western Europe?, Palgrave Macmillan, Basingstroke 2005; Bosniak, L., Denationalisation of Citizenship, in A. Aleinikoff, Klusmeyer D., (ed.), Citizenship Today: Global Perspectives and Practices, Carnegie Endowment for International Peace, Washington
2001; http://eudocitizenship. eu/about/fracit, 2013.

[128]  Dahrendorf, R., The Changing Quality of Citizenship, in B. Van Steenbergen, The Condition of Citizenship, Sage, London 1994, p. 12.

[129]  Buchanan, A., ‘Justice as Reciprocity versus Subject-Centered Justice,’ Philosophy and Public Affairs 30(3) (1995): 227-52; Barry, B., Justice as Impartiality (Oxford: Clarendon Press, 1995), 3.

[130]  Rawls, J., A Theory of Justice (Cambridge, MA: Harvard University Press, 1999), 118–123.

[131]  Furman, J., Political Illiberalism: The Paradox of Disenfranchisement and the Ambivalences of Rawlsian Justice, «Yale Law Journal», 1, 1997, pp. 1197-1231; Mindus, P., Sorting Out Modern Emergency Rules – A Theoretical Framework, «Redescriptions. Finnish Yearbook for Political Philosophy», 14, 2010, pp. 109-134.

[132]  Sandel, M., Liberalism and the Limits of Justice (New York: Cambridge University Press, 1982), 87, 179.[132]

[133]  UNHCR, Asylum Levels and Trends in Industrialized Countries; M. Price, Rethinking Asylum. History, Purpose and Limits, Cambridge University Press, Cambridge 2009, p. 8.

[134]  Marshall, T.H., The Right to Welfare and Other Essays, London, 1981, pp. 141-142.

[135]  Schaffer, J.K., Democrats Without Borders. A Critique of Transnational Democracy, Ph.D. diss., Gothenburg Studies in Politics, Göteborg 2008; R. Dahl, Democracy and Its Critics, Yale University Press, New Haven 1989, p. 122; Mapel, D., Fairness, Political Obligation, and Benefits Across Borders, «Polity», 37, 4, 2005, pp. 426-42. See also Abizadeh, A., Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders, «Political Theory», 36, 1, 2008, p. 49.

[136]  Delpla,  I., (2014), 97.

[137]  F. G. Whelan, Democratic Theory and the Boundary Problem, in Liberal Democracy, J. Pennock, J.W. Chapman, (eds.), New York UP, New York 1983. R. Dahl refers to this principle in relation to the ‘problem of unity’ in Democracy and Its Critics, Yale UP, New Haven (Conn.) 1989; Arrhenius, G., The Boundary Problem in Democratic Theory, in Tersman, F., (ed.), Democracy Unbound: Basic Explorations I, Filosofiska institutionen – Stockholms Universitet, Stockholm 2005, pp. 14-29; Bergström, L., Democracy and Political Boundaries, in F. Tersman (ed.), Democracy Unbound – Basic Explorations II, Stockholms Universitet, Stockholm 2006, <http://people.su.se/~folke/Bergstrom.pdf>, pp. 1-25; Saward, M., The Terms of Democracy, Polity Press, Cambridge 1998; Goodin, R., Enfranchising All Affected Interests, and its Alternatives, «Philosophy & Public Affairs», 35, 1, 2007; Hilson, C., EU Citizenship and the Principle of Affectedness, in R. Bellamy, D. Castiglione, J. Shaw, (eds.), Making European Citizens. Civic Inclusion in a Transnational Context, Palgrave Macmillan, NY 2006, pp. 56-74; Brubaker, R., Citizenship and Nationhood in France and Germany, Harvard University Press, Cambridge (Mass.) 1992; Guiguet, B., Citizenship and Nationality: Tracing the French Roots of the Distinction, in La Torre, M., (ed.), European Citizenship: An Institutional Challenge, Kluwer Law International, Den Haag 1999, pp. 95-111; Miller, D., Citizenship and National Identity, Polity Press, Cambridge 2000; De Schutter, H., Tinnevelt, R., (eds.), Nationalism and global justice: David Miller and His Critics, Routledge, New York 2011.

[138]  Somers, M., 1994, “Reclaiming the epistemological “Other”: Narrative and the social constitution of identity”, in C. Calhoun (Ed.), Social theory and the politics of identity (pp. 37-99), Cambridge, Blackwell.

[139]  McAdams, D., 2001, “The psychology of life stories”, in Review of General Psychology, 5 (2), pp. 100-122.

[140]  Bolzman, C., Vial, M., 2007, Migrants au quotidien : les frontaliers. Pratiques, représentations et identités collectives, Zurich, Éditions Seismo, p. 264.

[141]  Turner, B.S., Contemporary Problems in the Theory of Citizenship, in Id. (ed.), Citizenship and Social Theory, Sage, London 1993, p. VII;  Turner, B.S., Citizenship Studies: A General Theory, in «Citizenship Studies», 1997, I, 1, p. 16; Dahrendorf, R., Citizenship and Beyond: The Social Dynamics of an Idea, «Social Research», 41, 1974, pp. 673-701; Walzer, M., Citizenship, in T. Ball, J. Farr, R.L. Hanson, (ed.), Political Innovation and Conceptual Change, Cambridge 1989, p. 213; Weil, P., Access to Citizenship: A Comparison of Twenty-Five Nationality Laws, in T.A. Aleinikoff, D. Klusmeyer, (ed.), Citizenship Today: Global Perspectives and Practices, Washington 2001; Waldrauch, H., Acquisition of Nationality, in R. Bauböck, et al., (ed.), The Acquisition and Loss of Citizenship in EU Member States: Rules, Practices, Quantitative Developments, Amsterdam University Press, Amsterdam 2006; Howard, M.M., The Politics of Citizenship in Europe, Cambridge University Press, Cambridge 2009, pp. 119-147; Goodman, S.W., Integration requirements for Integration’s Sake? Identifying, Categorizing, and Comparting Civic Integration Policies, «Journal of Ethnic and Migration Studies», 36, 4, 2010, pp. 753-772; Joppke, C., Comparative Citizenship: A Restrictive Turn in Europe?, «Journal of law and Ethics of Human Rights», 36, 4, 2008, pp. 1-41.

[142]  Goodin, R., 2007, “Enfranchising All Affected Interests, and Its Alternatives”, in Philosophy & Public Affairs, Volume 35, Issue 1, pp. 40-68.

[143]  Lippman, W., The phantom public, Harcourt & Brace, New York 1925; Id., Public Opinion, Harcourt & Brace, New York 1922; Dewey, J., The Public and its problems, Holt, New York 1927; Saward, M., A critique of Held, in B. Holden (ed.), Global democracy: Key debates, Routledge, London 2000;. Zürn, M., Global governance and legitimacy problems, «Government and Opposition», 39, 2004, pp. 260-87; Schaffer, J., The boundaries of transnational democracy: Alternatives to the all-affected principle of democratic inclusion, in «Review of International Studies», 1, 2011.

[144]  Isin, E.F., Turner, B.S., (eds.), Handbook of Citizenship Studies, Sage, London 2002, p. 9; Marshall, T. Citizenship and Social Class and Other Essays, Cambridge University Press, Cambridge 1950; Bulmer, M., Rees, A., (eds.), Citizenship Today. The Contemporary Relevance of T.H. Marshall, UCL Press, London, 1996; Vincent, A.,  Plant, R., Philosophy, Politics and Citizenship: the Life and Thought of the British Idealists, Basil Blackwell, Oxford 1984; Dahrendorf, R., The Modern Social Conflict. An Essay on the Politics of Liberty, University of California Press, Los Angeles 1988; Brinkmann, C., Citizenship, ad vocem, in Encyclopedia of the Social Sciences, III, Macmillan, New York 1937; Borgatta, M., Encyclopedia of Sociology, Macmillan, New York 1992; Smelser, N., Handbook of Sociology, Sage, Newbury Park (CA) 1988; Theodorson, A., A Modern Dictionary of Sociology, Crowell, New York 1969;  Mitchel, G.D., Dictionary of Sociology, Routledge and Paul, London 1968; Sills, D., International Encyclopaedia of the Social Sciences, MacMillan, New York 1968; Van Gunsteren, H., Notes Towards a Theory of Citizenship, in F.R. Dalmayr (ed.), From Contract to Community. Political Theory at the Crossroads, Marcel Dekker, New York 1978.

[145]  R. Goodin, What Is So Special About Our Fellow Countrymen?, «Ethics», 98, 4, 1988, p. 668.

[146]  Shapiro, I., The Moral Foundations of Politics (New Haven, CT: Yale University Press), 219–20; Näsström, S., ‘The Challenge of the All-Affected Principle’, Political Studies 59, no. 1 (2010): 116–34, Schaffer, J., ‘The Boundaries of Transnational Democracy: Alternatives to the All-Affected Principle’, Review of International Studies, on CJO 2011.doi:10.1017/S0260210510001749.

[147]  Owen, D., 2012, “Constituting the polity, constituting the demos: on the place of the all affected interests principle in democratic theory and in resolving the democratic boundary problem”, in Ethics & Global Politics, Vol. 5, No. 3, pp. 129-152.

[148]  Berndt Rasmussen, K., Democracy and the Common Good – A Study of the Weighted Majority Rule, Ph.D. diss., Stockholm Univ. Press, Stockholm 2013; Tännsjö, T., Future People, the All Affected Principle, and the Limits of the Aggregation Model of Democracy, in T. Rønnow-Rasmussen et. al. (ed.), Hommage à Wlodek: Philosophical papers dedicated to Wlodek Rabinowicz, <http://www.fil.lu.se/hommageawlodek/site/papper/TannsjoTorbjorn.pdf >. Cfr.  Shapiro, I., Democratic Justice, Yale University Press, New Haven 1999.

[149]  Dahrendorf, R., The Changing Quality of Citizenship, in B. Van Steenbergen (ed.), The Condition of Citizenship, SAGE, London 1994, p. 17.

[150]    Maas, W., Creating European Citizens, Rowman & Littlefield, Lanham (MD) 2007; Margiotta, C., Vonk, O., Dual citizenship and dual citizenship laws of the Member States and European citizenship, ‘Right, immigration and citizenship: a quarterly magazine, “A-12, 4, 2010, pp. 13-34; Howard, M., Variations in Dual Citizenship Policies in the Countries of the EU, “International Migration Review”, 39, 3, 2005, pp. 697-720; Howard, M., The Politics of Citizenship in Europe, Cambridge University Press, Cambridge 2009, pp. 74-75; Spiro, P.J., Dual Citizenship as Human Right, “I-CON ‘, 8, 1, 2010, abstracts and p. 128; Faist, T., Kivisto, P., (eds.), Dual Citizenship in Global Perspective. From Unitary to Multiple Citizenship, Palgrave, Macmillan, 2007; Faist, T., (ed.), Dual Citizenship in Europe: From Nationhood to Societal Integration, Ashgate, Aldershot, 2007; Cholewinski, R., Perruchoud, P., MacDonald, E., International Migration Law: Development, Paradigms and Key Challenges, Nasser Press, The Hague 2007, pp. 87-103.

[151]  Bauböck, R., 2005, “Expansive Citizenship – Voting beyond Territory and Membership”, in Political Science and Politics /Volume /Issue 04, pp. 683-68; Bauböck, R., Citizenship and National Identities in the European Union, in E. Antalosvsky, J. Melchior, S. Puntscher-Riemann, (eds.), Integration durch Demokratie. Neue Impulse für die europäische Union, Metropolis, Marburg 1997, pp. 302-20.

[152]         Bauböck, R., (2005) 672.

[153]  Owen, D., (2012) 167.

[154]  “Social heritage”: belongs to Marsahll, (1981) 78.

[155]  Nino C.S., Radical Evil on Trial, Yale University Press, New Haven, 1996; Nozick R., Anarchy, State and Utopia, Basic Books, New York, 1975; Nussbaum M.C., Duties of Justice, Duties of Material Aid. Cicero’s Problematic Legacy, in «Journal of Political Philosophy», 8, 2000, pp. 176-206; Nussbaum M.C.; Glover J., Women, Culture and Development, Oxford University Press, Oxford, 1995; Nussbaum M.C.; Sen A.K., (ed.), The Quality of Life, Clarendon Press, Oxford, 1993; Phillips A., Multiculturalism without Culture, Princeton University Press, Princeton, 2007; Rawls J., Political Liberalism, Columbia University Press, New York, 1993; Rawls J., Reply to Habermas, in «The Journal of Philosophy», vol. XCII, 3, 1995; Rawls J., Tanner Lectures on Human Values, University of Utah Press, Salt Lake City, 1982; Rawls J., The Law of Peoples with “The Idea of Public Reason Revisited”, Harvard College, Harvard, 1999; Rawls J., Collected Papers, S. Freeman, Harvard University Press, Cambridge (Mass.), 1999; Raz J., The Idea of an Overlapping Consensus, in «Oxford Journal of Legal Studies», 7, pp. 1-25, 1987; Raz J., The Morality of Freedom, Clarendon, Oxford, 1986.

[156]  Hammar, Th., Democracy and the Nation-state. Aliens, Denizens and Citizens in the World of International Migration, Averbury/Gower Publ., 1990 Aldershot. As to “voice“: Hirschman, A., Exit, Voice, and Loyalty, Harvard University Press, Cambridge (Mass.) 1970. See also Sassen, S., Losing Control? Sovereignty in the Age of Globalization, Columbia University Press, New York 1996; Shaw, J., The Transformations of Citizenship in the European Union. Electoral Rights and Restructuration of Political Space, Cambridge University Press, Cambridge 2007; Bauböck, R., Stakeholder Citizenship and Transnational Political Participation: A Normative Evaluation of External Voting, «Fordham Law Review», 75, 2007, 2393-2447.

[157]  Lippmann, W., 1922 [1997], Public Opinion, New York, Free Press.

[158]  Beckman, L., Citizenship and Voting Rights: Should Resident Aliens Vote?, “Citizenship Studies”, 10, 2, 2006, pp. 153-65; Beckman, L., Frontiers of Democracy. The Right to Vote and Its Limits, Palgrave Macmillan, Basingstoke 2009; Beckman, L., Erman, E., Territories of Citizenship, Palgrave Macmillan, London 2012; Haynes, J., (ed.), Routledge Handbook on Democratization, Routledge, London 2009, in particular the term «inclusion».

[159]  Young, I., Polity and Group Difference. A Critique of Universal Citizenship, «Ethics», 99, 1989, 250.; Id., Justice and Politics of Difference, Princeton University Press, Princeton, 1990; Parekh, B., British Citizenship and Cultural Difference, in G. Andrews (ed.), Citizenship, Lawrence and Wishart, London 1991, 183; Kymlicka, W.; Norman, W., Return of the Citizen: A Survey of Recent Work on Citizenship Theory, «Ethics», 104, 2, 1994, 223; Heather, D., Citizenship. The Civic Ideal in World History, Politics and Education, Longman, London 1990, 314-45.

[160]  Janoski, T., Citizenship and Civil Society: A Framework of Rights and Obligations in Liberal, Traditional, and Social Democratic Regimes, Cambridge University Press, Cambridge 1998; Heather, D., Citizenship: The Civic Ideal in World History, Politics and Education, Longman, London 1990, p. 293; Van Steenbergen, B., The Condition of Citizenship: An Introduction, in Id. (ed.), The Condition of Citizenship, Sage, London 1994, p. 1. See also Giddens, A., Profiles and Critiques in Social Theory, Macmillan, London 1982; Barbalet, J., Citizenship, Rights, Struggle and Class Inequality, Open University Press, Milton Keynes 1988; Mann, M., Ruling Class Strategies and Citizenship, «British Journal of Sociology», 21, 1997, pp. 339–354; Torpey, J., The Invention of the Passport: Surveillance, Citizenship and the State, Cambridge University Press, Cambridge 2000; Dauvergne, C., Making People Illegal. What Globalisation Means for Migration and Law, Cambridge University Press, Cambridge 2009, p. 124; Shachar, A., The Birthright Lottery: Citizenship and Global Inequality, Harvard University Press, Cambridge (Mass.) 2009.

[161]        Eleftheriadis, P., Citizenship and Obligation, in P. Eleftheriadis, J. Dickson, The Philosophical Foundations of European Union Law, Oxford University Press, Oxford 2012.

[162]  Dryzek, J., Democracy in Capitalist Times; Ideals, Limits and Struggles, OUP, Oxford 1996; Dahl, R., After the Revolution? Authority in a Good Society, Yale University Press, New York 1970, p. 64; Scheuerman, W., Cosmopolitan Democracy and the Rule of Law, «Ratio Iuris», 15, 4, 2002, pp. 439-57; Føllesdal, A., Democracy and Federalism in the European Union, in Id., P. Koslowski, (ed.), Democracy and the European Union, Springer, Berlin 1998; Whelan, F., Democratic Theory and the Boundary Problem, in J. Roland Pennock, J.W. Chapman, (eds.), Liberal Democracy, New York University Press, New York 1983, pp. 13-47; Arrhenius, G., The Boundary Problem in Democratic Theory, in Tersman, F., (ed.), Democracy Unbound: Basic Explorations I, Filosofiska institutionen – Stockholms Universitet, Stockholm 2005, pp. 14-29; Id., Defining Democratic Decision Making, in F. Svensson, R. Sliwinski, (eds.), Neither/Nor – Philosophical Essays Dedicated to Erik Carlson on the Occasion of His Fiftieth Birthday, LVIII, Uppsala Philosophical Studies, Uppsala 2011, pp. 13-29.

[163]  Mindus, P., Global Harmony and Rule of Law: An Empirical-Analytic Approach, in T. Bustamante, O. Onazi (eds.), Global Harmony and the Rule of Law. Proceedings of the 24th World Congress of the IVR, I, F. Steiner Verlag, Leipzig 2012; Rees, A., T.H. Marshall and the Progress of Citizenship, in M. Bulmer, A.M. Rees, (ed.), Citizenship Today – The Contemporary Relevance of T.H. Marshall, UCL Press, London 1996, p. 2.

[164]  Dewey, J., The Early Works, 1882–1898, The Middle Works, 1899–1924, and The Later Works, 1925–1953, Southern Illinois University Press; Dewey., J., The Public and its Problems, Southern Illinois University Press, 2010.

[165]  Rundle, K., Forms Liberate: Reclaiming the Jurisprudence of Lon L. Fuller (Oxford: Hart, 2012), 46-47; Krygier, M., Philip Selznick: Ideals in the World (Stanford: Stanford University Press, 2012), 29-30; Fuller, L., ‘Human Interaction and the Law,’ in The Principles of Social Order. Selected Essyas of Lon Fuller, ed. Winston, K., (Durham: Duke University Press 1981), 211-46, at 213.

[166]  Asen., R., “The Multiple Mr. Dewey: Multiple Publics and Permeable Borders in John Dewey’s Theory of the Public Sphere.” Argumentation and Advocacy 39 (2003).

[167]  L. Prieto, “La limitación de los derechos fundamentales y la norma de clausura del sistema de libertades”, Revista del Insitituto Bartolomé de las Casas, 2008, pp. 429-468; L. Prieto, “El constitucionalismo de los derechos”, Revista Española de Derecho Constitucional, año 24, num. 71, Mayo-agosto 2004, pp. 47-72; L. Ferrajoli, “Derechos fundamentales”, en Id., Derechos y garantías, Trotta, Madrid, 1999; G. Pino, “Conflictos entre derechos fundamentales. Una crítica a Luigi Ferrajoli”, Doxa, 32, 2009, pp. 647-664.

[168]  H. Kelsen, Reine Rechtslehre, 2e éd. (1960),  Pure Theory of Law, Title VI [«Law and State»]; Alf Ross, «On the concepts “State” and “State organs” in Constitutional Law», Scandinavian Studies in Law, vol. V, 1961, pp. 111-129; Harry Eckstein, «On the “Science” of the State», Daedalus, Vol. 108, N°4, The State (Fall, 1979), pp. 1-20; Martin Loughlin, In Defence of Staatslehre, Der staat, 48 (1), pp. 1-28; Michel Troper, Por una teoria juridica del Estado, trad. de M. Venegas Grau, Prologo de Gregorio Peces-Barba, Dykinson, Madrid (1998) [trad. ital. Per una teoria giuridica dello Stato (a cura di Agostino Carrino), Guida, Napoli], Prólogo; Neil MacCormick, «Beyond the Sovereign State», The Modern Law Review, Vol. 56, (No. 1 (Jan., 1993)), pp. 1-18; Neil Walker, «The Idea of Constitutional Pluralism», Modern Law Review, Vol. 65 (2002), 3, pp. 317-359; Paolo Comanducci, «Constitucionalización y neoconstitucionalismo», in P. Comanducci, M. Angeles Ahumada, D. Gonzales Lagier, Positivismo jurídico y neoconstitutionalismo, Madrid, Fundación coloquio jurídico europeo, 2009, pp. 85-121.

[169]  M. Morjé Howard, The Politics of Citizenship in Europe, Cambridge University Press, Cambridge 2009, p. 113; S. Giubboni, Social Rights and Market Freedom in the European Constitution: A Labour Law Perspective, Cambridge University Press, Cambridge 2007; cfr. J.P. Olsen, The Many Faces of Europeanisation, «Journal of Common Market Studies», 40, 2002, pp. 921-52; C.M. Radaelli, Europeanisation: Solution or Problem?, «European Integration online Papers», 16, 8, 2004; G. Delanty, C. Rumford, (eds.), Rethinking Europe: Social Theory and the Implications of Europeanisation, London, Routledge, 2005; J. Gerhards, Free to Move? The Acceptance of Free Movement of Labour and Nondiscrimination in Europe, «European Societies», 10, 1, 2008, p. 135; P. Mindus, Theorizing Conflicts and Politicisation in the EU, in R. Nickel, A. Greppi, (eds.), The Changing Role of Law in the Age of Supra-and Transnational Governance, Nomos, Baden-Baden 2010; E. Recchi, Migrants and Europeans: An Outline of the Free Movement of Persons in the EU, «Aalborg, Academy of Migration Studies, Working Paper Series», 38, 2005; E. Recchi, From Migrants to Movers: Citizenship and Mobility in the European Union, in M.P. Smith, A. Favell, (eds.), The Human Face of Global Mobility, London, Transaction Books, 2006.

[170]  B.S. Turner, Citizenship Studies: A General Theory, «Citizenship Studies», 1, 1, 1997, p. 5; S.M. Lipset, Introduction, in T.H. Marshall, Class, Citizenship, and Social Development, Doubleday, New York 1964, p. XVII.

[171]  N. Bobbio, Fundamento y futuro de la democracia, Conferencia dada el 29 de Abril de 1986 en Aula Magna Escuela de Derecho Universidad de Valparaíso; Luigi Ferrajoli, Michelangelo Bovero, Teoría de la democracia. Dos prospectivas compradas, Instituto Electoral Federal de México, 2001; Margaret Canovan, Taking. Politics to the People: Populism as an Ideology of Democracy, in Y. Meny, Y. Surel (eds.), Democracies and the Populist Challenge, London: Palgrave 2002, pp. 25-44; Mark Bevir, Democratic Governance, Princeton: Princeton University Press, 2010, chapter V, pp. 95-121; Patricia Mindus, Europeanization of Citizenship within the EU: Perspectives and Ambiguities, Jean Monnet Series of Working Paper, 2008.

[172]  All references to John Dewey’s works are to the multivolume series comprising The Early Works, 1882–1898, The Middle Works, 1899–1924, and The Later Works, 1925–1953, edited by Joe Ann Boydston and published by Southern Illinois University Press.

[173]  1) As for “General Theories of Justice”: John Rawls, “Justice as Fairness”, in Philosophical Review Vol. LXVII, 1958; Michael Sandel, Justice. What’s the Right Thing to do? Farrar, Straus and Giroux, 2009. Chapter 6 and 7, pp. 160-206 and 311-313. (Italian translation: Giustizia. Il nostro bene comune, Feltrinelli, Milano, 2010, trans. by Tania Gargiulo).

     2) As for “Justice and Human Rights”: Amartya Sen, “Elements of a Theory of Human Rights”, Philosophy and public affairs 32, No. 4, 2004, pp. 315-356; Steven Lukes “Five fables on human rights”, in Stephen Shute and Susan Hurley (eds.), On Human Rights, Basic Books, New York, 1993. (Spanish translation: “Cinco fábulas sobre los derechos humanos”, en Stephen Shute and Susan Hurley (eds.), De los derechos humanos, Trotta, Madrid, pp. 29-46).

     3) As for “Justice and Identity”: C. Taylor, “Cross-purposes: the Liberal-Communitarian debate”, in N. Rosenblum (ed.), Liberalism and the Moral Life, Harvard University Press, Cambridge 1989, pp. 159-182; tran. It. “Il dibattito fra sordi di liberali e comunitaristi”, in A. Ferrara (ed.), Comunitarismo e liberalismo, Editori Riuniti, Roma 1992, pp. 137-167; C. Taylor, Two theories of modernity, Hastings Centre Report 25 (1995), n. 2, pp. 24- 33; C. Taylor, Hegel, Cambridge University Press, Cambridge 1975; Hegel and Modern Society, Cambridge University Press, Cambridge 1979; trans. It. Hegel e la società moderna, Il Mulino, Bologna 1984; C. Taylor, Sources of the Self. The Making of the Modern Identity, Harvard University Press, Cambridge 1989; tran. It. by R. Rini, Radici dell’io. La costruzione dell’identità moderna, Feltrinelli, Milano 1994; C. Taylor, ‘Atomism’, in Id., Philosophical Papers. Vol. II: Philosophy and the Human Sciences, Cambridge University Press, Cambridge 1985, pp. 187-210; C. Taylor, The Malaise of Modernity, Canadian Broadcasting Corporation, 1991, (The Ethics of Authenticity, Harvard University Press, Cambridge 1991; tran. It. by G. Ferrara degli Uberti, Il disagio della modernità, Laterza, Roma – Bari 1999); C. Taylor, ‘The diversity of goods’, in Sen A., Williams B. (eds.), Utilitarianism and Beyond, Cambridge University Press, Cambridge 1982; trans. It. by A. Besussi, Utilitarismo e oltre, Il Saggiatore, Milano 1984, pp. 165-185; C. Taylor, ‘The politics of recognition’, in Id., Multiculturalism and the Politics of Recognition, Princeton University Press, Princeton 1992; trans. It. by G. Rigamonti, Multiculturalismo. La politica del riconoscimento, Anabasi, Milano 1993, pp. 41-103; C. Taylor, The Malaise of Modernity, Canadian Broadcasting Corporation, 1991, The Ethics of Authenticity, Harvard University Press, Cambridge 1991; trans. It. by G. Ferrara degli Uberti, Il disagio della modernità, Laterza, Roma – Bari 1999; T. Nagel, The Possibility of Altruism, Clarendon Press, Oxford 1970; trans. It. di R. Scognamiglio, La possibilità dell’altruismo, Il Mulino, Bologna 1994; A.C. MacIntyre, After Virtue, University of Notre Dame Press, Notre Dame 1981; trans. It. by P. Capriolo, Dopo la virtù. Saggio di teoria morale, Feltrinelli, Milano 1988, pp. 69-81; M. Sandel, Liberalism and the Limits of Justice, Cambridge University Press, Cambridge 1982; trans. It. by S. D’Amico, Il liberalismo e i limiti della giustizia, Feltrinelli, Milano 1994; J. Rawls, A Theory of Justice, Harvard University Press, Cambridge 1971; trans. It. by U. Santini, Una teoria della giustizia, Feltrinelli, Milano 1982; R. Nozick, Anarchy, State and Utopia, Basic Books, New York 1974; trans. It. by G. Ferranti, Anarchia, Stato, Utopia. I fondamenti dello Stato minimo, Il Saggiatore, Milano 1999; M.N. Rothbard, The Ethics of Liberty, Humanities Press, Atlantic Highlands 1982; trans. It. L’etica della libertà, Liberilibri, Macerata 1996; J. L. Mackie, Ethics. Inventing Right and Wrong, Penguin, Harmondsworth 1977; trans. It. by B. De Mori, Etica: inventare il giusto e l’ingiusto, Giappichelli, Torino 2001; J. McDowell, Mind, Value and Reality, Harvard University Press, Cambrdige 1998; D. Wiggins, Needs, Values, Truth: Essays in the Philosophy of Value, Blackwell, Oxford 1987, 1997, 3 ed.; J. Dancy, Moral Reasons, Balckwell, Oxford 1993; J.J. Rousseau, Les Rêveries du promeneur solitaire, ‘Cinquième promenade’, in Oeuvres complètes, Gallimard, Paris 1959, 1, 1047; J. Habermas, “Anerkennungskämpfe im demokratischen Rechtstaat”, in C. Taylor, Multikulturalismus und die Politik der Anerkennung, Suhrkamp, Frankfurt a. M. 1993, pp. 147-196; trans. It. by L. Ceppa in Ragion pratica II (1994), pp. 132-165, p. 151; T. Nagel, The Possibility of Altruism, Clarendon Press, Oxford 1970; trans. It. by R. Scognamiglio, La possibilità dell’altruismo, Il Mulino, Bologna 1994; Jeremy Waldron Minority cultures and the cosmopolitan alternative, in Will Kymlicka (ed.) The rights of Minority Cultures, Oxford University Press 1995, pp. 93-119.

[174]  I spoke about political participation. But, on the contrary, as for the debate between authority/anarchism, or civil disobedience/fidelity to law, cfr.  Plato, Crito, 50a-54e1; Robert Paul Wolff, In Defense of Anarchism (1970), Harper & Row Publishers, New York, Hagerstown, San Francisco, London, 1976, chapter 1, pp. 3-19;  Joseph Raz, Legitimate Authority, in Id., The Authority of Law, Clarendon press, Oxford, 1979, pp. 3-27; J. Rawls, The Justification of Civil Disobedience, in Hugo Adam Bedau (ed. by), Civil Disobedience: Theory and Practice, Pegasus, Indianapolis-New York, 1969, pp. 239-255;  Ronald Dworkin, Civil Disobedience, in Id., Taking Rights Seriously, Harvard University Press, Cambridge, Massachussetts, 1978, pp. 206-222; Martin Luther King Jr., Letter from Birmingham City Jail, in Hugo Adam Bedau (ed. by), Civil Disobedience: Theory and Practice, Pegasus, Indianapolis-New York, 1969, pp. 72-89; Louis Waldman, Civil Rights-Yes: Civil Disobedience-No (A Reply to Dr. Martin Luther King), in Hugo Adam Bedau (ed. by), Civil Disobedience: Theory and Practice, Pegasus, Indianapolis-New York, 1969, pp. 106-115; Herbert J. Storing, The Case Against Civil Disobedience, in Hugo Adam Bedau (ed. by), Civil Disobedience in Focus, Routledge, London and New York, 1991, pp. 85-102; Arthur Kaufmann, National Socialism and German Jurisprudence from 1933 to 1945, in “Cardozo Law Review”, 9, 1987-1988, pp. 1629-1649; H. Arendt, Eichmann in Jerusalem. A Report on the Banality of Evil (Revised and Enlarged Edition, Viking, New York, 1964, Chapter 8.

[175]  Although some efforts have been made for greater harmonization in of nationality laws, we are still facing a multifaceted and diverse Europe today: H. Schade, The Draft European Convention on Nationality, “Austrian Journal of Public and International Law “, 49, 2, 1995, pp. 99-103; G. R. de Groot, Zum Verhältnis der zu Unionsbürgerschaft den Staatsangehörigkeiten in der Europäischen Union, in P.C. Müller-Graf (ed.), Europäisches Integrationsrecht in Querschnitt, Baden-Baden, Nomos 2002, pp. 67-86; S. Carrera, Legal Migration Law and Policy Trends in A Selection of EU Member States. Briefing Paper, Directorate-General Internal policies. Policy Department C-Citizens’ Rights and Constitutional Affairs, European Parliament, July 2006. See also B.C. Evans, Nationality Law and European integration, “European Law Review », 16, 1991, pp. 190 ss.; the topic was taken up recently by Gerard de Groot, Nationality, ad vocem, in J.M. Smits (ed)., Encyclopedia of Comparative Law, Cheltenham, Edward Elgar, 2006, pp. 476-492.

[176]         Bobbio, N.: (1968). Presente e avvenire dei diritti dell’uomo. In La comunità internazionale 23, 3-18. [English translation by A. Cameron (1996), Human Rights Now and in the Future, pp. 12-31]. In N. Bobbio, The Age of Rights. Cambridge, Polity Press. The threefold distinction of legal positivism as a) an approach to (i.e., a methodology), b) an ideology, and c) a theory of law is drawn by Bobbio, Norberto: Sul positivismo giuridico, in Rivista di filosofia, Vol. 52. (1961), 14-34. Bobbio regarded Kelsen as caught uncomfortably between a purely formal account of law and a substantive position grounded in what he called the “basic norm” underlying all law. See also The Future Of Democracy: A Defence Of The Rules Of The Game (1984, Einaudi, Torino) – to my mind, the most original of his books – State, Government And Society (1985, Einaudi, Torino); The Age Of Rights (1990, Giappichelli, Torino), and  The Problem Of War And The Roads To Peace (1979, Giappichelli, Torino).

[177]  Cfr. M.J. Smith, Ecologism: Towards Ecological Citizenship, University of Minnesota Press, Minneapolis, 1998; D.W. Curtin, Chinnagounder’s Challenge: The Question of Ecological Citizenship, Indiana University Press, Bloomington (Ind.) 1999; H. Newby, Citizenship in a Green World: Global Commons and Human Stewardship, in M. Bulmer, A.M. Rees, (eds.), Citizenship Today, cit., pp. 209 ss.

     A large part of the debate on ecological citizenship today has shifted to issues related to
global justice and the forced migration of climate refugees. For the state, please refer to studies of
IOM: cfr. F. Laczko, C. Aghazarm, (eds.), Migration, Environment and Climate Change: Assessing the evidence, <http://publications.iom.int/bookstore/free/migration_and_environment.pdf>.

     As for political theory profiles, see J. Ödalen, Climate refugees: Normative Problems and Institutional Solutions, in Y. Hagiwara (ed.), Democracy and Governance for Civil Society, Fukosha Publishing, Tokyo 2010, pp. 123-142.

[178]  G. Grisez, ‘The first principle of practical reason: a commentary on the Summa Theologiae I-II, question 94, article 2’, Natural Law Forum 10 (1965), pp. 168-201; G. Grisez, J. Boyle, J. Finnis, ‘Practical principles, moral truth, and ultimate ends’, American Journal of Jurisprudence 32 (1987), pp. 99-151; J. Finnis, Natural Law and Natural Rights, Oxford University Press, Oxford 1980, 19927; trans. It. by F. Di Blasi, Legge naturale e diritti naturali, Giappichelli, Torino 1996.

[179]  See, in alphabetic order: Barry, Brian Theories of Justice, University of California Press, 1989 (Spanish translation: Teorías de la justicia, Gedisa, Barcelona 1995, trans. by Cecilia Hidalgo); Campbell, Tom Justice, Palgrave, 1988-2001 (Spanish translation: La Justicia. Los principales debates contemporáneos, Gedisa, Barcelona 2002, trans. by Silvina Alvarez); Gargarella, Roberto Las teorías de la justicia después de Rawls. Un breve manual de filosofía política, Paidós, Buenos Aires, 1999; Hierro, Liborio L. “El concepto de justicia y la teoría de los derechos” en Elias Dias y José Luis Colomer (eds.) Estado, justicia, derechos, Alianza, Madrid 2002, pp. 11-73; Kelsen, Hans, What is justice, University of California Press, Berkeley, California 1971). (Spanish translation: ¿Que es justicia? en Hans Kelsen ¿Qué es justicia?, Planeta-Agostini, Barcelona 1993, trans. by Albert Calsamiglia, pp. 35-63); Kymlicka, Will, Contemporary political philosophy. An introduction, Oxford University Press 2002, Second edition; Sen, Amartya The idea of justice, Penguin Press, 2009 (La idea de la justicia, Taurus, Madrid 2010, translation to spanish by Hernando Valencia Villa);  Van Parijs, Philippe ¿Qué es una sociedad justa? Introducción a la práctica de la filosofía política, Ariel, Barcelona 1993, translation to spanish by J. A. Bignozzi; Veca, Salvatore La filosofia politica, Laterza, Bari 2005, Fourth edition.; Walzer, Michel The spheres of justice. A defense of pluralism and equality, Basic Books, New York 1993 (Las esferas de la justicia. Una defensa del pluralism y la igualdad. Fondo de cultura económica, México 1993, translation to spanish by Heriberto Rubio).

[180]  A.B. Seligman, The Idea of Civil Society, Princeton University Press, Princeton (New Jersey) 1992, p. 117; M. Bulmer, A.M. Rees, Citizenship in the Twenty-first Century, in M. Bulmer, A.M. Rees, (ed.), Citizenship Today The Contemporary Relevance of T.H. Marshall, UCL Press, London 1996, p. 269; cfr. J. Keane (ed.), Rediscovering Civil Society, Verso, London 1987; Id. (ed.), Civil Society and the State, Verso, London 1988; D. Held, Between State and Civil Society, cit., pp. 19 sg.; R. Dahrendorf, Citizenship and Social Class; trad. it. in Id. Il conflitto sociale nella modernità, cit., pp. 32 sg.; B. Van Steenbergen (ed.), The Condition of Citizenship, cit., in particolare pp. 6 sg.; J. Cohen, Re-thinking Social Movements «Berkeley Journal of Sociology», XXVII, 1983, pp. 97-113; J. Cohen, A. Arato, Civil Society and Social Theory, MIT Press, Cambridge (Mass.) 1992; B.S. Turner, Out-line of a Theory of Citizenship, «Sociology», XXIV, 2, 1990, pp. 189-214; Id. (ed.), Citizenship and Social Theory, cit., in particular pp. 139 ss.; K. Tester, Civil Society, Routledge, London 1992; J.H. Hall, Civil Society: Theory, History, Comparisons, Polity Press, Cambridge 1995; K. Kumar, Civil Society: An Inquiry into the Usefulness of an Historical Term, «British Journal of Sociology», XLIV, 3, 1993, pp. 375-95; M. Muetzelfeldt, G. Smith, Civil Society and Global Governance: The Possibilities for Global Citizenship, «Citizenship Studies», VI, 1, 2002, pp. 55-75; M. Edwards, Civil Society, Polity Press, London 20092;  M. Edwards (ed.), The Oxford Handbook of Civil Society, Oxford University Press, Oxford 2011; P. Hirst, From Statism to Pluralism: Democracy, Civil Society and Global Politics, Routledge, London 2012.

[181]  B.S. Turner, Contemporary Problems in the Theory of Citizenship, cit., p. 4: his intention in developing this particular perspective on citizenship is to avoid this opposition between the two notions of civil society and citizenship. He has already suggested one way in which this hiatus could be avoided, namely by defining citizenship as a set of social practices which define the nature of social membership.

Critique of War Reason. A Perspective on Self-referential Systems, 11th-21st Centuries

This paper is a summary of my 700-page very academic thesis, in Danish, to be published by Aarhus University Press (AUP). A shorter booklet based on it was published by AUP too (November 2014, 250 pages) and so were a number of shorter articles in English, French and German. In Luhmann’s systems theory and in sociology at large there is a missing link consisting in the lack of a sociology of war. A number of German systems theoreticians use Luhmann’s theory to fill that gap. Yet Luhmann (born 1927), who was a soldier and a prisoner of war from age 15-17, would not write a “Der Krieg der Gesellschaft”. The attempt to narrow this lacuna is indeed a heavy burden and a difficult task, in which it is decisive firstly to get the basic distinctions right about a second order observation of war as a conflict system – to be distinct from a military organisational system. This, I do by beginning with a reconceptualization of Carl von Clausewitz’ form analysis and self-description of war from Vom Kriege (1832). The central point is to observe the self-reference of war, or how war became war about war. Conflict is basically a problem of essentially contested communication. Once this historical self-reference established around the 17th century was in place, war became delimited by its structural couplings to religion, mass media (propaganda), finance, welfare for victims and veterans, law, politics and other functional systems. The costs of war increased, reconstituted and transformed modern society in a way that has formed a range of risks and – of course – neglected blind spots.

Continue reading Critique of War Reason. A Perspective on Self-referential Systems, 11th-21st Centuries

Francesco Giacomantonio, Sociologia dell’agire politico (Rome: Studium, 2014)


In his recently published Sociologia dell’agire politico (Sociology of Political Action) Francesco Giacomantonio focuses on the material and cultural conditions that are adversely affecting the possibility for effective political action, where the latter is broadly understood as “the set of all the activities that influence politics or have political repercussions” (16). Notwithstanding the book’s title, in fact, its main concern does not appear to be the study of political action itself, but rather a reflection on the nature and causes of its current crisis.

Giacomantonio understands the analysis undertaken in the book as an exercise in “theoretical sociology”, meaning by this that he does not engage directly with the sociological facts at stake, but tries instead to reconstruct the conceptual coordinates through which such phenomena can be understood and analysed. The central part of the book is devoted to the reconstruction of three leading paradigms that have had an enormous influence on the debate about the sociological conditions in which political action takes place in our societies, as they are expounded in the works of Zygmunt Bauman, Jürgen Habermas and Slavoj Žižek.


Bauman’s account is presented by Giacomantonio as the most “apocalyptic” of the three; its dismal description of the “liquid society” cannot be redeemed by the counter-measures Bauman advocates, such as the appeal to personal responsibility and the re-establishment of a public agora, which appear to be vacuous and unfeasible. A more optimistic outlook, Giacomantonio points out, is the one proposed by Habermas. Even if Habermas insists on the depoliticization of the public sphere brought about by late capitalism and on the technocratic turn of the liberal state, his theory of democracy also points to the communicative resources that can still be mobilized in our societies. Giacomantonio also pauses to consider how Habermas tackles the challenge of multiculturalism and the role of religion in the public sphere. Žižek’s position, finally, is presented as a bold call for radical social change and the re-thinking of the very conceptual landscape on which our politics is taking place. Giacomantonio stresses the importance of Zizek’s reflection on the subject, his appeal to the re-politicization of the economic sphere, and his critique of the neo-liberal order.


In the final part of the book the author draws from the works of the authors discussed in the previous chapters in order to summarize the major sources of the crisis of political action in our societies. The main focus, here, is on the erosion of a shared social space, and of the common meanings and practices that are needed for individual action to have content and purpose, thus creating a world of “freedom without autonomy” (89). The erosion of a shared social space is connected to the privatization of the public sphere, which leaves individuals isolated, vulnerable, and voiceless, as public intellectuals are relinquishing their role and the leading cultural trends promote what Marcuse would have called a “closing of the universe of discourse” (94). Giacomantonio does not seem to have any ready solutions to this predicament; however, he suggests that a good starting point might consist in the rejection of radical individualism, by “freeing ourselves from egocentrism and utilitarianism” and learning “to be better rather than to have the best” (102). The closing pages of the book also remind us of the importance of imagination in politics, because only through imagination we can open the door to moral, cultural and social progress.


Giacomantonio’s reconstruction of the thought of Bauman’s, Hayek’s and Žižek is clear and accurate (only a couple of reservations might be raised, about the idea that Žižek can be taken as “last true heir” of the tradition of the Frankfurt School (84), and what I believe to be an overstatement of the role of religion in Habermas’s account of cohesion in contemporary societies (61-2)). Moreover, Giacomantonio’s choice of Habermas, Žižek and Bauman as guiding references for the critical analysis developed in the book is considered and fruitful; there is no doubt that these three authors deserve attention by whoever wants to reflect on the sociological conditions in which political action takes place in our societies.


Still, Giacomantonio’s way of tackling the issue of political agency seems to be somehow off-target. His analysis throughout the book focuses on the social processes that are depriving members of contemporary societies of the psychological and social resources that are needed for individual action to be meaningful, effective and genuinely free. There is no doubt that the erosion of these preconditions for successful individual action is also affecting the chances for constructive political engagement. However, in democratic politics – and indeed, we might argue with Arendt and other eminent thinkers of our tradition, in any kind of politics – political action is always and essentially the product of joint or collective action, rather than individual action. The crisis of politics in our time concerns above all the constitution and the operation of collective political subjects, and focusing on the sociology of individual action, like Giacomantonio does, tends to obscure this important fact about the ontology and the sociology of politics.


Giacomantonio’s discussion, then, should be taken as a useful – indeed, necessary – preliminary analysis of the sociological conditions that we need to consider when thinking on the possibility of political action. The study of the modes and sources of present and future political action needs to come next, and should have in view collective action as an essential element of politics.

Transnational Discourses between Facts and Norms. Toward a Two-Track Model of the Public Sphere


There is no contradiction, however, between being realistic about the way things are and determined to try to improve those realities. (Yiris Marion Young, Global Challenges)


One of the most pressing tasks of political theory and philosophy today consists in the discussion about global matters. Debates of this sort are exciting as well as demanding for they can no more rely on widely shared assumptions and univocal conceptual tools. Discourses about democracy, law and justice have entered an «abnormal» phase, as Nancy Fraser (2008: 49) puts it quoting Kuhn’s The Structure of Scientific Revolutions. Traditional categories and paradigms of political theorization are being deeply challenged by phenomena such as state sovereignty dilemmas, globalizing movements of capital supported by neoliberal ideologies, ongoing human rights violations, intercultural hybridations, religious identity conflicts and the list goes on. This constellation of tendencies keeps pace with the emergence of new forms of discursive arenas that by means of new Internet-based communication forms constantly cross national borders. In this article, I will focus on the emerging forms of transnational publics from a normative point of view, whose functions, ideals, conditions, limitations are still controversial and contested in present debates.

As a starting point of my analysis, I will take into account the so-called deliberative model of public sphere outlined by Jürgen Habermas and developed further by some of his scholars. Such a model claims to contribute both to constructivist and critical theories of democracy. To begin with, although it might seem to be basically coined by a Westphalian or national, political imaginary, I would like to investigate into how and to what extent the Habermasian idea of public sphere can be translated into a transnational context (1). Furthermore, I aim at briefly unraveling the main skeptical remarks that could be raised against a transnationalizing redraft of the national public. I also argue that, within these discussions, the critical potential of global arenas is wrongly addressed (2). Finally, I will propose a conceptual framework for a transnational critical praxis by sketching out a two-track model of public sphere, whereby its ideal and normative aspects are interwoven with the factual and non-ideal ones.


1. In Between Facts and Norms, Habermas defines «publicity» as «the social space generated in communicative action» (Habermas 1996: 360). A public sphere can be seen as a discursive space in which speakers exchange not simply opinions but opinions that are drawn upon reasons, and are oriented toward rational agreements.

The public sphere is a space that lies between a civil society, which is characterized by free and spontaneous communicative flows, and a political central infrastructure, in which deliberations and decisions take effectively place. The public discursive activity connects these poles in two ways: Firstly, it discerns social problems by filtering the communicative flows of civil society into parliamentary will-formation processes; secondly, it informs civil society of the parliament’s deliberative outcomes and promotes discussions about them. The deliberative practice of political self-determination can develop legitimately only in the interplay between these two poles, the informal public pole and the formal institutional one (Habermas 1996: 275).

One can introduce a further specification by tracing out two different versions of such “bipolarity” that have inspired Habermas’ account of the democratic system: The first one refers to the so called «strong publics/weak publics» model conceived by Nancy Fraser (1993) and the second one to the «center/periphery» model outlined by Bernhard Peters (1993: 340 ff.). According to Fraser, both democratic institutions as well as civil society and public sphere(s) rely on deliberative procedures, that is, on intersubjective communicative practices. The difference between them is that the institutional – «strong» – political deliberation is seen as strongly oriented towards an agreement that leads immediately to practical decisions, whereas the «weak» publics are defined as «wild», «anarchic» and «unrestricted» and don’t have any specific goal. Because of their political responsibility, deliberative institutions are structured according to juridical normative bounds that discipline, direct and limit conversations. The informal deliberation of the weak public sphere, on the contrary, does not know of any limitation, and is always able to spontaneously exercise its pressure and influence on the institutional strong public. As you can see, this model grants much confidence to the real effectiveness of communicative power (Habermas 1996: 307-308).

In Peters’s model, the socio-political system appears as more deeply split between a communicative sphere (periphery) and a not-communicative one (administrative center). In order to be effective in making decisions and politically act, the political «center» has to shorten and cut communicative processes and restrict itself to functional imperatives. According to this model, the political system works mainly within this core area, through the activity of institutional complexes of administration (including the Government), parliamentary bodies, judicial system, party system and so on. The «periphery» is basically composed of two layers: an «inner» periphery, which is located at the edges of the administrative center (universities, public insurance systems, professional agencies and associations, foundations, etc.) and an «outer» periphery, which branches into «customers» and «suppliers» (public agencies and private organizations, business associations, interest groups, charitable organizations, cultural establishments). While the institutions belonging to inner periphery are equipped with rights of self-governance and with various kinds of legislative functions delegated by the state, the outer periphery fulfills various coordination functions on the one hand and voices social problems making broad demands and articulating public interests and needs on the other (Habermas 1996: 354-355). Only this second function of the “offshoot” periphery belongs properly to «the civil-social infrastructure of a public sphere», which works through communicative practices «dominated by mass media»: on the whole, the effect of communicative power is rather modest in Peters’s model (cf. Schuermann: 1999).

Now, in order to keep the communicative normativity of the political system alive, both versions of public sphere must presuppose some idealized conditions. They can be summed up in the following way: a) infinite audience: nobody can be excluded from public discussion; b) no thematic selection: no relevant topic can be excluded; c) freedom from ideology and from power: public discussion must be free of distortions or restrictions in communication; d) negativity: the public sphere is assumed to exert negative, critical tasks as, for example, challenging and undermining crude appeals to prejudices, exposing and contesting every kind of coercion and will manipulation, disclosing and preventing exclusionary mechanisms (cf. Bohman & Rehg 2002: 46-47; Bohman 2004: 133-134).

With regard to Habermas’ general discourse theory, one can point out that these conditions of the public sphere actually match the idealized conditions that are implicit in everyday communicative action and are made partially explicit in the argumentative discourse (Diskurs), especially in moral discourses (Habermas 1999: 43-116). According to the sociological approach that Habermas has developed in his major work, Theory of Communicative Action, the paradigmatic social space for communicative action, the life-world (Lebenswelt), is assumed to be to a great extent free from economic and political domination. In Between Facts and Norms and Habermas’ following political writings, the concept of life-world is, at least partially, translated into that of civil society, while the public sphere can be seen, to put it roughly, as the paradigmatic social space for argumentative discourses about matters of general interest. It is through the mediation of the discursive activity of the public sphere that the spontaneous communicative potential of civil society is able to influence the bargaining and strategic activity of central political institutions. This process is ensured and stabilized by formal juridical procedures that are both factually effective, mainly because of their coercive potential, and normatively legitimating, as they preserve an internal connection with communicative reason.

As Nancy Fraser has lately pointed out in an influential work, such a model of public sphere is shaped, more or less explicitly, by a Westphalian-national framing. According to this account, public opinion would address a national state, which is supposed to be capable of regulating its citizens’ affairs; participants in public discussions are conceived of as fellow members of a bounded political community and the principal topics of discussions would refer to its organization (Fraser 2008: 79-80).

However, as an increasing body of political empirical inquiries shows, the present reality of the public sphere contradicts such Westphalian-national image: Current mobilizations of public opinion seldom stop at the borders of state’s territory, speakers and interlocutors do not constitute a “demos” or a political citizenry and the problems deliberated are frequently inherently trans-territorial and can be neither located nor resolved within national spaces. Moreover, the existence of post-national governance and government forms, international institutions, intergovernmental networks and non-governmental organizations has deeply challenged the sovereignty of the national state.

A normative model of the public sphere should therefore take these factual transformations into account, trying to draw on the emancipatory and critical possibilities of the present constellation. In this regard, Fraser’s specific contribution consists in the reconstruction of the normative conditions of a legitimate and politically efficacious public sphere on a global scale. Briefly stated, such a reconstruction aims at transnationalizing subjects, topics, spaces and modes of public communicative practices (Fraser 2008: 92-96).

It seems to me that Fraser’s position does not represent a criticism of Habermas’ paradigm as robust as she tends to insinuate. Rather, her project can be seen as an attempt to make explicit the global range of the normative conditions implicit in the Habermasian model of the public sphere. As a matter of fact, the concept of public discussion that has been outlined in this model cannot be considered per se as a nationally bounded sphere (cf. Bohman 1998: 205). As I have already suggested, since the peculiarity of the Habermasian idea of publicity is that of being a social space for exchanging and mutually criticizing reasons, this can be seen as the space where the argumentative Diskurse can be concretely realized.

Discourses about moral questions, in particular, have to deal with claims about the universal validity of norms of general concern. These norms seek to be investigated and maintained beyond each particular context and therefore require the broadest possible audience discussing, agreeing or rejecting their context transcending validity. As Habermas had argued in Moral Consciousness and Communicative Action, such a cooperative evaluation of controversial moral claims cannot be decided in a restricted or exclusive circle, like a philosophical or theoretical one, but it is supposed to take place in a «real» process of argumentation that can rely on the «actual» participation (Habermas 1999: 67) of all possibly affected persons.

It seems therefore plausible that these argumentative dynamics can be realized to the highest level of approximation within public spaces that are also not restricted to territorial boundaries. In a recent essay, Habermas explicitly says that communicative flows are inherently characterized by delimiting dynamics (entgrenzende Dynamik), applying also on territorial or national boundaries (Habermas 2007: 436). Such a conception of publicity can be also conveyed by the Habermasian idea of a «subjectless form of communication» (Habermas 1996: 486), namely by a communication that is not performed by a national or territorial subjectivity.


2. Some skeptical remarks might, nevertheless, be raised, and have actually been, against a transnational public sphere paradigm. I propose to simplify the possible different objections by singling out two main types. Let me call the first critical approach realistic skepticism and the second one, legitimacy reductionism.

The realistic skepticism is influenced by the classical approach of international relations (IR) studies, according to which, briefly stated, the global dimension has to be envisioned as a Hobbesian state of nature between Westphalian-national entities. In such a warlike realm all binding commitments to agreement, mutual recognition or responsibility cannot find any fertile ground; peaceful coexistence can only be achieved through an interaction logic based on strategic bargaining, and the only meaningful orienting principle is raison d’état. This implies that global spaces are devoid of any universal shared horizons relying on communicative and discursive integration forms (like a life-world or a civil society) that might ground argumentative and critical publicities. For a realistic skeptical approach, the discursive practices of international arenas cannot be but the result of strategic activities that reflect asymmetries, unbalances and hegemonic conflicts between national and supranational powers.

Since couple of decades, many political theorists have started to challenge the realistic IR paradigm, also prominently relying on Habermasian categories. To begin with, Andrew Linklater revised the young early Habermas’ theory of knowledge, as mainly presented in Knowledge and Human Interests (1968), with the aim of illustrating forms of interaction on the international level not only relying on a «technical», instrumental and strategic interest, but also on a practical and critical one. This second “alternative” kind of interest enables international learning processes that result in diplomatic rules for peaceful cohabitation and, more demanding, universal norms orienting the progress of just global orders (Linklater 1990). Moreover, in his most influential book (cf. Linklater 1998), Linklater develops a critical theoretical framework composed of three dimensions: Firstly, a normative dimension, committed to the justification of «not arbitrary principles» that function as criteria for criticism; secondly, a sociological one, committed to the empirical analysis of exclusionary mechanisms and orders of privileges both on domestic and global levels; and finally, a practical dimension, aimed at reconstructing social emancipatory potentials («moral capitals»).

In the wake of the path opened by Linklater, Harald Müller introduced the Habermasian category of «communicative action» within the IR research field, giving birth to a debate about the conditions of possibility, on the postnational level, for communicative interaction oriented towards agreement (Müller 1994). Without being able to reconstruct this debate here (known as ZIB-Debatte, as it was hosted by the journal called Zeitschrift für Internationale Beziehungen), I would like briefly to mention one objection that may be raised against the possibility of internationalizing the category of communicative action: this way of challenging the realistic IR paradigm may indeed run the risk of projecting the normative idealized stance implied in Habermas discourse theory on an empirical subject-matter (Herborth 2007: 167-168). That is the risk of metaphysically and dogmatically assuming, on the global scale, a factual empirical presence of communicative spaces.

In his attempt of sketching out the basic features of a discursive theory of post-national political and juridical institutions, Habermas seems to be aware of this difficulty. The Habermasian model for a future international order has the main purpose of giving an answer to the question of how to conceive a «global domestic politics without world government». In this regard, Habermas is seeking an intermediary way between an institutional cosmopolitanism that would link the possibility of implementing a global politics with the existence of a world government and the anti-cosmopolitan view of the international order as strictly limited to the recognition of multilateral treaties among fully sovereign states. As a third way, he proposes a multilevel and «heterarchical» account of the global order (cf. Lafont 2008), which consists of three levels: First of all, a «supranational level», which fulfills the vital but circumscribed functions of securing peace and promoting human rights set by the UN Charter; secondly, a «transnational level», where the major powers address global economic and ecological problems within the framework of permanent conferences and negotiation systems[1]; and finally, the already established national level (cf. Habermas 2008b: 312 ff.). The example of the European Union enriches and further complicates the frame (cf. Habermas 2012: 1-70).

In this context, Habermas acknowledges that the transition from classical international law to a post-national “semi-cosmopolitan” order is «plunged in communicative-strategic twilight», that is to say, communicative actions cannot be easily told apart from strategic ones. More explicitly, Habermas states that, in contrast to life-world practices, communicative processes on the post-national level are noticeably «controlled by power» (machtgesteuert) (Habermas 2007: 420). This means that tentative global learning processes, «anticipatory law constructions» (vorgreifende Rechtskonstruktionen) and prudentially and normatively curbed assessments of power are confined to the edges of an «imperialistic politics of power»[2].

Such Habermasian caution in maintaining the effectiveness of a communicative power that transcends national boundaries entitles one to introduce the second kind of skepticism against a transnational public sphere, which is based on what I have previously mentioned as “legitimacy reductionism”. This perspective has been mainly developed by Habermasian scholars and, in contrast to the realistic one, does not a priori bypass the possibility of communication forms that cross boundaries and hypothetically enable overcoming the international state of nature. On the contrary, this kind of skepticism laments rather the factual lack of global (cosmopolitan, supranational, transnational or the like) adequate juridical democratic institutions. According to this position, one can argue that, since the emerging forms of global communication cannot find support in democratic institutions yet, they constitute merely sporadic and aggregative forms of publicity, rather than spaces of mutual accountability, responsiveness, argumentation and critique (Bohman 1998: 212).

This kind of skepticism may be called “legitimacy reductionism” for it seems to take for granted that the most important function of global public spheres actually consists in a contribution to the legitimation process of deliberative democracy. As previously presented within the national frame, the legitimacy-bound role of publicity consists in a mediating and translating activity between civil society and central political institutions. On the global level, this function is assumed not to change: Public spheres have to legitimate political global orders by transforming global public opinion into global democratic decision-making. Nancy Fraser, for instance, asserts the need of constructing


new addresses for public opinion, in the sense of new, transnational public powers that possess the administrative capacity to solve transnational problems. The challenge, accordingly, is twofold: on the one hand, to create new, transnational public powers; on the other, to make them accountable to new, transnational public spheres (Fraser 2008: 98; on the same vein cf. also Bohman 1998: 197; Bohman 2004: 148; Nanz & Steffek 2007: 92-94).


In a recent article, Habermas places himself on this wake, arguing that successful global democratic institutions have to be rooted in some kind of solidarity between citizens. Solidarity would results from learning processes relying on «appropriately extended communicative processes» that «can take on concrete form only as the national public spheres gradually open themselves up to each other» (Habermas 2012: 48).

The condition of possibility of a well-functioning transnational public sphere appears to be thus deeply tied to the condition of the possibility of establishing well-functioning democratic orders above and beyond nation states. This perspective tends to focus only on the transformation of global public opinion into legislative and executive processes, thus underestimating, unfortunately, the negative, critical side of the public sphere. To put it with the categories previously introduced by Fraser, the «anarchic» and «wild» communicative flows of the «weak publics» can play a role within transnational contexts only as they are viewed as resources for the «strong publics», where institutional deliberations take place.

The legitimating function of public deliberation does, however, in a certain sense include the critical function: the legitimacy of norms, institutions and political orders depends, from the normative point of view, on the fact that they are able to shoulder criticism. Correspondingly, if these norms, institutions and orders are to prove their legitimacy, they must stay open to any possible further critique. This ought not to lead us, however, to the equation or confusion of such positive legitimating function of publicity with its negative and critical task. Transnational critical practices do, namely, not necessarily coincide with transnational democratizing processes, both on the domestic and the post-national level. While from the legitimating perspective, the activity of the public sphere aims at achieving a democratic order that should be considered in some way legitimated, the purpose of a critical publicity is that of critically inquiring and problematizing already given, more or less democratic post-national structures.


3. In order to rehabilitate the negative, critical function of publicity, I’m now going to sketch out a two-track model of the public sphere, which is largely inspired by the “dialectical” approach of Habermas’ first major work The Structural Transformation of the Public Sphere (1991). The two-track model I am proposing aims at integrating both the descriptive and diagnostic features of the realistic perspective on international relationships and the normative and counterfactual potential of the communicative paradigm that Habermas and his scholars have been developing since the eighties, on a domestic as well as on a global scale.

In his first important research, Habermas provides an account of the public sphere that intends to closely combine the normative perspective with a historical and diagnostic one. More precisely, the public sphere is here defined both as a normative resource for critique of ideology and as an ideological issue itself subjected to critical analysis. He traces the historical roots of the idea of Öffentlichkeit back to the 18th and 19th century, where, especially in France and England, the emerging bourgeoisie was struggling to impose itself as the hegemonic social class against the aristocracy and the church. The bourgeois public gathered at first in coffee houses and saloons, discussing matters of «common concern» and taking position against the political power of the absolutistic state. It was precisely in this social and cultural milieu that, according to Habermas, the idea of a close link between power and reason, or law and truth, began to make its way into political discourses (Habermas 1991: 53). Habermas identified the presupposition of the rational critical function fulfilled by these public discourses in the idea of equality between peers. The participants in the public spheres were in fact all regarded as equal, that is, as private citizens, property owners and cultivated individuals: «The bourgeois public’s critical public debate took place in principle without regard to all preexisting social and political rank and in accord with universal rules» (Habermas 1991: 54). Alone on this basis, the «authority of the better argument could assert itself against that of hierarchy» (Habermas 1991: 36).

Differently than in other works, in The Structural Transformation of the Public Sphere Habermas makes explicit that the normative contents of his conception of publicity (equality of the participants, universality claim, freedom from power, critical rationality) are rooted in and simultaneously ideologically distorted by a particular historical context that is interwoven by power struggles and by the interests of a particular social group involved in such a struggle. The ideological component of the public sphere can be unraveled as following: A public that denies access to all those who do not share the bourgeois marks – those that do not have any private property, any culture and are not (white) males – cannot properly realize its own concept, that pivots on the intent of a rational and universal critique of power.

This intrinsic contradiction defining the conception of a (bourgeois) public sphere has not failed to disappoint some critical theorists. As some of them have remarked, the overlapping of the normative and the historical level either attributes a normative universal status to historically constituted ideals or seeks ontologically to ground these ideals in the nature of social life. In both cases, this framework weakens the critical approach to historical social relationships, while uncritically accepting its normative stance (Postone 1993: 167-168; Fraser 1993).

I think, on the contrary, that Habermas was well aware of the consequences implied in the two-track structure, both normative and factual, of its public sphere account. In his first work, he emphasizes that the normative critical role of publicity «can be grasped only in relation to that specific phase in the developmental history of civil society as a whole in which commodity exchange and social labor became largely emancipated from governmental directives». He states that «the social precondition for this “developed” bourgeois public sphere was a market that, tending to be liberalized, made affairs in the sphere of social reproduction as much as possible a matter of private people left to themselves and so finally completed the privatization of civil society» (Habermas 1991: 74). The thesis that can be formulated at this point reads as follows: The condition for the public sphere to exercise its critique against one form of power (that of the absolute state and its leading classes) is to be found within another form of power (that of the emerging liberal capitalism).

This structure does not question the normativity of the idea of publicity though. If it is true that the bourgeois public sphere was an ideological construction, it was «more than mere ideology» as well. Ideologies «are not only manifestations of the socially necessary consciousness in its essential falsity», but also «there is an aspect to them that can lay a claim to truth inasmuch as it transcends the status quo in utopian fashion» (Habermas 1991: 88).

In order to maintain the critical potential of a public sphere, whose ideological shape can transcends itself and push reality to change and transformation, I would suggest to combine both the normative and the factual dimensions also on the transnational level. To be sure, the later Habermas also maintains this two-track structure (cf. Habermas 2008a: 168; 179-184), even though he prefers to underline how the empirical and factual world does comply (entgegenkommen) with the ideal normative level (Habermas 2008b: 332). This later outlook fails thus to properly develop the critical side of the public sphere, which mainly just consists in unraveling the disconnection between the factual and the normative side. The purpose of the two-track model that I would like to propose is twofold: Firstly, it aims at sketching out the basic features of a normative frame as enabling condition for transnational critical praxis and, secondly, it aims at re-establishing the historical perspective as a descriptive and diagnostic one.

As normative framing, the transnational public sphere displays more or less the same idealizing conditions previously mentioned in (1): Nobody and no argument can be excluded from public discussion; discussion must be exempt from any form of coercion and manipulation; every participant must be able to take a critical stance toward the statements of other participants. There are also a few other normative conditions that are not given in the traditional Habermasian model but that turn out to be indispensable on the more complex global level. To begin with, Fraser’s plea for a plurality of competing different publics (Fraser 1993: 122-126) assumes now a fundamental weight, since the question of cultural, political and also economic diversity appears as extremely urgent on the transnational level. That is to say, transnational publicity is not to be viewed just as one all-including public sphere, that «can generate a critical vantage point from which to scrutinize civil society» (Held 2010: 41); it must be rather figured out as composed by a multiplicity of diverse specific, contextual (not necessarily national) arenas that stay open to each other. Only an ongoing interpenetration of different publics may facilitate the inclusion of marginal and not-hegemonic voices, thus fostering mutual learning and criticizing processes.

Furthermore, discussions connecting such dispersed and decentered forms of publicity ought to be conceived as not exempt from conflicts. Critical and problematizing practices imply a negativity that cannot be tamed: as Peters states, «the idea of public deliberation is that of reaching an agreement passing through disagreement» (Peters 2001: 665). This agonistic understanding of the public sphere does not deny the possibility of communication oriented towards agreement; it does not share with contemporary realist theorists (e.g. Mouffe) the strong ontological assumption according to which political antagonisms and exclusionary mechanisms are unavoidable and constitutive for political praxis both on the domestic and the international level. Stressing the negative, conflictual element within the rational praxis of communicative and discursive agency makes explicit the condition under which anarchic, untamed publicities maintain a strong critical potential by questioning any (ideological) crystallization of dominant opinions and world-views (cf. Habermas 1996: 308; 357).

After having argued about the critical potential of the public sphere, now the question arises: What is the main target of critical public sphere? I would like to suggest that the very target of the critical praxis is to be understood as the public sphere itself. As historically constituted spaces, transnational forms of publicity have to be described as spaces emerging from a context made of social and political relations of power and domination, asymmetries, hegemony conflicts, hierarchies, struggles for achieving recognition or imposing one’s own interest etc. From a factual perspective, transnational discursive public practices mirror and reproduce these relations.

I would now, finally, like to briefly not that, from this perspective, the two-track account of transnational publicities can reintegrate the realistic approach previously mentioned, yet turning the skepticism into a strong critical negative stance. Critical diagnoses may investigate, for example, how, why and by whom a specific stretch of the transnational public sphere is manipulated; which are the hegemonic (super)-powers and the imposing interests at stake; how real-existing global organizations and institutions that belong both to the global civil society and to transnational political orders (UN or EU entities, CSOs, international courts) are influenced by, or influence such a publicity. A critical conception of the public sphere, to put it with the words of Robert Cox, «does not take institutions and social and power relations for granted but calls them into question by concerning itself with their origins and how and whatever they might be in the process of changing. It is directed toward an appraisal of the very framework for action, or problematic» (Cox 1981: 208). «Critical theory, in my mind, does not propound remedies or make predictions about the emerging shape of things, world order for example. It attempts rather, by analysis of forces and trends, to discern possible futures and to point to the conflicts and contradictions in the existing world order that could move things towards one or other of the possible futures» (Cox 2010).

Thus recapping, a two-track conception of public sphere puts two virtues forward: First, it outlines a normative framework that would enable a transnational critical praxis; second, it prevents the risk of leading overall to a too sanguine view of global affairs by unmasking transnational domination structures that reproduce themselves through discursive public practices.





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[1] Institutions that belong to this level are, inter alia, WHO, ILO, UNHCR, UNESCO, WTO, IMF, World Bank, G8 and G20, etc.

[2] Habermas is here referring to USA foreign politics after 11th September 2001.

Praxis, Sittlichkeit and Communicative Action. On the connection between praxis, Sittlichkeit and communicative action in Aristotle, Hegel, Habermas and Honneth

The concept of praxis is one of the most fundamental concepts in the history of political philosophy from classical antiquity to our time and it is still used as a fundamental concept in contemporary political philosophy. Politics is fundamentally concerned with praxis. The most famous example may be Marx’s statement in the eleventh thesis on Feuerbach, that the philosophers have only interpreted the world in various ways, but the point is to change it (Marx 1968: 341). However, in Marx’s theses on Feurbach and in the later use of the concept of praxis in political philosophy, the close relation between praxis and polis, which was grounded in Aristotle’s political philosophy, is ignored. This close relation was dissolved with the breakdown of the autonomy of the Greek city states around the end of the 4th century BCE. Following this event, the concept of praxis is not used in political philosophy in the same way for a very long time. We have to move forward to Hegel to find a new corresponding political philosophical concept in the history of ideas. Hegel uses his concept of Sittlichkeit as corresponding to the ancient concept of praxis.


The German word Sittlichkeit has no immediate correspondent in English. Sittlichkeit has the same connotation as the Greek word ????, ?thos, but Sittlichkeit has in addition a strong subjective dimension or maybe first of all a subjective dimension. This is the reason why it normally can be translated with the English term ‘Ethical Life’. However, this translation has also the deficit that it is bound to the philosophical concept of ethics, whereas Sittlichkeit, according to Hegel, is bound to general society as well. A possible translation could also be ‘decent life’, ‘social ethics’, ‘societal ethics’ or simply ‘normativity’, but in the following paragraphs the term Sittlichkeit will be used as such.


Hegel’s concept of Sittlichkeit has been central in later political philosophy, but at the same time it has become a difficult concept because Sittlichkeit is no longer understood in the same spontaneous way as it was understood in early 19th century Germany. Therefore it is necessary to complement Sittlichkeit with a new interpretation of the concept of praxis. 


I would like to illuminate this problem by considering Habermas’ and Honneth’s discussion of the concepts of praxis and Sittlichkeit. Both of them take their point of departure in the young Hegel’s essay to formulate a concept of Sittlichkeit, but they reach very different conclusions. Honneth sees, following the young Hegel, that the concept of praxis cannot stand alone, but he is not able to create a new mediation between praxis and Sittlichkeit. The two concepts stand separated by Honneth. Habermas takes his point of departure from the young Hegel as well, but succeeds in reconstructing a concept corresponding to Aristotle’s antique concept of praxis through a new concept of communicative action. Habermas is able to unfold this new concept of praxis with the same complexity and differentiation as was the case for Hegel’s concept of Sittlichkeit. Yet, opposite to Hegel, Habermas’s new concept of praxis calls attention to democracy as the ground for modern Sittlichkeit.



Aristotle’s practical philosophy

The word ‘praxis’ has its origin in the ancient Greek language: ??????, (praxis) refers to performing an action, such as a passing a way, traversing a distance, causing or bringing about an operation. When a project has been fulfilled, it is called ‘well done’, ?? ???????? (eu prattein). It is from this point that Socrates, among others, takes the step to the moral evaluation of life as praxis. According to Xenophon, Socrates speaks about eu prattein as a learning process with reference to realizing the good, eu, and herewith the good life, eudaimonia (Xenophon 1979: I, VI ff.). Herewith has the moral and political significance of the concept of praxis been thematized.


The word ‘praxis’ was later on taken over in classical Latin as a Greek word denoting an act, a deed. It is through Latin and French that the word practizare has been imported into English as the verb ‘to practice’ and the noun ‘practisant’, referring mostly to an instrumental act such as exercising a profession, for example practizare in medicina, to practice medicine (OED: practice). Practice can be used in relation to political, moral, and religious values as well.


There is not a substantial difference between ‘practice’ and ‘praxis’. In English the Greek-rooted ‘praxis’ could even be regarded as subordinated to the Latin-rooted ‘practice’ and the two words can be used as synonymous. However, inspired by the 1960s translation into English of Marx’s early writings (i.e. prior to 1849), ‘praxis’ became a concept to emphasize the moral and political dimension in practice and that is the reason why this concept is used in this paper. Still, it would not change much to use the broader word ‘practice’ (OED: practice; OED: practise, OED: praxis).


In Plato we do not find a systematic development of the concept of praxis. The explanation is that Plato emphasizes reason, logos, and insight, gnosis, as the essential, in opposition to praxis, which is not regarded to have any value in itself. For example, Plato’s Republic (Plato 199; 1965) makes it clear that the fundamental political problem is how the class of leaders of the state can attain the right insight. Correspondingly, the two other classes, the guardians and the craftsmen, are described as practicing in a condition of intellectual blindness. From this perspective, it would simply be without any interest to develop a philosophy of praxis in the political sense. Plato’s concern is first of all insight; praxis is secondary.


Aristotle turns this perspective around. It is Aristotle that systematically develops a concept of praxis as a central concept in his philosophy. Upon the background of Aristotle’s philosophy it is possible to establish a diaeretic schema for praxis that includes the praxis of Gods, plants, animals and human beings, such that they have all their specific form of praxis. According to Aristotle, the concept of praxis becomes one of the grounding concepts for the determination of the human being. It implies both theoretical praxis, the?ria, and practical praxis that can be devised in praxis, concerned with ethical and political action as an aim in itself, and poi?sis, a technical-instrumental action concerned with an external telos or aim.


In the first sentence of The Nicomachean Ethics it is said that praxis strives for a good, although Aristotle makes it clear that praxis cannot be bound to an external absolute idea (Aristotle 1982: I, vi, 13) and therefore should be bound to itself (Aristotle 1982: I, i, 1 ff.). Practical philosophy becomes herewith a separate part of philosophy where the task is to determine praxis as good both in the ethics in relation to the individual person and in the political philosophy in relation to the political community (koin?nia politik?) in the state (polis) (Aristotle 1977:1253a)


For Aristotle there should be an inner connection between the ethical perspective of the single person’s praxis and the political perspective of the person’s praxis in the political community in the polis. The single person cannot govern himself alone by his own reason. It is necessary for him to act upon a higher explicit reason, embedded in the law, and grounded in both phronesis (phron?sis) and reason (nous) (Aristotle 1982: X, ix, 12). In Aristotle’s Politics it is even said that the polis is the ground for the single house (oikos) and the single person (Aristotle 1977: 1253a19 ff.). Praxis as ?thos, ???? can therefore only be realized in the polis. For Aristotle this is a prerequisite and therefore it is also said in the end of the Nicomachean Ethics, as a form of introduction to the Politics, that the polis is prior to the household (oikos) and the single person (ekastos h?m?n) (Aristotle 1977: 1253a19). This unity in the concept of praxis between ?thos and polis is, for Aristotle, self-evident, and this is the reason why he does not invent a special concept like Sittlichkeit to express the inner relation between ethics and the political community in the polis that beforehand and in itself represents ?thos and herewith Sittlichkeit. Praxis is for Aristotle the same as to practice in accordance with ?thos in the polis, the city-state.



The historical dissolution of the relation between praxis, ?thos and polis

From the perspective of the history of ideas, the close relation between praxis, ?thos and polis is dissolved with the breakdown of the autonomy of the Greek city-states in the end of 4th century.


In the Hellenistic and Roman civilisations of the Mediterranean world this relation disappears. The concept of praxis becomes reduced to a concept about personal ethics that only concerns the individual person’s conduct in life, without this being necessarily related to a larger societal context (e.g. the Stoic philosophy of life). The Greek concept of polis acquires a new meaning as well with its translation into Latin. Seneca translates Aristotle’s passage in Politics about the human being as a political being, a z?on politikon (Aristotle 1977: 1253a3), into animalis socialis, a societal animal which implicates that polis is substituted by societas, society, and common ethics (?thos) with individual morals (moralis) (Arendt 1958: 23).


The same is the case in the early Christian theology as can be seen by Augustine, who created a political philosophy in The City of God in which it is a central point that the inner relation between common ethics and society, moralis et societas, understood as the Roman state, has been broken (Augustine 1998). According to Augustine, the common ethics, moralis, has its ground in God’s state and not in the earthly state.


This problematic is taken up anew by Thomas Aquinas in the Middle Ages in his Summa Theologica (St. Thomas 1988) with his introduction of Aristotle’s political philosophy to Christian theology. Thomas Aquinas tries to revive Aristotle’s praxis concept as a unity of ethics (moralis) and society (societas). However, Aquinas’s praxis concept is in the end hold up by a theological metaphysical concept of God and the divine world order. This theological metaphysical construction could not stand against the increasing individualization and secularization of the European society from the Renaissance through the Reformation, where the political and the economic changes posit a totally new agenda and where individualization becomes the new ground for the constitution of the new liberal political philosophy of Hobbes, Locke, Hume, Adam Smith and Kant.



Hegel – Praxis as Sittlichkeit

It is upon this background that Hegel takes Aristotle’s problem about the connection between ?thos and polis up to discussion, not least in his Philosophy of Right (Hegel 1955). Hegel’s Philosophy of Right is one of the most interesting political philosophical treatises about modern society. It presents in the most concentrated form the unity of all the many contradictions of modern society as one expression and concept that, according to Hegel, is the state, ‘der Staat’.


Hegel’s Philosophy of Right is a combination of Plato’s Republic (Plato 1999; 1956) and Aristotle’s Politics (Aristotle 1977). It comprises both a strong Platonic idealism and a form of Aristotelian pragmatic phenomenology. According to Hegel, from a philosophical perspective all contradictions are elevated (aufgehoben) into the unity of state. The state is from a philosophical perspective the precondition for the dynamic development of the contradictions in the institutions of civil society and herewith the upholding of society in a certain balance – at the same time as this development from a genealogical perspective leads socially to the concrete historically existing state (Hegel 1955: §256). This is similar to what we are reading in Aristotle’s Politics when he writes that the city-state (polis) is by nature (physis) before the house (oikos) and any individuality (ekastos h?m?n) (Aristotle 1977: 1253a19).


Hegel summarizes the essential in modern political philosophy, Hobbes, Adam Smith, Rousseau and Kant, and gives them their full place at the same time as they become subordinated to his own political philosophical perspective. 


Behind it all, we find Hegel’s attempt to present a new modern edition of Plato’s Republic. Hegel’s  introduction to the Philosophy of Right is first of all Platonist. As it is explained in the introduction, due to his idealism, Plato has on the one hand presented the Greek ?thos, the Greek Sittlichkeit, as an empty ideal of the Greek nature of ethics (Hegel 1955: 14). On the other hand, according to Hegel, Plato was aware of the fact that his own time was penetrated of a new deeper principle, which Hegel calls ”die freie unendliche Persönlichkeit”, i.e. the free boundless personality, that later on should be brought into history by Christianity, as Hegel has described it in many places (Hegel 1955: 14). It is in connection with this presentation in the introduction that Hegel writes his maybe most discussed and maybe most conservative political philosophical statement as well:


Was vernünftig ist, das ist wirklich;

und was wirklich ist, das ist vernünftig“ (Hegel 1955:14).


This passage could be translated as follows:

“What is reasonable is what real exists,

And what real exists is what is reasonable”


The statement is very conservative because it seems, on the spontaneous level, to identify what is factually given in a society, the facticity, with what is reasonable or maybe even rational. However, if one does only see the conservative political philosophical statement, although this is also the case, one misses the determinate point in Hegel’s presentation that is the idea. The rational is synonymous with the idea (Hegel 1955: 14). The essential point is that Hegel wishes to present the idea in the modern state in a Platonic sense; he wishes to present as well the reason in the modern state, which in an Aristotelian sense contains and mediates the free boundless personality, the family, the institutions of civil society, the concrete state with its different forms of institutions, etc. This is the essential grip of Hegel’s Philosophy of RightIn a paradoxical way, we have to do with an idealistic and at the same time pragmatic form of phenomenology such as it has been described shortly by Hegel himself in the introduction to the Philosophy of Right, where he writes that the essential concern is in the temporal and passing to realize the substantial and immanent (Hegel 1955: 14 – 15).


What Hegel wants to do is to establish a “Staatswissenschaft” or a combination of political philosophy and political science. Herewith Hegel means to understand and describe the state as both reasonable and  ideal (Hegel 1955: 15). In contrast, Hegel abstains from saying anything about how the state ought to be, or how it could be. Hegel’s concern is not to instruct the state but on the contrary to realize ”das Sittliche Universum”, the ethical universe that the state is (Hegel 1955: 16).


It is evident that this project resembles Aristotle’s project. However, for Hegel, it is essential that Christianity stands as the determinate historical event between antiquity and modern times, in the sense that it is with Christianity that the subjective freedom or the free boundless personality comes into history. This is followed up by the individualization, secularization and historical change that have been thematized above.


The consequence is that all the ‘Staatslehre’, all the theory of the state, should be turned around in comparison with the way in which it is presented by Aristotle in the Nicomachean Ethics and Politics. Both treatises open by saying that all is striving towards a good and in Politics it is subsequently said that the highest aim (telos) for the political community is polis, the city-state. Opposite to this is Hegel’s Philosophy of Right, introduced by a determination of the individuality and the free will (Hegel 1955: § 4). Whereas the city-state for Aristotle represents fundamentally the Sittlichkeit, the task for Hegel is to construct and reconstruct the ?thos in the state with a departure in the free will of the individual.


Aristotle can immediately transfer his ethics to the city-state because the city-state is constituted fundamentally after the same model, namely a striving towards the good. In contrast, the situation is totally different for Hegel, because he cannot transfer his original Kantian ethics without mediation to the state. Hegel’s theory is a praxis-oriented conflict theory where the fundamental problem is to describe how the subjective freedom, the free boundless personality, can find itself as a mediated relation at a certain historical moment to a historically determined state. As Hegel states:


“To comprehend what is is the task of philosophy, for what is is reason. As far as the individual is concerned, each individual is in any case a child of his time; thus philosophy, too, is its own time comprehended in thought (Hegel 1955: 16; Hegel 1991: 21).


Hegel’s Philosophy of Right is fascinating because Hegel accomplishes this project about the modern state as a concept about ‘praxis as Sittlichkeit’ in civil society within the state. Hegel’s Philosophy of Right is a new interpretation of the unity between the idealism in Plato’s Republic and the pragmatism in Aristotle’s Politics


Hegel sets with his concept of ‘praxis as Sittlichkeit’ a new agenda for ethics and political philosophy that extends to our time. It is also in Hegel’s spirit (Hegel 1955: 13 – 14) to ask anew whether society has been changed in such a way that his concept of ‘praxis as Sittlichkeit’ has become irrelevant or whether it is still relevant but should be modified and, if so, to what extent.



Honneth – From praxis as a struggle for recognition to post-traditional Sittlichkeit

One of the latest major interpretations of Hegel’s Philosophy of Right is offered in Axel Honneth’s Recht der Freiheit (Honneth 2011). Honneth’s treatise can be seen as an essay developing a new edition of Hegel’s Philosophy of Right for our time, where the concepts of praxis and Sittlichkeit are very central. Therefore it can be interesting to look at how Honneth solves the thematized relation between praxis and Sittlichkeit.


In the introduction, entitled ‘the theory of justice as societal analysis’, Honneth tackles also the afore-mentioned question about the relevance of Hegel’s Philosophy of Right. On the one hand, Honneth emphasizes Hegel’s project about presenting the reasonable in the institutions of his time and to call attention to the fact that Sittlichkeit was already realized in the central institutions of society (Honneth 2011: 16 – 17). On the other hand, Honneth emphasizes that it is not only society, but also the philosophical way of arguing that has changed significantly since Hegel’s time. The normative stability that was found at Hegel’s time has changed towards a greater reflexivity and henceforth greater uncertainty about applicable norms (Honneth: 2011: 17). In addition, the experience of the Holocaust has, according to Honneth, dampened the imagination that there should be a continuous development of reason in society.


It is difficult to see the validity of the latter argument by Honneth. After the major upheaval of the French Revolution and the ensuing Napoleonic wars, it is difficult to see that the normative standards would have appeared more stable at Hegel’s time. The Holocaust may seem to be a trump card, but it might have been used too much. vHowever, Honneth uses this argument as a point of departure for his critique of the fundamental idealistic principle of Hegel’s Philosophy of Right when he writes:


“For us, the children of a materialistic enlightened age, Hegel’s idealistic monism as a precondition for the spirit is not really imaginable. Therefore Hegel’s idea of an objective spirit realized in the social institutions must be grounded in another way” (Honneth 2012: 17).


It is in this formulation that we should find the turning point in Honneth’s presentation of his project in relation to Hegel’s Philosophy of RightIt is not difficult to understand that Honneth could wish to reject Hegel’s central perspective, which he calls “idealistic monism”, and Hegel’s idea about the objective spirit realizing itself in the institutions. Idealistic monism and objective spirit are totally strange concepts for our time. However, the problem is that the interesting thing about the Philosophy of Right is exactly that Hegel, by means of this strange philosophical grip, is able to give a concentrated presentation of modern society that has not its equal in the history of philosophy.


It can be questioned as well whether Honneth escapes from Hegel’s idealism when he introduces the idea of freedom (die Idee der Freiheit) as ground for his theory of justice (Honneth 2011: 18), immediately after having rejected Hegel’s metaphysical ground. It is not so easy to be post metaphysical! 


In our time, we are maybe not able to give a presentation like Hegel’s, but the challenge in Hegel’s presentation is his “idealistic monism”, supported by his idea of “the objective spirit”. In so far as we find Hegel’s monistic one-sided and extreme concentrated presentation interesting, at the same time as we are not able to sustain his metaphysical perspective or simply his idealistic perspective, we are still intellectually challenged to try to find a an acceptable interpretation for our time that, from a philosophical perspective, can compete with Hegel’s presentation. The question is therefore whether it is possible to formulate one sustainable principle for our time that can match Hegel’s metaphysics. 


For Honneth, that is not possible. Honneth’s philosophical interpretation of Hegel declines to a form of sociological oriented societal analysis, i.e. ”Gesellschaftsanalyse” (Honneth 2011: 31), which can be interesting and informative, but lacks the philosophical grip, the philosophical concept’s one-sidedness, that can turn all the perspectives around, and herewith form the ground for the formulation of new concepts of praxis and Sittlichkeit that can be relevant for our time.


Honneth has a concept of praxis as a ‘struggle for recognition’ that he retrieves from the young Hegel and that he develops in his treatise Kampf um Anerkennung (Honneth 1992). The struggle for recognition is a differentiated concept of action that includes love, rights and solidarity (Honneth 1992: 148 ff.) and that has its counterpoint in violence (Vergewaltigung), loss of rights (Entrechtung) and disrespect (Missachtung) (Honneth 212 ff.). Honneth realizes in the end of Kampf um Anerkennung that it is necessary to offer a mediation of a concept of Sittlichkeit that he can thematize formally and shortly (Honneth 1992: 274 ff.). However, in Kampf um Anerkennung, Honneth presents only a formal concept of Sittlichkeit without any substantial or institutional differentiated content. It is this project that Honneth takes up in Das Recht der Freiheit, in which he formulates four premises for his development of a concept of Sittlichkeit.


The first premise is that every society is bound to a common orientation that is grounded in ideals and values. There is therefore always, according to Honneth, a common legitimization problem with respect to justifying values in every society (Honneth 2011: 18). 

The second premise is that justice is not an independent objective standard. It must, according to Honneth, be determined by historical and social standards of value that are indispensable for the reproduction of social values. Honneth speaks in this context about a reconstruction of values and about the necessity to focus on values that are indispensable for the reproduction of a society (Honneth 2011: 20).

The third premise is concerned with the method for such a normative reconstruction. To this end, according to Honneth, Hegel’s concept of Sittlichkeit and Aristotle’s notion of praxis should be recovered as an intersubjective habitual practice and not as predetermined convictions (Honneth 2011: 24).

Finally, there is the fourth premise, namely that it should be possible to criticize values in society mediated through a concept of Sittlichkeit (Honneth 2011: 28). Honneth, for the sake of example, mentions Hegel’s concept of corporations as a platform for critique of the labor market (Hegel 1955: § 250 – § 256).


Honneth’s final conclusion is that such a theory about justice understood as an analysis of society, or Gesellschaftsanalyse, is totally dependent upon the way in which a critical interpretation of social norms in the institutions is done. Such a critical interpretation should make it possible to reconstruct a concept of praxis as a form of “post-traditional Sittlichkeit” (Honneth 2011: 31). 


Honneth’s treatise is formally built up like Hegel’s Philosophy of Right: it comprises parts A, B and C, where part C, like Hegel’s own, produces a great analysis of praxis or Sittlichkeit in the institutions (Honneth 2011: 219 ff.). Hegel’s own presentation in part C is a systematic and dialectic presentation of the dynamic and contradictory constitution of the modern state and civil society. Family and the institutions in civil society form, according to Hegel, a special unity in the state, which is presented both from an actor perspective and a social systemic perspective. In contrast, in Honneth’s work we do not find such a developed unity in the state. Honneth is giving a side-ordered action-oriented presentation of three themes concerning social freedom, namely: personal practice in relation to friendship and family; business practice; and finally political practice with democratic will formation, public sphere, and democratic society based on the rule of law and political culture.


Compared to Hegel, Honneth has an extreme concept of praxis, in so far as all sociality is seen as one-sided, i.e. from an actor perspective. Honneth has no form of social systemic perspective. There is even no economic system, for the economy is only seen under the sociological actor perspective (Honneth 2011: 317 ff.).


Honneth is not able to transform his concept of praxis into a concept of Sittlichkeit. Aristotle’s concept of praxis and Hegel’s concept of ‘praxis as Sittlichkeit’, although in different manners, are essentially related through a series of mediations to polis and state. The consequence of Honneth’s sociologically oriented philosophical perspective is that Honneth has no concept about the state. It is not thematized in a philosophical sense, but only factually, in a sociological and social historic sense. The consequence is that Honneth is not able to thematize  in a philosophical sense ‘praxis as Sittlichkeit’. The paradox here is that Honneth, with his extreme one-sided concept of action, is not able to transform this concept of praxis into a concept of Sittlichkeit. To conclude, Honneth lacks the unifying idea or another form of unifying transmission principle that can mediate the transition from praxis to Sittlichkeit.



Habermas – Praxis as communicative action

It is such a transmission principle that Habermas is able to construct in his theory of communicative action (Habermas 1981). Habermas develops the general cultural historical and cultural political ground for this theory in his cultural-philosophical treatise about the creation and decline of the public sphere, The Structural Transformation of the Public Sphere (Habermas 1962). Habermas develops the more specific philosophical perspective with an initial reference to Hegel’s Jena lectures about the phenomenology of the spirit, 1803-1806 (Habermas 1968: 9). Hegel’s lectures are connected to his fragmentarily developed 1802 System of Sittlichkeit (Hegel 1923b) that, according to Habermas, is influenced by the political economy of the time and is normally seen as a preliminary study to Hegel’s Phenomenology of the Spirit (Hegel 1952), not least in the Marxist tradition (Lukács 1968: 398 ff.).


According to Habermas, Hegel is concerned with a special type of formation (Bildung) of the spirit that later on disappears in his Phenomenology of the Spirit. The spirit’s absolute reflection of itself, subordinated in relation to language, work and Sittlichkeit, is not regarded as essential. On the contrary, according to Habermas, Hegel’s perspective is here that it is the dialectical relation between linguistic symbolization, work and interaction that constitutes the concept of the spirit (Habermas 1968: 10). Thus, it is the three dialectical patterns, linguistic symbolization, work and interaction, which together constitute and penetrate the spirit in its specific forms for the existing consciousness.


With this hermeneutical maneuver Habermas succeeds, following the young Hegel’s Jena lectures, to ground a new concept of praxis that can match Aristotle’s concept of praxis as an all-encompassing concept of action. This concept of praxis is differentiated, like the one by Aristotle, between, on the one hand, interpersonal and social communication and praxis (logos and praxis), and, on the other hand, a teleological doing and technical instrumental action (poi?sis and techn?).


Habermas grounds here his concept of praxis as communicative action, which he develops later in different fields such as ethics, politics, philosophy of law and critical theory. For Habermas it is a central perspective to focus on praxis as Sittlichkeit mediated through communicative action in the institutions of society under a democratic government. Under this perspective, Habermas could be called the philosopher of democracy.


According to Hegel’s Philosophy of Right, the state precedes the family and civil society from a philosophical perspective, whilst the state follows after the family and civil society from a genealogical perspective, and it should finally have a hereditary monarchy that could be able to secure the decisive monological procedures of decision (Hegel 1955: § 281). In contrast, according to Habermas, the state should have a democratic government that not only shall ensure dialogical procedures of decision in the state, but also shall ensure praxis as dialogue and communication as the fundamental relation in the family and institutions of civil society.




In conclusion it can be said that Aristotle grounds a concept of praxis that becomes one of the fundamental concepts in the history of modern political philosophy. Hegel leads this concept further with his concept of praxis as Sittlichkeit. Honneth and Habermas are both grounded in the young Hegel’s writings when they try to extrapolate what is essential in Hegel’s concept of praxis and generate a new concept, which may be valid for our time. Honneth is standing by Hegel’s concept of recognition, which he is subsequently forced to leave many years later when rediscovering Hegel’s concept of Sittlichkeit. However, Honneth fails to reconcile praxis and Sittlichkeit. In contrast, Habermas sets language in a hermeneutic maneuver as a substitute for Hegel’s concept of spirit. With this new, effectively metaphysical concept, he is able to formulate a practical philosophy in which both praxis and Sittlichkeit are summarized in communicative action. Habermas’s practical philosophy follows Hegel’s and extends its roots into the history of ideas, back to Aristotle’s foundation of the concept of praxis and, in a broader sense, to the antique democracy of Athens.



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St. Thomas Aquinas – On Politics and Ethics (1988), Paul Sigmund (red.), New York London, W. W. Norton & Company.

Xenophon (1979), Memorabilia, i: Xenophon in Seven Volumes IV, Memorabilia and Oeconomicus, Symposium and Apology, The Loeb Classical Library 168, Cambridge Massachusetts and London, Harvard University Press.



Ingerid S Straume and J F Humphrey (eds.), Depoliticization: The Political Imaginary of Global Capitalism (Malmö: NSU Press, 2011)

This split, so the thesis goes, aims to stifle any truly creative political critique of our institutions, thereby avoiding genuine structural changes that might hurt private capital’s interests. In this view, ‘depoliticization’ is the diminishing of any public capacity to imagine, create or deploy new forms, such that the depoliticizing political-economy split is an inherently anti-democratic defence of capitalism.

For example, discussion on who should bear the cost of the economic crisis is depoliticised. In business, transnational corporations wriggle out of any democratic scrutiny exercised in national interests. In law, institutions and rights become fixed in a way that can tend to immobilise political thought and action. In the symbolic field, undermining everything, the capacity to think or posit new institutional forms is deadened by fear and indifference.

In this way, runs the thesis, global capitalism feeds on depoliticization, so capitalists promulgate it until the freedom and autonomy of a political life is no longer possible. This authoritarian state is, the book suggests, the inevitable and imminent outcome. However, this is not so much a warning about fascism’s resurgence. Rather it is an intricate, provocative and mostly quite convincing theoretical elucidation of the subtle, sub-conscious architecture on which the current drift towards authoritarianism is constructed. The benefit of this work lies in the way it points out opportunities for a redesign: reconnecting politics with economy – politicising the debate, imagining and implementing new forms – becomes a key objective with a new and significant value.

Depoliticization assembles its tally of authors from five countries, representing over a dozen disciplines spanning economics, history and philosophy as well as political and social theory. There is a preponderance of Scandinavian contributors, but nevertheless the stated intention is to urge more transnational debate on our (perhaps Western) political fate and legacy.

In accordance with its central theme, the essays are organised in two parts: Economy and Politics. Opening with Straume’s more in-depth look at how the depoliticizing political-economy split leads to personal suffering (principally, it detaches us from reality and creativity), part one goes on to dissect capitalism’s ‘economic logic’. Arnason cites Baechler, Wallerstein, Boltanski and Chiapello to expose not only the irrational ‘spirit’ that underpins its multiple manifestations, but also and critically, the social-historical context that spawns it all. D T Cochrane’s ‘power theory’ harmonises Thorstein Veblen and Castoriadis in order to critique Marx’s Labour Theory of Value and pin down capitalism as ‘the valuation of control’. According to Lundkvist, this control commodity is used unaccountably by an oligarchy of transnational corporations to choke off market competition. Their strategically managed alliances and mergers give the lie to any notion of a ‘global free market’. Instead they spiral inexorably towards a ‘capitalist planned economy’. J F Humphrey rounds off part one by connecting the discussion to the current economic crisis. He draws out from Marx how money transforms from a means of exchange to become the ultimate commodity: production determines distribution, exchange and consumption, such that what is produced has no (social) value other than to satisfy the need for accumulation; or as Cochrane might say, control.

Blinkenberg builds on this in part two, working from Jacques Rancière’s argument that money as power requires the exclusion of ‘virtue’ (or perhaps ‘social value’). Rather, an ‘authoritative allocation of values’ ascribes virtue in order to legitimise acceptable political actors. Here depoliticization is a method of ‘value-neutral’ policing that safeguards the hierarchical distribution of power against democratic egalitarianism. Changing the hierarchy’s regimes for ‘truth-production’ by disclosing the function of truth, is what Foucault sees as the purpose of intellectual and political action, according to Jacobsen. Yet relativism, Foucault’s ‘tyranny of perspectives’, means that any claim to objective truth always proceeds from an infinite regression of fundamental hegemonic discourses, dissolving objectivity. Such impotence is perhaps made manifest in Europe’s Kafkaesque language shift from ‘pedagogy’ and ‘education’ to ‘learning’, as argued by Straume. Commodified and assessed by endlessly uncertain tribunals, ‘learning’ comes packed with a capitalist payload of quantitative, computable subtexts: competition, employment, product and again control are deemed virtuous for the ‘entrepreneurial citizen’. The lost ethos of autonomous critique, inspired by love in Castoriadis’ pedagogic scheme, is de-valued, de-personalised and effectively de-commissioned. Finally, Nilsen’s analysis of Stanley Kubrick’s Eyes Wide Shut illustrates the outcome of extreme wealth inequality and a switch from ‘productive capitalism’ (growth) to ‘finance capitalism’ (no growth). This is demonstrably a grand repetition of deteriorating trust, consciousness and intelligence that sets up the apparently imminent, unavoidable descent into despotism and dictatorship.

But democracy’s shallow grave may not be dug yet. If you’re prepared to bury your head in the text and not the ground, you can find some genuinely useful arguments here.  For example, Cochrane’s frankly excellent reading of capitalism as ‘the valuation of control’ provides a strong theoretical case for competing to command assets socially. Similarly Straume’s first essay shows that depoliticization rests on the inability to provide ‘sufficiently robust meaning’, such that teaching critical thinking to every citizen becomes a political as well as an educational mission.

‘Depoliticization’ is not directly addressed in every essay; for some it remains at the side. However, the papers overlap each other well enough to be stitched together with a good narrative, and so the eight authors cover the theme well. Collectively, they delve deep into capitalism’s depoliticizing traits, often working at the level of language and meaning. There are some quite fascinating technical constructions offered in explanation of unconscious or unobvious shifts, such as: controlled ‘free markets’; consumption determined by production; or money, power and control commodified for accumulation. There are also references to more popular economics (Stiglitz and Soros for example) and the odd graph (not listed in the contents) to explain relevant numeric data.

Given their intensity and density, some of the essays are wonderfully clear although in at least two, the author’s purpose or line of thought becomes obscured; whether by poor writing or poor translation is unclear. More of a practical problem was the lack of an index; while the use of footnotes rather than endnotes means locating a cited source requires endless flicking.

But the only real issue was in terms of a personal take on ideas. For me the capitalist paradigm of ‘growth’ appears to be accepted without question, despite its physical impossibility. Moreover, there was a tendency to dismiss ‘logic’ or ‘evidence’ too readily, while quantity always seemed subordinate to quality. I would have liked to have seen these points more clearly and fully discussed, not lost in the background as ‘value-neutral’ givens. But then, this is not so much a criticism of the work as a rejoinder to the discussion; which the authors would surely welcome.

Die Versprachlichung des Sakralen: The Transformation of the Authority of the Sacred into Secular Political Deliberation in Habermas’ Theory of Communicative Action

Taking Weber’s thesis in consideration, it seems difficult to uphold Habermas’ thesis about a happy transformation of the sacred into deliberation. The consequence is that morality can only be successful in so far as the validity claims of communicative ethics can be institutionalized in modern society without any reference to holiness. This seems also to be the general conclusion in Habermas’ work – ironically apart from his theory of secularization.

Cornelius Castoriadis’ theory of the imaginary institution and Claude Lefort’s theory of the empty place of the political as a new insecure moral ground for modern society are presented together as an alternative theory of secularization which can serve as a new framework for Habermas’ theory of communicative ethics and deliberative politics in modern society.


  • Die Versprachlichung des Sakralen 

It has been astonishing to observe over the last decade a growing interest for religion not only in more or less premodern societies around the world, but also in the western world. The many theories about secularization seem to have been shocked by this reappearance of religion and this can give a good reason to reconsider what could be a common ground for a modern secular society. Here I find the German philosopher Jürgen Habermas’ thesis about die Versprachlichung des Sakralen, the linguistification of the sacred, especially interesting, because Habermas has formulated an optimistic theory about how the sacred could be safeguarded in a harmonious transformation into deliberation in modern society. By discussing this theory the aim should be to try to understand why secular society has not been safeguarded from discussions of religion such as has been the case in the last decade.

In connection with his development of the theory of communicative action, Habermas claims that the sacred is transformed in a positive way and can take the form of free deliberation in society (Habermas 1981, II: 118 ff.; Habermas 1989, II, 77 ff.). Habermas speaks in this connection about die Versprachlichung des Sakralen. The thesis is that the authority which could be found in religion, and which is of fundamental significance for the integration of pre-modern societies, is taken over by modern society in forms of deliberation.

Habermas develops this thesis in a discussion of Durkheim’s religious-sociological considerations about the transformation from mechanical to organic solidarity. Durkheim indicates this transformation of the authority of law from unconditional, which is exercised through punishment, to contractual, which is exercised through debate, proceedings and compromise. Habermas interprets this transformation of law in saying that the contract represents a linguistic transformation of law that has similarities with the linguistic transformation of the authoritative character of religions in modern society. But so far as I can see, this argument is not valid because we cannot compare religion and civil law in this way. Law can be compared to religion because law in different ways has its origin in religion. But this argument cannot be turned around. Religion cannot be explained by law. I should like to add that, in my opinion, Durkheim is not the most interesting of the classical sociologists with regard to religious-sociological considerations, because he is mostly occupied with primitive religions, which is the case in his main work, The Elementary Forms of Religious Life (Durkheim 1960: 67 ff.; Durkheim 1995: 45 ff.).

Habermas would not have been able to make the same analysis if he had taken his point of departure in Max Weber’s religious-sociological investigations, Gesammelte Aufsätze zur Religionssoziologie, which in my opinion are much more qualified and differentiated than Durkheim’s sociology of religion (Weber 1988). Weber studied most forms of religions to find out what significance they have had for the integration of different societies. Weber’s conclusion is that the essential significance of religion in society is to give an explanation of how the divine, and in that sense God’s world, can be just when at the same time injustice is dominant in society (Weber 1988a: 242; 571 – 573.). Religion has had the significance to give a solution to this problem of theodicy in all forms of society so that social injustice did not disrupt social integration. The Judaic and Christian religions have here a special status compared to other religions, because the theodicy problem in these traditions is displaced into a demand for a realization of justice in society. This religious claim of social justice is later secularized and integrated in the European tradition of jurisprudence.

  • Weber’s theory of secularization

Weber discusses the question of secularization in The Protestant Ethic and the Spirit of Capitalism (Weber 1988b; Weber 1995). He shows in this analysis that the sacred, the absolute authority of religion, is dissolved in the secularization of European culture and that we therefore have lost the relation to religious authority. This is a much more interesting thesis than Durkheim’s thesis. It is also this thesis of Weber which is the real challenge for Habermas and which he discusses throughout his theory of communicative action. Therefore, we also find later on in Habermas’ analysis of the linguistic transformation of the sacred a discussion where Habermas relates directly to Weber’s theory of secularization, rationalization and differentiation of the occidental culture (Habermas 1981, II: 140; Habermas 1989, II, 92). Here Habermas, in the spirit of Weber, points out that neither occidental science nor art can be the heir of religion. The occidental science is founded upon the criteria of objectivity and art is founded upon the criteria of subjective taste.

According to Habermas, it is only communicative-oriented morals that are able to replace the authority of religion (Habermas 1981, II: 140; Habermas 1989, II, 92). However, this is not valid from Weber’s religious-sociological perspective. According to Weber, the authority of the sacred is dissolved through the secularization of modern society. This is the reason why Weber, in the end of The Protestant Ethic and the Spirit of Capitalism, concludes that we in the occidental culture are dominated by the technical-instrumental rationality because we no longer have a reference to the sacred, which at the end is necessary to uphold morality in any society (Weber 1988b: 202 ff.; Weber 1995: 180 ff..). The paradox is that Habermas follows Weber in this thesis, although he does not follow Weber in his analysis where he, as mentioned, tries to rescue the authority of the sacred in a new secularized form through his reading of Durkheim’s religious-sociological work.

With this background, I will try to sum up my own interpretation. Habermas’ first critique of Weber, which formed the starting point for all of Habermas’ analyses in his theory of communicative action, was that Weber had too narrow an understanding of the rationalization of the occidental culture, because he confounded the potentials of the cultural rationalization with the technical-instrumental rationalization that has taken place historically. I do not only follow Habermas in this critique of Weber; I try to strengthen it because I think that the occidental culture has also been historically rationalized in a communicative direction through historical events such as the Renaissance, the Protestant reformations in their various forms, and through political reformations and revolutions such as the British Glorious Revolution and the French Revolution. Weber does not take these forms of communicative rationalization into regard in his understanding of occidental culture; he is only concerned with the technical-instrumental rationalization. On this point, I think Habermas is right in his critique of Weber. However, I follow Weber in his theory of rationalization of the occidental culture in the sense that I think Weber is right in pointing out that the authority of the sacred is dissolved in this process of rationalization, which could also be called a process of secularization. The question is now what the consequences are for the understanding of the authority and validity of communicative ethics.

The question of the validity of communicative ethics depends on the rational communication in which there can be given good reasons for a specific moral opinion. This is a philosophical problem that Habermas to my mind has treated in a persuasive way. However, the problem is that good reasons are not enough. Habermas sees correctly that in moral questions there is also a problem of authority and he tries to solve this problem through his reading of Durkheim’s religious sociology. But if we follow Weber, the question is whether communicative ethics can acquire an authority in modern society that corresponds to the authority that religions have in pre-modern societies. In this connection, I think Habermas has too widespread an understanding of religion in pre-modern society. Habermas has the understanding that religion in general could give an immediate authority in pre-modern society. But to my mind this is not the case. We have to take into consideration that the authority of religion in pre-modern society was not a free-floating authority. On the contrary, it was mediated through the practice in religious institutions, first of all through cult and worship and secondly through theology in higher forms of religion. Therefore, the authority of religion was not free-floating but bound to institutions in pre-modern society. In the spirit of Durkheim we could even say that it is the institution that gives the authority to religion.

The consequence of this is that communicative action and communicative ethics should be seen in relation to institutions in the same way. From a sociological perspective the decisive point is whether communicative ethics can be institutionalized in modern society, which means the same as whether the institutions of modern society can take such a form that they can mediate communicative ethics in practice.

  • A tragic theory of secularization

The validity of communicative ethics depends upon a philosophical point of view on the tenability of the validity claims. But from a sociological perspective, this is not sufficient. Here the question is whether communicative ethics can be institutionalized in the same way as the authority of the sacred became institutionalized in religion in pre-modern societies. So far as I can see, this is also the line Habermas follows and which he tries to develop in the continuation of his theory of communicative action. But if we do not accept Habermas’ linguistic transformation of the sacred, which I, as previously mentioned, do not, then the consequence for the sociological understanding of communicative ethics is that the claim of its institutionalization is radicalized. Modernity has only a linguistic reference to itself; there are no other references. This internal self-reference can only be upheld if the philosophical validity claims can find their place in practice in the institutions of society.

Habermas presents his thesis about the linguistic transformation of the sacred as a harmonious theory of secularization and therefore it has been an easy target for his critics. However, if we follow Weber in his religious-sociological considerations of modernity, we reach a tragic theory of secularization that poses the real problem that the social ethical challenge consists in securing the institutionalization of the validity claims of communicative ethics in modern society.

The consequence is that Habermas’ theory of die Versprachlichung des Sakralen should be placed in an alternative theoretical framework. In this context, it can be fruitful to look at the philosophers Cornelius Castoriadis and Claude Lefort who have pointed at an alternative theory of secularization where they emphasize the imaginary of the political as an alternative to the imaginary of the sacred as the normative ground for modern democratic society.

  • Castoriadis – The imaginary institution of society

Cornelius Castoriadis developed the concept of the imaginary in his major work The Imaginary Institution of Society (Castoriadis 1975; 1987). Castoriadis defines the concept of the imaginary in this way:

The imaginary of which I am speaking is not an image of. It is the unceasing and essentially undetermined (social-historical and psychical) creation of figures/forms/images, on the basis of which alone there can ever be a question of ‘something’. What we call ‘reality’ and ‘rationality’ is its works. …… What I term elucidations is the labor by means of which individuals attempt to think about what they do and to know what they think. This, too, is a social-historical creation. The Aristotelian division into theoria, praxis and poiesis is derivative and secondary. History is essentially poiesis, not imitative poetry, but creation and ontological genesis in and through individuals’ doing and representing/saying. This doing and this representing/saying are also instituted historically, at a given moment, as thoughtful doing or as thought in the making (Castoriadis 1975: 7–8; Castoriadis 1987: 3 – 4).

According to Castoriadis, society is not only in a permanent historical creation but also in a permanent historical creation of imagination, which forms the ground for a following possibility of creation of objectivity, meaning, etc. that have to be interpreted. Castoriadis speaks of elucidations (élucidation), an enlightenment that must be understood in a hermeneutical sense, which harmonizes well with the fact that he takes his phenomenological approach to the interpretation of history from Heidegger. Thus, the imaginary is a critical hermeneutical interpretation of the social, an interpretation (une élucidation) that takes place ultimately in the political as a project (un projet politique). According to Castoriadis, the political is the ultimate horizon of interpretation for the social and societal.

The important thing is that Castoriadis’ definition of the imaginary can be understood as something historically created, which is to be interpreted through critical hermeneutics. The political forms the general horizon of understanding for hermeneutics. Thus, the political becomes an approach to the interpretation of the social and, secondarily, forms the basis for the interpretation of political institutions in a larger interpretation of social life.

In French, there is a clear linguistic distinction between the political (le politique) and politics (la politique), which is a limited form of action within particular institutions and systems in society (Interview with Marcel Gauchet, Philosophie Magazine N°7). In modern Anglo-American political science, this distinction is, for the most part, lost or maintained as a distinction between political philosophy and empirical political science. The problem with this approach is that the political then loses its meaning as a social fact that is generally determinative for politics, and that political science then loses its relation to the determinative horizon of understanding within the political.

The central point is that Castoriadis’ understanding of the creation of the imaginary in the form of the political can be seen as a competing concept to Weber’s concept of the sacred. In this connection it should be emphasized that according to Castoriadis, it is only in the Antique democratic city-state and later on in the modern democratic state that politics is conceptualized and, therefore, it is in the Antique democratic city-state that the political historically first is constituted. This coincides with the fact that it is only the democratic city-state and later on modern democracies that have freedom as the central focal point. In Castoriadis’ perspective history has mostly been dominated by totalitarian states and societies.

  • Lefort – … from the speech of power to the power of speech

This is also the premise of Claude Lefort’s analysis that most societies in history are of a totalitarian character and that the democratic city-states in antiquity and the democratic states in modern times form an exception or a breach with the dominance of totalitarianism. Lefort develops his ideas in a critique of the totalitarian Eastern European societies and states, and he uses the French Revolution as an important historical example of the transition from a totalitarian society to a free society.

What is important in Lefort’s analysis of the French Revolution is that the prince as the incarnation of the totalitarian state is replaced through the revolution by “un lieu vide”, an empty place (Lefort 1986b: 27; Lefort 1988b: 17 f.). Whereas power in the totalitarian state is substantial as an incarnation in the prince, it can only be representative and symbolic in the democratic state, because this lieu vide cannot be occupied substantially. In this way, a new symbolic order is constituted in which democratic society is instituted as a society without a body (sans corps), in which the organic totality in the form of the prince is brought to an end (Lefort 1986b: 28; Lefort 1988b: 18). Democratic society thus becomes a society that, from a philosophical point of view, is in permanent incertitude, because it can never have any real substantial definition. Any definition can only stand as long as it is not made problematic.

This is especially clarified in Lefort’s analysis in the essay ‘Interpreting Revolution within the French Revolution’, that the empty place, le lieu vide, presents the fundamental change in the imaginary of society from the regime of the powers word to the spoken words power, or with Lefort’s word: “But whereas it was once the speech of power which ruled, it is now the power of speech” (Lefort 1986c: 134; Lefort 1988c: 110).

It is this idea that provides the foundation for the understanding that language is the ground of democracy, insofar as it is the essence of language that any statement can only acquire validity by being made problematic. We can say that Habermas develops the idea in Lefort’s political philosophy in a differentiated way including the whole problem of practice and institutions in a modern democratic society. It is Lefort’s paradoxical political-philosophical thesis on permanent incertitude as the cohesive binding in modern society that makes it clear that it is only the possibility of criticism that can lead to the constitution of a morally founded order in modern society. The moral order in modern society is paradoxical; it cannot have a substantial character relating to the sacred or something similar as the moral order has been understood throughout most of history, including our own time. This moral order can only exist in modern society through the possibility for criticism – thus, the moral order cannot ultimately be defined but must be kept open in the sense that it always is in the process of being defined.

It is this abstract definition that we see play out in modern democratic society. Governments are changed regularly, presidents only hold office for limited periods and laws are reformulated when necessary. From a substantive moral and political point of view, this must all seem irrational and reprehensible. But the rationality consists of the fact that le lieu vide has replaced the substantive and, therefore, it would be irrational and totalitarian from this point of view to refer to a positive substantive morality. Norms are constituted by raising questions as to their validity.

  • The union of ethics and politics

Here we find the mediation between Lefort and Habermas. The central point in Habermas’ work is similar to Lefort’s, namely that language is constituting society and in that sense is its fundamental institution. Society has to be understood through language. This is the way whereby Habermas gives the key to understanding the mediation between ethics and politics. Ethics and politics become the two sides of one and the same matter.

Communicative ethics is a Kantian form of language-ethics in which it is possible in positive terms to determine the criteria for action. But Habermas goes beyond Kant’s ethics in three ways. Firstly, in Kant’s ethics, there is an impassable distinction between, on the one hand, the intelligible world, in which the free will and duty in the categorical imperative is found; and, on the other hand, the phenomenal world, which is dominated by desire, subjective motives and institutions (Habermas 1991: 20 f). In communicative ethics, this distinction is mediated through the common use of language. Secondly, communicative ethics transgresses through the public discussion the inner Kantian monologue about the maxims for action. Thirdly, the Kantian problem of the reasonable justification of ethics is transformed into a problem of universal argumentation in dialogue with the other.

The central thing is that discourse ethics is consolidated in the immediate use of language, and that it is not possible to transcend this usage because language is the fundamental instance which is simultaneously used in an immediate sense.

This leads us to the discussion of politics, which according to Habermas is also based on the immediate linguistic practice in the public sphere. This understanding represents a discourse-theoretical transformation of the Kantian understanding of politics. There is in this understanding of politics a moral dimension insofar as the ethical maxims should provide the basis for the general law. However, whereas Kant’s morals are bound to individual reason, morals in discourse ethics are bound to public deliberation where maxims are determined, which should be the basis for common law. In this way the same problems in Kant’s understanding of politics find their solution as in his understanding of ethics. These are the contradiction between the idealistic and the phenomenological perspective, the transgression of the monologue and finally the problem of the justification of norms. Following this, politics can, according to Habermas, be determined as a public deliberation between the implicated parties about problems which concern them all, and as a determination of the maxims which should be the basis for determination of the common law. There is in this way an inner connection between ethics and politics that makes them into the two sides of one and the same matter. On the one hand, ethics cannot be sustained without politics because ethical deliberation must take place between people in the public sphere, and this is also the determination of politics. On the other hand, politics can only be sustained on the background of the discussion of the maxims that underlie the common law, and this is also the determination of ethics. The public sphere is the common meeting place for ethics and politics because both ethics and politics demand the possibility of public deliberation.

  • Bifurcation – negation – validity claims

The public sphere is constituted through the immediate and free public dialogue between people. It is the use of language that constitutes the public sphere, and there is no public sphere except through the use of language. However, the public sphere can be institutionalized. That means that a possibility can be secured for a public dialogue in advance. This is the precondition for politics and political institutions in modern society insofar as there could not be any politics without a public sphere. This is an abstract ideal type in the Weberian sense, which can be further developed in a philosophical, sociological, political-scientific and historical perspective.

The essential matter is to maintain the fundamental unity between ethics and politics, which in principle cannot be divided. This is the positive Kantian perspective. This is broken up in practice, when we take the Hegelian perspective. Modern society, according to Hegel, is bifurcated (Entzweiung), which has the consequence that moral unity cannot be sustained. However, this principle does not abolish the close connection between ethics and politics but it makes the connection more differentiated and complicated. The public sphere can no longer be sustained in the singular. In practice, it takes the form of a plurality of voices that cannot form a harmonious symphony and where it is not consensus but dissent that dominates. Therefore, the public sphere and critical discussion should be viewed as existing together in modern society.

Habermas himself is aware of this and speaks in several works about das Nein-sagen-Können, i.e. about the possibility to negate, the determinate negation, and try out the validity of a proposition (Habermas 1981, II, 113 ff.; Habermas 1989, II, 73 ff.; Habermas 1992: 394, 515; Habermas 1996: 324; 427). However, the principle of negation does not suspend the Hegelian bifurcation. The consequence is that it is not possible from a sociological and a political-scientific perspective to retain the thought of consensus as the fundamental condition for politics in modern society. However, this is not the essential point. The essential point is that politics has its centre in the dialogues taking place in the many public spheres and that it is possible from a philosophical perspective to test the validity of a statement. This represents a negative reading of Kant and Habermas, which aims at retaining the validity claims that are the fundamental crux of the matter in their political philosophies. This negative reading of Kant’s and Habermas’ political philosophies is not in principle suspended by the reality principle, such as it is represented in the traditions of sociology and political sciences. In these traditions, politics must be regarded by necessity as a positive concrete matter, which is subject to the reality principle insofar as praxis is bound to positive action. Nevertheless, the validity claims are not sustained by the reality principle. They constitute the instance that makes it possible to justify human action in the perspective of the reality principle.

In this way we reach an understanding of politics that contains both a reality principle, in the form of the linguistic praxis under the conditions that are given in modern society, and a philosophical principle, which concerns the questioning of the validity of this praxis. The concept of praxis must by necessity be a positive determination; the concept of validity must by necessity be a negative determination. Therefore, there must by necessity be a contradiction in politics between the positive and the negative determinations, which neither can nor should be dissolved. It is fatal only to regard politics under the perspective of the reality principle, and it is an illusion only to regard politics under the perspective of negation, without any relation to the reality principle. It is necessary all the time to take both perspectives into consideration when we deliberate about politics. We have to have both a Kantian and a Hegelian perspective on politics all the time. This is possible in Habermas’ political philosophy.

  • Civil society

Habermas’ political philosophy is fundamentally a Kantian political philosophy, insofar as his fundamental problem is to discuss the possibility to raise the validity claims for moral and political action, which he imagines can be done through free deliberation between the implicated parties. The great problem arises when the Hegelian perspective is introduced, where Habermas has to explain how such a deliberation can take place in modern society. It could be said that Habermas introduces a communicative transformation of the Hegelian perspective. Habermas points, like Hegel, at the decisive significance of civil society for moral order in modern society. In civil society the citizens can form associations in which they can discuss their common business. Hegel relates civil society to these associations, whereas Habermas has a much broader concept of civil society, which contains many different forms of associations, societies, unions, organizations, and so on. However, at the same time he also restricts the concept of civil society, insofar as he has a tendency to regard state and economic reproduction of society from a pure systemic perspective, as he describes in his theory of communicative action.

It is not appropriate to restrict the concept of civil society in this way, because a large part of the interaction in modern society, in which state and economics have a great influence, is excluded. This concept of civil society excludes the many institutions in a modern welfare society such as schools, health care, childcare, care of the elderly, and so on, which are organized by states and municipalities, and economic institutions that also have a central role in this connection. Therefore, I work with the broadest possible concept of civil society, which not only contains the institutions that are organized immediately by citizens, but also institutions that are mediated through the state and economy insofar as they are related to the immediate life of the citizens. This concept can be claimed when we, in accordance with Habermas, focus on the public sphere as the centre of civil society, in that it is more the form of communication than the function that is essential for the determination of the institutions in civil society.

Civil society is characterized by a plurality of communication in a plurality of public spheres which all relate to the immediate life of the citizens. This interaction includes not only social movements and associations of citizens, but also state-organized institutions and corporations, insofar as they all play their role in the citizens’ communication in the public sphere. Herewith is raised the old Hegelian problem of whether it could be possible to sum up this variety of communications in the many public spheres in a common morality.

Hegel tried to solve the problem by saying that it should be the state that mediates the contradictions in civil society. The state was therefore seen as being prior to civil society. However, this had the consequence that there could be a tendency in Hegel’s concept of the state to disregard the interaction between state and civil society, and to focus instead on the sovereignty of the state in relation to civil society. This is the reason why Hegel’s concept of the state has often been regarded as a totalitarian concept. However, Hegel is right in saying that the state is prior to civil society in the sense that there could not be a civil society without a state. The problem is whether it could be possible to create mediation between civil society and state.

According to Habermas, it is through the political institutions of democratic society that the many discussions in the public spheres of civil society can be mediated to political decisions. Habermas speaks in his chief work concerning legal philosophy, Between Facts and Norms, about ‘sluices’ through which the deliberations in civil society can be mediated and transformed to decisions in the political institutions (Habermas 1992: 431 ff; Habermas 1996: 356). However, Habermas is not able to give a conclusive solution to the Hegelian problem of meditation between civil society and the state. On the one hand, the deliberations in civil society should only seek to influence the political institutions. In that sense, Habermas’ understanding of civil society relates very much to Hegel’s. But there is no necessity in this influence. On the other hand, the political institutions can only be representative through procedures which are acceptable to all parties in society (Habermas 1992: 449 ff.; Habermas 1996: 371 ff.). Finally, it seems that we are confronted with the same bifurcation as was thematized by Hegel. Therefore, it is not possible to say that there should be any necessary positive mediation of moral discourses that can constitute a real substantial social morality in civil society.

  • Testing deliberation as the form of morality in modern society

The question now is what the consequence of this could be. This is the central problem in the discussion of social morality and the solution, as mentioned, cannot be a positive substantial social morality. We here come back to the problem of how we should interpret Kant’s ethics. One way is to interpret it in positive terms as an attempt to constitute positive norms. However, it seems as if this way is not passable. The other possibility is to read Kant’s ethics in negative terms as a critical ethics, where the crux of the matter is the possibility to test the normative validity of the maxims of an action. This is in my opinion the right way to read Kant, and it is the same way that we should consider Habermas’ communicative ethics. This should also be read critically as the possibility to test the validity of the normative maxims for an action. The consequence is that it is decisive that the institutions of civil society and the political institutions take such a form that it is possible in praxis to have a testing deliberation about the normative maxims for an action. In this connection it becomes decisive that there are public spheres in each institution where such critical deliberations can be raised. It is not possible to constitute a positive substantial moral in society. But it should be possible under the aforementioned conditions to test critically the validity of the normative maxims, if there is sufficient freedom in the public spheres of the institutions to raise the validity claims in relation to dominant discourses and preconceived opinions. For this reason ethics in society can only be secured indirectly by the constitution of the conditions which are necessary for the critical test of the validity claims.

On the immediate level, we can here refer to Kant, who ascribes the individual with the capability to ask the reasons for the validity which lie at the root of the determination of social norms. We have to start here, because this is the precondition for posing the question of validity. On the next level there is the possibility that more people can question the validity of the maxims, which form the basis for common action. However, here we are still at a level that does not necessarily have any influence on the public discussions in society. The problem is whether these deliberations can become public and take their place in the political institutions in democratic society.

It is evident that the form that politics and political institutions take should be understood positively at first. The social must always be understood in a positive way. But the characteristic of the political institutions and the political system is that they cannot only be understood in a positive way, because they have to be legitimized. The question of legitimization always concerns the validity of the political action in the institutions. Here, we come back to the problem of a critical reading of Kant. According to Kant, political institutions are legitimate insofar as there is a fair chance to participate. This does not necessarily mean that political interaction in the institutions takes an ethical form. According to Kant, we have to make a distinction between ethics and politics (Kant 1966: RL § 43 – §49, p. 311 – 318). Therefore it is not possible to claim that there should be a necessary positive connection between ethics and politics. The consequence is that ethics cannot be directly secured in a positive way in the political institutions. This does not mean that it should not be possible to sustain ethics in the political institutions; but there is not necessarily an internal positive connection between ethics and politics. The connection between ethics and politics can only be created indirectly through the possibility of questioning political action from an ethical point of view. However, this demands that there is a real possibility of raising such a question. According to Kant, this should be possible, and Habermas is of the same opinion. However, we have to take into regard that this is a political and philosophical claim that cannot necessarily be argued from the perspective of political science and sociology. In reality, politics takes its own institutional forms, where it is not deliberation but power which is in the centre. This is the general opinion in political science and sociology. The discussion is whether legal order can be understood by itself or whether it necessarily implies a form of legitimization. As long as we regard the political institutions from a positive perspective, they can be regarded as a part of the legal order, which can be seen as a self-sustaining institutional arrangement without need of further legitimization. This is Hegel’s and Weber’s perspective. But when conflicts arise, this perspective becomes insufficient. It becomes necessary to question the legitimacy and thereby the validity of the political order. This is Kant’s and Habermas’ perspective. Such a questioning does not only concern the political order but also the ethical validity of political action.

  • The open society and the totalitarian temptation

Herewith we return to the problem of whether a critical ethics can be institutionalized. So far as I can see, this is not possible insofar as this would mean the same as that critical ethics could be regarded as a pre-given substantial ethics, which could be determined in positive terms. However, this does not have the consequence that the critical ethical investigation is excluded from the political institutions. On the contrary, it is part of the understanding of the political institutions in a democratic society that they should be a constituent part of the public sphere. This gives the possibility to formalize the rights to question the political institutions, and this is the case in a modern democratic constitutional state. However, we again have to take into regard that such rights are formal rights and therefore do not necessarily say anything about how they function in practice. In this connection Kant would say that it is not possible to go further from a philosophical point of view. In Habermas’ perspective, things are different because he takes Hegel’s perspective, in which the political culture is essential for the understanding of the political institutions in society.

The conclusion is that there should be a close relationship between ethics and politics in modern society. However, this connection can only be secured indirectly through the formalization of civil rights to take part in political deliberation and through the cultivation of these rights in the public spheres of society. Therefore, a philosophical discussion of the relation between ethics and politics is insufficient; at the same time we have to introduce the empirical perspective of political sciences and sociology. It is not enough to have the correct Kantian idea; we must conclude with Hegel that ideas have to be well-founded in social and institutional practice in society. Habermas has created this mediation between Kant’s and Hegel’s perspectives, which should be interpreted critically.

Here we meet the difficult problem which can contribute to explain why religion anew has become a central topic in the discussion of moral norms in modern society. In modern society, it is not possible to present the positive mediation of norms that could give a justification of positive substantial norms. Therefore one could say that there is a fundamental normative insecurity in modern society, or along Claude Lefort’s understanding, an insecure ground of an empty normative space, that can be upheld only as empty so long a time as there is in praxis a living that does not end discussion about norms and their justification, and concerns all forms of normative problems in democratic society. In praxis, it can be difficult to fulfil such a living discussion in a modern democratic society and therefore there can always be a temptation to revitalize substantial norms grounded in tradition and religion. From a modern perspective, this represents what Lefort would describe as an attempt to reinstall a totalitarian formation of society, which falls behind the French Revolution.


Castoriadis, Cornelius (1975), L’institution imaginaire de la société, Édition du Seul, Paris.

Castoriadis, Cornelius (1987), The Imaginary Institution of Society, Polity Press, Cambridge.

Durkheim, Émile (1995), The elementary forms of religious life, The Free Press, New York.

Durkeim, Émile (1960), Les formes élémentaires de la vie religieuse, Presses Universitaire de France, Paris.

Habermas, Jürgen (1981), Theorie des kommunikativen Handelns, Volume I-II, Suhrkamp Verlag, Frankfurt am Main.

Gauchet, Marcel, Interview: ‘Le politique permet à la société de tenir ensemble’, Propos recueillis par Martin Legros et Nicolas Truong, in: Philosophie Magazine N°7, philomag.com.

Habermas, Jürgen (1984), The Theory of Communicative Action, Volume I, Heinemann, London.

Habermas, Jürgen (1989), The Theory of Communicative Action, Volume II, Polity Press, Cambridge.

Habermas, Jürgen (1992), Faktizität und Geltung – Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats, Suhrkamp Verlag, Frankfurt am Main.

Habermas, Jürgen (1996), Between Facts and Norms – Contribution to a Discourse Theory of Law and Democracy, Polity Press, Cambridge.

Lefort, Claude (1986a), Essais sur le politique (XIXe-XXe siècle), Éditions du Seuil, Paris.

Lefort, Claude (1986b), ‘La question de la démocratie,’ in: Claude Lefort (1986a), Essais sur le politique (XIXe-XXe siècle), Éditions du Seuil, Paris.

Lefort, Claude (1986c), ‘Penser la révolution dans la Révolution française’,” in: Claude Lefort (1986a), Essais sur le politique (XIXe-XXe siècle), Éditions du Seuil, Paris.

Lefort, Claude (1988a), Democracy and Political Theory, Polity Press, Cambridge.

Lefort, Claude (1988b), ‘The Question of Democracy’, in: Claude Lefort (1988a), Democracy and Political Theory, Polity Press, Cambridge.

Lefort, Claude (1988c), ‘Interpreting Revolution within the French Revolution’, in: Claude Lefort (1988a), Democracy and Political Theory, Polity Press, Cambridge.

Weber, Max (1988a), Die Wirtschaftethik der Weltreligionen, in: Weber, Max (1988), Gesammelte Aufsätze zur Religionssoziologie I, 1. Auflage 1920, 9. Auflage, J.C.B. Mohr (Paul Siebeck), Tübingen.

Weber, Max (1988b), Die protestantische Ethik und der Geist des Kapitalismus, in: Weber, Max (1988), Gesammelte Aufsätze zur Religionssoziologie I – III, 1. Auflage 1920, 9. Auflage, J.C.B. Mohr (Paul Siebeck), Tübingen.

Weber, Max (1995), The Protestant Ethic and the Spirit of Capitalism, Routledge, London.

Enhancing Social Responsibility within Global Supply Chains: Is Legal Regulation the Optimal Solution?


The global development described above has led to a situation where companies that are rooted in the social values and ethics of western society, often do not require the same social standards to be followed at the remote end of their operations, namely in the developing world. While pursuing the main goal of business – high profit – they do not respect the values they are based upon domestically.

This situation has become unsustainable. Consumers as well as governments and non-governmental organizations have started to criticize this behavior as they have learnt about it from media. The public has clearly expressed its concerns about breaching the accepted social rules, although in a distant country, where social ethics may be however substantially different. This has created a new pressure on the business community. Suddenly, companies were expected to ensure respect for their social values also within the international supply chain in order to satisfy consumers’ and the society’s expectations. In other words they were asked, even though they had no formal legal responsibility to do so[1], to act as international regulators and in this function replace states that have no available legal means to internationally enforce social and environmental concerns.

First, this paper examines the voluntary (ethical) v. mandatory (legal) basis of corporate social responsibility (CSR). Second, it examines the relationship between CSR, law and business ethics. Third, it tries to answer the question if there is a need for a hard[2] legal regulation of CSR within international supply relationships or if ethical norms, e.g. expressed in the form of self-regulation, may better serve the purpose. And finally, it suggests possible ways for the future development of suitable regulatory methods for enhancing social standards within international supply chains. The questions are approached solely from the perspectives of legal theory and socio-legal analysis.

Voluntary v. mandatory character of CSR

The corporate social responsibility is usually characterized as a set of voluntary measures of companies under which they accept the effects that their behavior has on the environment and society. This approach, however, has been stated to be inaccurate and even deceptive[3]. The discussion whether CSR is of voluntary or mandatory character has divided both the public and the academia[4]. Advocates of voluntary based CSR claim that a descriptive regulation would hinder the wide stakeholder dialogue as a base for this concept and would erase innovation forced by the competition within this area. On the other hand, mandatory based CSR is supported by those claiming that competition and business driven CSR is not sufficient and does not ensure an adequate protection to the relevant social values[5]. They are concerned that the voluntary approach would allow the business community to dictate CSR standards instead of responding to stakeholders’ needs. In order to take a position in the discussion over the binding power of CSR, it is necessary to delimitate what the term covers.

It is often suggested, that CSR includes only behavior beyond the law. If this is the truth then the voluntary v. mandatory discussion is pointless, since every activity would be either a mandatory legal obligation (law) or a voluntary action (CSR). Hence the question would not be whether CSR is voluntary or mandatory, but rather what issues are so crucial that they should be excluded from the CSR concept and regulated by law[6]. This position would make it even more difficult to speak about CSR on the international level, since the scope of CSR would differ in each jurisdiction.

The approach that CSR covers only non-legal activities is certainly not a general standpoint. The summary of the EU Green paper on corporate social responsibility, for example, states: “Being socially responsible means not only fulfilling the applicable legal obligations, but also going beyond compliance …[7]. Another example may be found in companies’ codes of conduct where legal compliance is usually in the first place among the CSR requirements. Based on these and other similar examples, it may be argued that the CSR concept includes not only behavior beyond the law but also the relevant legal obligations, primarily within the area of labor and environmental law. In such case, the CSR activities are of a mixed character, partly voluntary and partly mandatory. This drives me to the conclusion that law and CSR are interconnected[8] and cannot be separated; in other words, the law influences voluntary CSR initiatives and vice versa[9]. CSR is founded in both legal (mandatory) and ethical (voluntary) rules.

But this is not the only argument to claim that the discussion over the voluntary v. mandatory character of CSR is unnecessary and incorrect. The discussion further overlooks the fact that except for direct legal liability, the obligation to socially responsible behavior is often derived from indirect legal obligations and economic and social drivers which lead companies to act against their primary short-term objective, i.e. striving for the highest possible profit[10]. An example of an indirect legal regulation is an obligation of selected type of companies to report on their CSR activities in certain jurisdictions[11] and the threat of listing their name in a list of poor performers[12]. The economic drivers include for example conditioned export credit guarantees[13] by compliance with social and/or environmental standards[14], the development of the socially responsible investment strategy, or the increasing number of institutional investors claiming CSR in target companies. The social drivers are primarily represented by the pressure of consumers, NGOs, media and national governments, who themselves, unable and/or unwilling to interfere, use their power to at least influence corporate behavior.

Given the partly legally based and partly economically and socially driven nature of CSR, companies are in fact forced to adopt environmentally and socially oriented procedures into their operation. Thus, it seems rather illusory to speak about CSR as a merely voluntary concept.


Relation between CSR, law[15] and ethics

As it was argued above, law is an inherent part of CSR. CSR and its regulation emerge from ethical norms of society[16] and a common understanding of morality[17]. As the theory of integrative social contract[18] asserts, consent without coercion is the determining factor to claim that a norm or a value is universal. But is it possible to delimitate the content of a common morality in the contemporary international society? Globalization, on the one hand, enables frequent and intensive international business interaction. On the other hand, the new pluralistic society faces uncertainty regarding the consensus over the fundamental business related ethical norms[19]. The cultural and geographical variety of the globalized society makes it difficult, if not impossible, to agree on the common underlying moral values. The conflicting and constantly changing social values in pluralistic society thus hinder development of an operational definition of the CSR concept[20]. The ethical ambiguity may be overruled by means of positive law[21]. But here a question arises, i.e. if using law to delimit ethics is the right way to go. And is it possible to develop a universally applicable and observed legal regulation of CSR without agreement on the underlying values?

To summarize this part, CSR, law and ethics are tightly interrelated. Even though ethical and legal norms are not the same, these two normative systems are inseparable in the CSR area. Ethics serve as a source of law, especially in “soft” fields as CSR, and as a ground for its legality and normative force[22]. There is no clear distinction between law and ethics within the CSR concept and its regulation. The ethical foundation is called upon constantly and referred to by all kinds of legal regulations. The legal regulation has mostly form of a soft law instrument; there is almost no hard regulation of sustainability concerns within supply chains[23]. The state is not relied upon in case of breach, sanctions are based in the ethical values of society and take usually form of a public damnation. From these facts it can be concluded that CSR regulation behaves as an informal law[24]. But does this situation, which is mixing ethical and legal norms, ensure efficient safeguarding of social concerns?


Effectiveness of legal and ethical normative systems in regulating CSR among supply chains

Although CSR is to a certain extent governed by law and, as argued before, is further enforced by non-legal measures of governments, society and investors, some claim that it is not sufficient. Several NGOs have called for stricter legal regulation and enforcement of CSR activities within international supply chains. But more regulation can be justified only if it actually brings wider observance and protection of social standards.

There are several arguments for leaving the area of CSR to be governed solely by business ethics. The already mentioned promotion of innovation and competition is one of them. However, as practice shows, ethics have failed to ensure that businesses will live up to their moral undertakings, especially in host states[25]. The reason may be sought in the vagueness of ethical rules[26] without possibility to gain an authoritative interpretation and without institutionalized ways of their enforcement. Even though legal rules may be formulated imprecisely, there is always higher certainty regarding their content and possibility to eventually ask a court or another competent body to give an authoritative interpretation. Given the failure of ethical rules, the morality argument underlying the CSR concept that the benefits of globalization are not fairly distributed among society, in other words that the western society benefits to the prejudice of the developing countries[27], now becomes a ground for legal regulation of the responsibility of businesses for the cross-border effects of their environmental and social performance. Further, the vagueness of ethical rules may cause companies to be reluctant in going beyond legal requirements[28], because they may fear the litigious risks of their CSR statements[29].

Another argument for enacting CSR obligations is the claim that positive law has transformed into the ethical standard of the contemporary society[30]. It is difficult to support this view in general, but easier to agree that this claim may be valid in relation to the business community. It is the nature of business existence to strive for profit in the framework given by the legal order. Any action going beyond legal requirements is usually costly and as such must be justified to the shareholders of a company. In case that such an action does not bring profit, e.g. as a good name or competitive advantage, it is not natural for a business to perform it. The positive law thus serves as the ethical ceiling of business operations. In such a situation, institutionalization of the obligation by law supplements the motivational force of the underlying moral norm[31] and serves as an explanation to the shareholders.

The third argument states that the legal form of obligation supports acceptance of its underlying value. Although this may be true, it does not ensure wider observance of the rule. On the opposite, as it was noted by some academics[32], highly regulated areas often experience high levels of infringement[33]. In this relation the threat of creative compliance in connection with CSR regulation should be mentioned[34]. Companies search ways of circumventing the objective of a certain law, without technically breaching it. It is thus important to foster compliance in line with the spirit of the laws instead of the mere letter of law.

The failure of ethical norms in effective regulation of CSR, the positive law being the ceiling of business ethics rather than the floor, and the wider acceptance of moral value when enacted may, even though with the mentioned reservations, speak for legal regulation of the corporate responsibility.

To the contrary, the danger of over-regulation supports the thought of minimal governmental regulatory intervention expressed in libertarian legal theory[35]. The tendency to regulate all aspects of companies’ behavior goes hand in hand with the transformation of positive law into the “ethical ceiling” of business[36]. The endeavor to govern all business activities by specific rules raises the possibility of creative compliance. Possibility of circumvention may be decreased by enacting principle-based regulation[37]. But rules based on principles do not constitute an optimal solution either, especially when being criticized for legal uncertainty and for offering too broad a space for interpretation.

A shift in the attention from the underlying moral objective to the process of how to achieve it may be another argument against broad legislation within CSR[38]. An example can be found in reporting obligations. Companies seem to concentrate more on the procedure of reporting than on the subject of it.

On the one hand, the practice has shown that a merely ethical normative system is not able to secure business compliance with social and ethical standards, especially in foreign countries. On the other hand, broad legal regulation does not seem to solve the situation either. Therefore, there is a need to develop new regulatory forms and their combinations that will establish a balance between the ethical and the legal foundation of CSR.


Outline for future use and development of suitable regulation

Experiencing the failure of ethical rules proved that a legal regulation is to a certain level necessary. But threats connected with overregulation and preclusion of innovation by strict limits given to the business behavior lead to a development of new regulatory techniques in the area of CSR. Regulation is understood in a broader sense than as a prescriptive hard law. The following definition used by Zerk seems appropriate: “regulation…encompasses any form of social control or influence, regardless of its source…”[39]. Regulatory techniques vary from hard legal regulation of “command and control” nature on one side of the spectrum, through soft-law and economic and legislative incentives, such as guidelines of international organizations, model regulations or tax reliefs, in the middle, to diverse means of self-regulation, in the form of codes of conduct and contract regulation, on the other side of the spectrum. Further, under the broad understanding of regulation the notion of law has undergone a substantial shift. It is difficult to classify regulatory types that are mutually overlapping without having distinctive borders. A soft-law may have effects of a hard-law if enforced by a court or if compliance is demanded by a state-made legal regulation[40]. Also, state-made legal regulation can become looser and principle-based, so its hard legal effects are limited. Thus the borders of law are unclear and subject to continuous change. Although all regulatory forms are having partly useful effects in international matters, the problem resides in uncertainty about their mutual relation, lack of international obligatory force, and thus difficulties with their cross-border enforcement.

Academic literature has touched upon this issue and offered some solutions. The often suggested model is a wider use of so-called meta-regulation. The objective of meta-regulation in the CSR area is forming corporate conscience; to motivate companies to do what they ought to do under ethical rules[41]. Meta-regulation is therefore not a direct regulatory means; it rather motivates than prescribes responsible corporate behavior. The motivation usually takes the form of a financial or market-based incentive. The US Foreign Corrupt Practice Act may serve as an example; assuring lower fines when a corruption practice is found in a company that has a code of conduct and anti-corruption procedures in place. But also this approach is criticized for possible misunderstanding between regulators and regulated persons about the objective of such a norm, and for its concentration on procedures rather than the substance of social concerns.

However, we may find positives and negatives in each regulatory form. What seems more important now is the ability of a norm to actually influence corporate behavior. The observance ratio is usually higher, if the regulated subjects’ values identify with the underlying moral imperative of the norm. The identification is then higher if the regulated subjects take part in the norm’s creation. This leads us to the possible application of the theory of discourse ethics as developed by Jürgen Habermas to the rule-making process[42]. The drawbacks of the application of discourse ethics in the area of CSR lie in the power imbalance between the stakeholders and the lack of procedural rules for conducting a discourse among them[43].

Given that there is currently no global understanding of substantive content of the CSR concept, there is a plurality in regulatory techniques on global, local as well as corporate levels, and given that externally imposed obligations do not support wider adoption of the social responsible behavior among businesses, a solution may be sought in developing hard law procedural norms on conducting discourse among stakeholders which would allow adopting specified legal or extra-legal norms on global (e.g. global private initiatives), local (e.g. national laws) and corporate level (e.g. codes of conduct or business contracts). This idea needs to be examined and tested by future research.



From the previous discussion it is obvious that the question is not whether the regulation of CSR so far is binding or not, but rather what type of regulation can best influence the actual behavior of companies within their supply chains.

Neither ethical rules nor hard legal rules seem to be satisfactory when being the only regulatory force. Thus, new types of regulation and their combination must be discovered and tested.

A solution to the problem of low compliance and problems with enforcement of CSR rules in cross-border relationships may be found by developing regulation while using the process described in the theory of discourse ethics. However, given frequent power imbalances, strict procedural rules would be needed to ensure contemplated effects. Further, the differences in perception of social ethics based on a geographic location make it necessary to conduct discourse separately on the global, local and corporate levels, in order to ensure that the differences will be reflected in the final substantive rules.

[1] Buhmann, Corporate Governance: The International Journal of Effective Board Performance 2006, p. 190.

[2] For the purpose of this paper, the definition of hard law introduced by Abbott and Snidal is adopted. Under this definition “hard” law “refers to legally binding obligations that are precise (or can be made precise through adjudication or the issuance of detailed regulations) and that delegate authority for interpreting and implementing the law.”Abbott og Snidal, International Organization 2000, p. 421.. For further discussion on definition of hard and soft law and their relation see Shaffer og Pollack, Minnesota Law Review 2010, p. 706-799..

[3]McBarnet, Doreen, “Corporate Social Responsibility Beyond Law, Through Law, for Law” in McBarnet; Voiculescu ogCampbell, The new corporate accountability: Corporate social responsibility and the law, p. 585., Ward, Legal Issues in Corporate Citizenship, , Sobczak, Business Ethics Quarterly 2006, p. 168.

[4] Zerk, Multinationals and corporate social responsibility: limitations and opportunities in international law, p. 32 et seq.

[5] The advocates of mandatory approach to CSR are led by NGOs and other human rights and environmental groups and trade unions. For example in UK these subjects have joined in the Corporate Responsibility (CORE) Coalition, fighting for changes in law and judicial practice to enhance higher responsibility of UK business for their activities abroad. For further information about CORE see http://corporate-responsibility.org/. Some of their proposals on changes in law may be found in Watson, 18 June 2007,. The governmental interference into regulation of CSR within supply chains was supported also by UN Special Representative for Business and Human Rights, John Ruggie, see Ruggie,.

[6] Monaghan, Accountability Quarterly 2003, p. 1.

[7] Green Paper – Promoting a European framework for Corporate Social Responsibility, COM(2001) 366 – Summary, available at http://europa.eu/legislation_summaries/employment_and_social_policy/employment_rights_and_work_organisation/n26039_en.htm; highlighting added

[8] Zerk, Multinationals and corporate social responsibility: limitations and opportunities in international law, p. 35.

[9] Ward, Legal Issues in Corporate Citizenship, p. 5.

[10] McBarnet, Doreen, “Corporate Social Responsibility Beyond Law, Through Law, for Law”, p. 4, in McBarnet; Voiculescu ogCampbell, The new corporate accountability: Corporate social responsibility and the law, p. 585.; It must be stated that acting in socially responsible way leads arguably to long-term and more sustainable profits.

[11] E.g. France and Denmark.

[12] E.G. UK Environmental Agency.

[13] Financial guarantee provided by a government or a financial institution enabling companies to export goods and services in situations where payment for them may be delayed or subject to risk.

[14] Applicable e.g. in the Netherlands and Sweden.

[15] Wherever the term “law” or “legal” is used in this section, it refers to hard law or hard legal regulation. When other types of legal regulation are used, the terms are specified: “soft law”, “self-regulation” etc.

[16] Ruud og Ruud, Proceedings of the Business, Society & Government Consortium of the Midwest Business Administration Association 2010, p. 52.

[17] Frederiksen, J, Bus, Ethics 2010, p. 369.

[18] Integrative Social Contracts Theory is a theory of business ethics developed by Thomas Donaldson and Thomas Dunfee. It is based on the theory of social contract of political philosophers including Thomas Hobbes, John Locke, Jean-Jacques Rousseau and John Rawls. The Integrative Social Contracts Theory provides a framework under which business decisions are made with respect to their effects on the relevant communities and taking into account the ethical norms and universal moral standards.

[19] Gilbert og Rasche, Business Ethics Quarterly 2007, p. 190.Human Rights Council, Clarifying the Concepts of “Sphere of influence” and “Complicity”.

[20] Ruud og Ruud, Proceedings of the Business, Society & Government Consortium of the Midwest Business Administration Association 2010, p. 52.

[21] Fisher, J, Bus, Ethics 2000, p. 115.

[22] McCarty, J, Bus, Ethics 1988, p. 886.

[23] California Transparency in Supply Chains Act coming into effect on January 1, 2012 is one of the few. http://info.sen.ca.gov/pub/09-10/bill/sen/sb_0651-0700/sb_657_bill_20100930_chaptered.html

[24] Buhmann, Corporate Governance: The International Journal of Effective Board Performance 2006, p. 190.. ”Informal law is a set of normative ideas and patterns of behavior and action that are not based on sharp distinction between law and morals, or between law and fact. It is not formulated by a central, state or national authority. …Its sanctions are of a moral or practical character.”

[25] Constantly growing number of companies named in relation to insufficient protection of their employees and environment is a proof of that. For some examples see e.g. http://www.laborrights.org/creating-a-sweatfree-world/sweatshops/resources/12211.

[26] Michael, Corporate Social Responsibility Initiative Working Parer No. 19. Cambridge MA: John F. Kennedy School of Government, Harvard University. 2006, p. 24.

[27] Zerk, Multinationals and corporate social responsibility: limitations and opportunities in international law, p. 46, 47.

[28] Monaghan, Accountability Quarterly 2003, p. 8.

[29] Example of litigation based on CSR statements is US case Nike v. Kasky.

[30] Fisher, J, Bus, Ethics 2000, p. 115-127.. Di Lorenzo, J, Bus, Ethics 2007, p. 275-299..

[31] Apel, American Journal of Economics & Sociology 2007, p. 54.

[32] Stuntz, Harvard Law Review 2003, p. 1701-1747.. “One might suppose that where law is largely absent, behavior is pretty bad. Yet it turns out to be nearly the other way around. The two areas where law is arguably the largest presence in ordinary life – driving cars and paying taxes – are probably the two areas where there is the largest amount of self-conscious cheating.”

[33] This concern shall be related and considered in the area of CSR reporting.

[34] McBarnet, After Enron, Corporate Governance, Creative compliance and the uses of Corporate Social Responsibility, 2005.

[35] Represented e.g. by Friedrich Hayek.

[36] Fisher, Bus, Horiz, 1990, p. 30.

[37]McBarnet, Doreen, “Corporate Social Responsibility Beyond Law, Through Law, for Law” in McBarnet; Voiculescu ogCampbell, The new corporate accountability: Corporate social responsibility and the law, p. 585.

[38] Michael, Corporate Social Responsibility Initiative Working Parer No. 19. Cambridge MA: John F. Kennedy School of Government, Harvard University. 2006, p. 12.

[39] Zerk, Multinationals and corporate social responsibility: limitations and opportunities in international law, p. 42.

[40] An example may be found in the section 1 of the Danish Marketing Practices Act. “Section 1. Traders subject to this Act shall exercise good marketing practice with reference to consumers, other traders and public interests.” If non-complying, companies risk the possibility to be fined.

[41] Parker, Christine, “Meta-Regulation: Legal Accountability for Corporate Social Responsibility?”, in McBarnet; Voiculescu ogCampbell, The new corporate accountability: Corporate social responsibility and the law, p. 585..

[42] Gilbert og Rasche, Business Ethics Quarterly 2007, p. 187-216.; Apel, American Journal of Economics & Sociology 2007, p. 49-70.; Unerman og Bennett, Accounting, Organizations & Society 2004, p. 685-707.

[43] Gilbert og Rasche, Business Ethics Quarterly 2007, p. 202.

Francesco Giacomantonio, Introduzione al pensiero politico di Habermas. Il dialogo della ragione dilagante (Milano-Udine: Mimesis, 2010)

Our age of crisis has taken many more forms than just the widespread rejection of Enlightenment ideals. Possibly, its most visible contemporary manifestations are: (a) the devastation of the planet’s “ecological equilibrium” (25); (b) the consistent anthropological impoverishment and individualistic atomisation of human societies (e.g. “social conflicts” read as individual “psychic problems” [26]; “anomie” [31]; “confusion between… [individual] success and… [collective] understanding” [32]); and (c) the undiminished international instability (e.g. religion’s “self-destructive forms” [63]; “Western military interventions in various areas of the planet” [77] ).

Patiently and laboriously, Habermas has addressed in his complex oeuvre all of the aforementioned forms of crisis of our age. It is Giacomantonio’s task to survey Habermas’ accounts in this slender book (99 pages).

Specifically, Giacomantonio praises the erudite, articulate and abstract “theoretical wealth” of leading German sociologist and philosopher Jürgen Habermas (b. 1929) as a rare exception to current scholarly and scientific trends (78). Avoiding academic partisanships and specialist parochialisms, Habermas is said to have scrutinised and engaged with an “ample spectrum of stances” in the attempt to provide a reasoned, synthetic as well as analytical understanding of the enduring age of crisis (77). Swimming against the current, Habermas believes the Enlightenment project—modernity itself—to have to be brought to completion, not discarded.

Habermas’ first major intellectual accomplishments are claimed to be his 1960s and 1970s studies in the economic and administrative structures of late-modern Western industrial societies. Then, Habermas focused primarily upon the legitimisation of such structures via political procedures of mass participation, as well as upon the growing class fluidity, which Giacomantonio describes as the “dissolution” and “fragmentation” of traditional class consciousness and discourses (25).

According to Habermas, the post-war decades had seen capitalist societies benefiting from large-scale entrepreneurial pursuits, under the cooperative scrutiny and sophisticated direction of the State, which allowed these pursuits to serve vastly accepted inclusive social aims (e.g. “urban and regional planning”, “research and development”, “unemployment benefits”, “public welfare”; 25). These aims facilitated the legitimisation of the pursuits themselves, as well as the State’s own authority. Then, this virtuous circularity ended. For Habermas, the 1970s mark the beginning of the age of crisis.

The 1970s “late” or “mature” capitalism (23) continued to display massive State intervention in the economy. Yet, an increasing outgrowth of private interests started to escape from State control, leading to “systemic” failures (24) and to a generalised loss of faith in the State. This reduction of legitimacy was indicated by declining political participation, which was due too to the opacity of class consciousness in now tertiary-dominated economies. A variety of rescue plans were implemented by national governments, often via ever-increasing State intervention and techno-scientific legitimisation thereof. Regularly, these plans proved of little success, at least as the previous inclusive social aims were concerned.

Rather, the recurring reliance upon science and technology as grounds for political action induced considerable “de-politicisation” (28) of collective life and institutional decision-making. Within this novel frame of reference, whereby political issues were turned into “technical problems”(28), the public opinion was morphed into a passive spectator or sheer recipient of the diktats of a self-enclosed—and often self-serving—“expert” bureaucracy. In any case, the vastly accepted inclusive social aims of the post-war decades started to wane, becoming a more and more remote memory of better, foregone times.

It is Habermas’ opinion that the highly educated “expert” bureaucrats of recent decades have failed consistently to perceive the unavoidable connection between factual scientific investigation and value-driven technical application. To counter this phenomenon, Habermas has recommended the establishment of a more open critical exchange amongst experts and between experts and the public at large. In this perspective, communication should serve as an antidote to the former’s intellectual insularity and to the latter’s political disaffection.

Concerned with the de-politicisation of socio-political phenomena and populations of democratic countries, Habermas began to explore the socio-political relevance of “communication and linguistic dimensions” that were to become the hallmark of his later intellectual production (31). Indeed, the 1980s witnessed a vast output of studies by Habermas on the deeper structures of anthropological impoverishment and atomisation in modern nations. In them, Habermas came to conceive of “society” as comprising: (a) the “system” of professional, formal networks of “strategic behaviour”; and (b) the personal, informal “life-world” of existentially meaningful behaviour (“Lebenswelt”; 31). On the one hand, human activity was being described by Habermas as the “success” or “influence” of the competitive individual; whilst on the other stood the truly life-defining, cooperative linguistic (“communicative”) praxes seeking mutual “understanding” and engendering shared “identities” (32).

Initiating the age of crisis, the former dimension had been invading the latter by using communication instrumentally, i.e. the shared linguistic means for genuine self-expression and social cohesion were turned into sheer means of self-maximisation. To respond to this invasion, Habermas has recommended the overcoming of national barriers and the creation of a “cosmopolitan… deliberative democracy” centred upon ethical and normative issues and aims (35). Roughly speaking, more conversation about justice, the common good and the like–as already anticipated in his reflections on science and technology of the 1970s–would mean more democracy; more democracy would mean more legitimacy; more legitimacy more effective laws; and more effective laws more social and socially acceptable results. All of this, however, should be taking place on a global scale.

Habermas’ reflections on democracy became even more relevant in the 1990s. Then, in the face of an even faster-paced post-Cold-War economic and cultural globalisation, it was the very cradle of modern democracy that was to experience its deepest crisis, i.e. the nation State as such. Apart from intensifying the problems that Habermas had already tackled in the 1970s and 1980s, fin-de-siècle globalisation further deprived States of the crucial means of control over the “economic dimension” (40). In particular, free capital trade robbed the State of those vital “fiscal” resources that were needed for its administrative functions (44). Weaker States became even less credible to the populations, whose interests they were still expected to serve. The legitimacy of their power and even their own raison d’être became shakier. In the process, the vastly accepted inclusive social aims of the post-war decadeswere even openly rejected by leading parties and statesmen, who engaged actively in the persistent reduction of the public sphere. Deprived of the State’s support, larger and larger sectors of the population found themselves poorer, marginalised, and more vulnerable.

In the final decade of the 20th century, Habermas stressed further his commitment to a “cosmopolitan” solution of the ongoing crisis (43). In his view, a global economy needs a global deliberative democracy. This is not the same thing as to say that the world needs a world State. Rather, the world needs actual world politics and actual world policies. International organisations are already in place (e.g. the “United Nations”, the “World Trade Organisation”, the “International Monetary Fund” [46]). What is missing is the democratic appropriation of those institutions as positive means for global governance.

Interestingly, the “European Union” has been described by Habermas as an example of existing trans-national coordination and a possible force for progress, which he understands as the generation of a new political community reflecting truly democratic values and substantial ethico-political aims, such as solidarity and social inclusion (45). As an opposite model of global governance, Habermas has often highlighted the “hegemonic unilateralism” of the United States of America, which has accompanied throughout an economic globalisation capable of producing a “more unjust… more insecure” world and a threat to our “survival” as a species (48).

In particular, Habermas has stressed of late the centrality of the rule of law for the proper functioning of any complex social arrangement. As opposed to the brutal force exemplified by military intervention, a binding legal framework springing from democratic deliberation would constitute in his view a powerful means to a noble, desirable end: “to include the other without assimilating him” (50).

As further explained and substantiated in Habermas’ works of the 2000s, democracy should be thought of as much more than just a set of public institutions and formal procedures, for it is also an array of informal social praxes and individual forms of conduct. Within his deliberative and cosmopolitan model of democratic rule, Habermas has ended up combining the “liberty of the ancients” with the “liberty of the moderns” (51). In other words, both republican active participation and liberal individual-rights-protecting public guarantees are embraced as important components of actual democracy. Societies need both enduring compromises amongst rights-endowed self-interested individuals and the formation and expression of collective will via societal “self-clarification” (37).

Habermas resolves in an analogous manner the tension between liberals and communitarians on the much-debated issues of multiculturalism (51-6) and religious tolerance (61-8). Both universal, trans-cultural principles and cultural rights are said to be important for the socially inclusive survival of democratic States in a more and more inter-connected international reality. Disagreements and problems are bound to arise; still, what matters most is to have enough institutional and conceptual resources as to be able to tackle such disagreements and problems without falling into either coercion or social disintegration, which destroy genuine social cohesion and solidarity (54-6).

This, albeit sketchy, is the overview of Habermas’ intellectual production that Francesco Giacomantonio offers in his new book. It is indeed a clear and effective account of Habermas’ nearly unique oeuvre, as the author of the Introduction to the Political Thought of Habermas cites Touraine and Castoriadis as the only other equally daring grand theorists of recent times (80). The book comprises six chapters, an introduction, some final considerations and an appendix by another author. The presentation waves between a thematic subdivision and a chronological organisation of the material. Either way, the book addresses all the essential aspects of Habermas’ vast production. By this feat alone, it deserves much praise.

If any criticism is to be passed on it, then it must be pointed out that the book could be even more slender: the appendix by Angelo Chielli is redundant and unnecessary (83-90); whilst the 6th chapter, which deals with Habermas’ relevance to contemporary academic pursuits (69-75), could have been reduced to, and included with, the author’s final considerations (77-81). Also, the book would benefit from an analytical index of cited topics and authors.