Tag Archives: Habermas

Minority Claims in Multicultural Societies: A comparative study of case law

To Hevrin Khalaf (1984 – 2019)

and to Nasrin Sotoudeh

 

 

SECTION I

Deliberative democracy: a bad choice for multiculturalism?

«The judge is the interpreter of justice»

(T. Aquinas, Theological Sum)

 

«If men were angels,

no government would be necessary»

(J. Madison, The Federalist, Paper N. 51)

 

«Imagine a world in which there are no significant political

and wealth variations among bounded membership units.

In such a world, there is no motivation for change and migration»

(A. Shachar, Birthright)

 

  1. Introduction

What is the best way for democracy to deal with multicultural clashes? Against the unilateral “assimilation solution” supported by many European leaders, some scholars have recently argued that the Habermasian public sphere is particularly receptive to multicultural issues, proving a platform where parties can concur to a peaceful agreement. By drawing parallels from Perekh (2005)’s analysis of the debate between Liberals and Muslim groups on the “Satanic verses” in UK, and the tendency of Confucian ethics and other cultures to foster social harmony, I argue that several problems undermine the neutrality of the Habermasian concept of deliberation in relation to multiculturalism. And the same problems can affect models of deliberative democracy that are primarily based on an ideal of verbal communication.

          In the first lines of this papagraph, I briefly explain Awad’s adaptation of Habermas’ model of deliberative democracy to the multicultural question. Then, I will try to reject the habermansian model of deliberative democracy, as it is presented by Awad.

 

  1. What is the best way for democracy to deal with multicultural clashes?

The multicultural question – that is, how different groups can coexist in the same society – is a challenge not only for national identity but also for current political institutions and political deliberation[i]. The problem is that people of the same pluralistic society disagree not only on questions of morality, but also about social justice[ii]. For instance, different communities within the same society may hold diverse views on the limits of freedom of speech, education, public holidays, what social behaviors can be tolerated, and what must be forbidden. Given the increasing flow of people in this globalized world, it is reasonable to assume that our societies will become more and more multicultural. And the multicultural question, namely “How can we live together?” will be one of the most pressing and the most important one.

          In recent years, multiculturalism has been a central topic of several philosophical debates. Kymlicka[iii] – for instance – famously defended the claim that a liberal society needs to accommodate the most important concerns of its cultural groups by giving them special rights. Whereas, Berry[iv] rebutted that any multicultural policy that allows minority groups to associate in pursuit of their distinctive ends poses a threat to the social justice of the whole society.

          If the academic world hosts more or less friendly views on multiculturalism, things seem to be different in the political realm. Several heads of Western democracies have recently expressed their strong disapproval for multiculturalism. In 2010, we all know that Angela Merkel claimed that Germany’s attempts to create a multicultural society have “utterly failed”[v]. Addressing the young members of her Christian Democratic Union party, Merkel said the idea of people from different cultural backgrounds living happily side by side is not working. Needless to say, Merkel’s speech acted as a fuel on this fiery topic in the country with the third-highest number of migrants. One year later, the former French president, Nicolas Sarkozy, joined Merkel. In a TV debate, Sarkozy declared that: “We [French people] have been too concerned about the identity of the person who was arriving and not enough about the identity of the country that was receiving him.” According to Sarkozy, multiculturalism in France is a failure too. “Of course – Sarkozy said – we must all respect differences, but we do not want a society where communities coexist side by side”[vi]. Even more recently, David Cameron made a more worrisome statement. In 2014, David Cameron claimed: “Adhering to British values is not an option or a choice. It is a duty for all those who live in these islands, so we will stand up for our values, we will in the end defeat this extremism and we will secure our way of life for generations to come”[vii]. The British Prime Minister’s recent statement is not his first attack at multiculturalism. On the occasion of the the Munich Security Conference four years ago, Cameron declared that “multiculturalism has failed in Europe” and emphasized the need to straighten the respective national identities[viii].

          Despite their provocative tone, the recent European leaders’ statements cast doubts on the effectiveness of democratic, social and political systems to deal with multiculturalism, and induce us to ask ourselves what a good democracy should be like. Is a democracy based on “assimilation” – as recently suggested by some European leaders – really the only way to solve the multicultural question, or are there other better options?

          The relationship between multiculturalism and democracy raises fundamental and pressing questions for our times. In particular, it is unclear whether our democratic institutions are suitable to balance the interest of majority and those of minority groups. When the majority shares the same culture, the democratic political system tends to favor the interests of the dominant culture, augmenting the disenfranchisement of the minority groups. If that is the case, how can democratic societies cope with the tension between the socio-political structure of one society and the aspiration of social recognition of minority groups?

            Some scholars took the challenge and proposed an alternative way to deal with multiculturalism in a democracy. Awad[ix] (in 2011) and other scholars – such as Correira[x] (in 2008) – have recently argued that Habermas’ conception of deliberative democracy is particularly receptive to the demands of multiculturalism. According to these authors, the habermasian idea of public sphere – a noninstitutional dimension through which different ethnic groups can deliberate and develop mutual understanding – offers a better way for democracy to deal with the multicultural question[xi].

          In the present section, I argue that some drawbacks prevent Habermas’ deliberative democracy from solving the multicultural problem, and the same difficulties can undermine the soundness of similar deliberative models that are characterized by a strong verbal communicative component. I argue that a democratic model that is primarily based on a verbal communicative ideal is not neutral in respect to all cultural groups, since it disregards different linguistic abilities or cultural predispositions of some minority groups that influence their participation into public debates.

 

  1. Habermas’ deliberative democracy ideal and multiculturalism

Deliberative democracy is perhaps the most popular position in democratic theory at the moment, and the debate hosts a large variety of deliberative theories. Deliberative democracy stretches from any form of communication to more sophisticated consensual forms of rational discourses, such as Habermas’ ideal of public sphere or Cohen[xii]’ Rawlsian deliberative debate among reasonable, equal and free citizens.

          Generally, deliberative arguments in defense of democracy emphasize the importance of a reasonable and fair debate which encourages democratic political decisions. According to deliberativists, what is unique about democracy is the fact that political decisions in democracy derive from communicative and transparent decision making processes within its people.

          Deliberativists usually argue for the intrinsic importance of public deliberation and its power to lead to governments with strong public participation. In this sense, deliberation is generally seen not only as the source of the intrinsic value of democracy, but also the source of its legitimacy and political authority. According to Cohen[xiii] for instance, deliberative democracy is an ideal political justification. The latest Rawls[xiv] thinks that in order to have a stable and right political system, the public debates should not only produce right conclusions, but the citizens must also “carry on” in accordance with them. Similarly, Cohen argues that the public debate is how citizens arrive at collective decisions, and therefore the fundamental and most valuable feature of democracy.

3.1. A Habermas’ deliberative democracy

In Three Normative Models of Democracy, Habermas presents his model of deliberative democracy in opposition to the liberal and republican form of democracy[xv]. Habermas discards both republican model of democracy and liberal one. According to Habermas, the liberal model fails to account for the complexity and variability of the individual nature. Moreover, Liberals fail to see that since communities have collective interests, the democratic bargaining process is likely to favor the most powerful and numerous groups, penalizing the minority groups.

          According to Habermas, the republican model of democracy is slightly better-off. Democracy, for Republicans, is a process of self-understanding by which citizens recognized their shared identity of demos. The Republican metaphor for democracy is therefore the dialogue, not the free market. Thus, Republicans acknowledge that the sense of belonging to groups or community “constitutes” the individual. Moreover, contrary to Liberals – who conceive citizens’ interactions as mere trades – Republicans emphasize on the strong relationship between democratic ethos and the communicative interaction among citizens. Despite its advantages over the liberal view, Habermas argues that the republican conception of democracy ends up being too idealistic. By attributing the primary ethical goal of self-understanding to public dialogue, Republicans presuppose an ideal of common-identity that people should achieve through debate[xvi]. Moreover, Republicans fail to understand that political debate is not exclusively ethics oriented. Many collective debates in a pluralistic society seem to rather point to balance parties’ different interests[xvii].

          In order to overcome the problems of both the liberal and republican forms of democracy, Habermas proposes a model of public deliberation that is both a procedural and participative. The habermansian model of deliberative democracy shares the republican concept of citizenship and the metaphor of debate for democracy. For Habermas, the public sphere is “a network for communicating information and points of view”[xviii]. The public sphere is the non-institutional platform where civil deliberation takes place. Nevertheless, contrary to the republican democratic model, deliberative dialogue lacks a predetermined ethical goal. Thus, if on the one hand the public sphere allows citizens to develop their common-identity through dialogue, on the other, norms and common-will emerge from participative process of the public. In this sense – similarly to the liberal conception – political decisions in a deliberative democracy depend on a determinate procedure. But in the public sphere, the norms are the outcome of deliberation and are not established a priori. Thus, the communicative structure of the public sphere specifies “the fair terms of participation in which everyone has equal standing”[xix] (as said Bohman, in 1996).

          Habermas’ thick discursive model of deliberation is characterized by several aspects:

          – It is a collective process. All citizens participate to the public discourse.

          – Persuasion is the main way through which citizens develop their arguments and influence    each other.

          – It is a respectful communication process. The public sphere gives equal hearing to all sides.

          – It is a dialogue among equals. The public sphere provides equal opportunities of     participating into the deliberation process.

          – Critical self-examination: all parties are willing to regularly scrutinize their beliefs,    conventions, practices.

3.2. The public sphere as multicultural arena

According to Awad (2011), the conceptualization of deliberative democracy developed by the latest Habermas offers an ideological apparatus to the critical multiculturalism problem[xx]. That is, the relation between the interest of the majority and the interests of minority groups, and the tension between the socio-political structure of one society and the identity of its minority groups )[xxi]. When the majority shares the same culture, religion, or “social prospective”[xxii], the democratic political system tends to favor the interests of the dominant culture, augmenting the disenfranchisement of the minority groups. Let’s call this problem: “the rule of the majority’s culture” problem. In this respect, argues Awad, the inclusion requirement of the public sphere meets the demands of minority groups that usually lack visibility, because it can provide not only the consideration of groups’ interests but also facilitate their active participation through the involvement into the public sphere and the critical self-examination by all parties. The public sphere in turns promotes groups’ reciprocal understanding and paves the way to a new social ethos and a common civic goal[xxiii] .

          Furthermore, the active participation into the public sphere can also guarantee to minority groups sufficient visibility to shape the public agenda[xxiv]. As Habermas explains: “From the perspective of democratic theory, the public sphere must, in addition, amplify the pressure of problems, which is not only detect and identify problems but also convincingly and influentially thematize them, furnish them with possible solutions, and dramatize them in such a way that they are taken up and dealt with by parliamentary complexes”[xxv]. Thus, thanks to their visibility into the public sphere, minority groups could influence the voters and consequently the parliamentary discussion. This is possible, because – according to Habermas – “Naturally, political influence supported by public opinion is converted into political power – into a potential for rendering binding decisions – only when it affects the beliefs and decisions of authorized members of the political system and determines the behavior of voters, legislators, officials, and so forth”[xxvi]. Thus, thanks to the deliberative process into the public sphere, the minority groups can influence the political parties and therefore defend their demands in view of an adjustment of the institutional apparatus.

          In conclusion, in opposition to the assimilation solution, Awad thinks that Habermans’ conception of public sphere is able to solve the two aspects of the critical multiculturalism problem. In response to “the rule of majority’s culture”, it provides the foundation for an inclusive communication and reciprocal understanding among cultures and social groups. And a fruitful public sphere in turns fosters the development of a stable and cohesive socio-political democratic structure, in which groups have equal opportunities to pursuit their interests and recognize themselves with the main basic social institutions.

 

  1. A critique of habermas’ deliberative democracy from a multicultural prospective

Habermasian deliberative model has the merit of identifying deliberation as useful decisional procedure to deal with multiculturalism. Nevertheless, its conception of public sphere makes it an idealistic model that hardly applies to complex reality of our pluralistic societies. Beside the parties’ intention to engage in the debate, Awad presupposes that groups are equally able to actively contribute to the public sphere. In this regard, the presupposition that the parties share the same language is crucial for deliberation, since this latter is an essential requirement for any form of communication. However, the condition of a common language might be a significant problem in multicultural society. In a multicultural society, indeed, different communities do not share the same language, or at least do not have the same proficiency in whatever is the dominant or official language. This can make it hard for minority groups to communicate their dissatisfaction –supposing that they are willing to engage in deliberative process. Moreover, beside a common language, efficient communication requires sound communication skills. As Habermas puts it: “Publicity is the common perspective from which citizens mutually convince one another of what is just and unjust by the force of the better argument”[xxvii]. But, in the case of a multicultural society, it is unclear whether minority groups have these skills. Moreover, what is “persuasive” or “reasonable” for the majority’s culture might not be so for the others.

          Parekh’s analysis (2005)[xxviii] of the debate after the publication of Rushdie’s “Satanic verses” supports my objections. Parekh thinks that the communicative difficulty of the Muslim to articulate their reasons was one of the main causes of the debate and violent incidences. “Muslims” – says Parekh – “attempted to articulate their reasons in a liberal language but found it extremely difficult to do so both because they had few bicultural literate intellectuals, and because no such conceptual translation will ever be accurate”[xxix].

          Thirdly, an affective public multicultural discourse can be undermined by lack of mutual understanding of the other cultures. According to Parekh, after the publication of the “Satanic verses”, most British writers understood the Muslims questioning of why free speech should include untrue and deeply offensive remarks about religious beliefs as “an opposition to free speech, whereas Muslims failed to understand the grounds of the liberal emphasis on free speech and the depth of British commitment to it”[xxx].

          Given the potential communication problems and cultural barriers among groups, it is hard to see how Habermas’ public sphere could provide a solution to “the rule of majority’s culture”. Consequently, this also undermines the possibility for the habermansian model to solve the second part of the multicultural problem. That is, the tension between the socio-political structure of one society and the identity of the minority groups within the same society. That is because in Awad’s view the development of a cohesive sociopolitical structure can derived only from a fruitful public sphere.

          A fruitful public communication can be also damaged by the cultural differences among groups within the same society. As we have seen above, Habermas – as well as Cohen (1996) – argues that the only force that matter in public deliberation is the one that is exercised by arguments and persuasion. In this sense, the model seems to presuppose not only the equal technical skills of the parties (such as language proficiency and communication skills), but also their equal cultural predisposition to public debate, defending their points and persuading others in similar way.

          However, not all members of a pluralistic society can be equally predisposed to public dialogue of this sort. People from cultures prioritizing social harmony and the cultivation of peaceful social relations may feel uneasy with public argumentation. For example, let us consider Confucian ethics, whose influence is not only ingrained in Chinese culture, but also in other East Asian societies, such as Japan, Korea. In Confucian ethics, human flourishing is constituted by harmonious social relations – whether in the family, the society, the world, or with nature. This is one of the main reasons why Confucianism traditionally emphasizes that a good life is first and foremost characterized by rich and diverse social relations. Harmony, at minimum, means peaceful order (or the absence of violence). Conflict is of course unavoidable, but it should be dealt with non-violence approach and with the aim of establishing a peaceful order. For this reason, Confucian traditions tended to prioritize social harmony over public verbal confrontations, using also non-verbal ways of communication. Nowadays, this attitude could potentially affect the predisposition of the members of societies with Confucian traditions to participate into a deliberative process which is predominantly based on communication. In this sense, such a model could be biased towards groups who are culturally and historically more predisposed towards public argumentation.

          Social harmony is not a unique commitment of Confucian cultures. Together with communal peace, social harmony is a central aspect in Ubuntu, the main ethical tradition in sub-Saharan Africa. For the Ubuntus, a disagreement among the members of the clan can be overcome only by reaching at a “harmonious agreement” in which everybody agrees on the decision taken, and equally participates in the discussion. “BuenVivir (“Good Living”), an idea rooted in the worldview of the Quechua peoples of the Andes that has gained popularity throughout Latin America, emphasizes living in harmony with other people and nature”[xxxi]. For the Yumbo – Quechua speaking Indians of the Orient of Ecuador – social harmony is one of the most important social values, compared to discord and argument that are negatively valued.

          Thus, if the value that some cultures traditionally attribute to social harmony conflicts with the principal practices of the public sphere, such as public verbal confrontation, then these Confucian and non-Confucian cultures would be potentially disadvantaged if multicultural issues were handled exclusively by a public communication platform. Indeed, a conception of public communication strongly dependent on the ideal of argumentation and persuasion could significantly penalize minority groups that are culturally and historically less predisposed to actively engage into public argumentation.

          For this very reason, contrary to Awad, Habermas’ idea of deliberative democracy seems to be unsuitable to answer the multicultural issue. The inclusion requirement of Habermas’ public sphere could give to minority groups more visibility, but it could hardly provide the necessary conditions to assure their active participation into the public sphere.

 

SECTION II

Separate but … equal opportunities? A sedentarist mistake

«Religion is the hiccup of an oppressed creature,

the feeling of a heartless world,

the spirit of a spiritless condition.

It is the opium of peoples»

(K. Marx, Criticism of the Hegelian philosophy of public law)

 

  1. Introduction

In recent theories about justice in immigration, two egalitarian theses become increasingly popular. The first is that restrictions on immigration should be compensated by development aid. In a world less unequal than ours, we often hear, the rich countries’ restrictions on immigration would cause less harm to the poor, and would thus be less, if at all, objectionable[xxxii]. The second thesis is that such material compensations would further equality of opportunity at a global level. But insofar as development aid mitigates the effects of birth on people’s level of opportunity, compensation for immigration restrictions will further equality of opportunity at a global level.

            Let us call “separate but equal opportunities” the conjunction of the two theses above. It implies that global equality of opportunity can be achieved in a world where opportunities are separate (through the nation-states’ policies of restricting entry to their territory), but equal (equality being realized through redistributive schemes or otherwise).

          The aim of this paper is to explain why “separate but equal opportunities” is an incoherent view. The explanation has two parts. The first section is built on a conceptual analysis of the notion of “opportunity”. Its aim is to show that equality of opportunity is not compatible with territorial segregation. Those who think it is, are mistakenly using the word “opportunity” and confuse an opportunity with its value. Based on this conceptual analysis, I argue that opportunities cannot be equalized by borders which produce at best equal discrimination. In the second section of the paper, I try to explain why this confusion occurs. Part of the explanation is of course nationalism, but another part is what I call “sedentarism”. I argue that research on migration –whether empirical or normative – is frequently biased by a sedentarist presupposition. I define sedentarism as a researcher’s preference for sedentary conduct over mobility. The sedentary conduct is conceived of as an unproblematic and “normal” feature of “human nature”, while mobility is understood as an exceptional conduct in need to be explained. Sedentarism explains many mistakes, including the assumption that segregation can engender equality of opportunity.

 

  1. Why ‘separate but equal opportunities’ is self-contradictory

“Separate but equal opportunities” is the view that equality of opportunity can be realised in a world of separate nation-states[xxxiii] provided that opportunities are equal between territories. As such, the aim of promoting equality of opportunity is rarely defended at a global level, and many global justice theorists argue in favour of a decent, rather than equal, set of opportunities[xxxiv]. But the language of opportunities is widely used, thus confirming that equality of opportunity is still a popular approach in contemporary political theory[xxxv]. However, regardless the popularity of the ideal in theory or practice, one may ask a more general question: can equality of opportunity be achieved in a world of states controlling the entry on their land. In other words, is “separate but equal opportunities” a coherent goal?

          One should take this question seriously and not succumb to the rhetorical effect of the slogan “separate but equal”. Indeed, that slogan reminds the doctrine “separate but equal” upheld by the United States Supreme Court in the 1896 decision, Plessy vs. Ferguson. At that time, the Court reaffirmed Louisiana’s racial law giving “equal but separate accommodations for the white and coloured races” and convicted Homer Plessy who had boarded a “whites only” railroad car. The Court had justified its decision by maintaining that separation alone neither abridges one’s privileges, immunities or property, nor denies the equal protection of the law. As it is well known, that ruling was quashed by the 1954 Supreme Court decision in Brown vs. Board of Education. The Court did not contest the existence of material equality, but argued that separate educational facilities are “inherently unequal”. It maintained that in the field of public education the doctrine of “separate but equal” has no place because separate educational facilities have detrimental effect on children, who interpret them as a sign of inferiority.

          The argument in this paper is drawn neither on the legal analysis of the doctrine “separate but equal”, nor on its rhetorical effect. Such a strategy would be inefficient since nowadays, not everyone is troubled by the resemblance between that doctrine and some popular views about “global justice”. For instance, Eric Cavallero explicitly maintained that “in effect, I am endorsing the legitimacy of a ‘separate but equal’ doctrine for national citizenship groups. This seems acceptable and even accords with the logic of the Court in Brown v. Board of Education. There, the Court found that in public education ‘separate educational facilities are inherently unequal’ (emphasis added) because of the intangible expressive force of segregation, which was plainly intended to denote the inferiority of ‘the negro race’. It seems unlikely that separate, but equal arrangements would carry that expressive force in the international context”[xxxvi].

            As a matter of fact, Cavallero is inaccurate in claiming that segregation was then “plainly intended to denote inferiority”. In 1896, the Court explicitly argued, as Cavallero does nowadays, that “laws permitting, and even requiring, separation do not necessarily imply the inferiority of either race to the other” and claimed that it is the “fallacy of the plaintiff’s argument” to associate separation with inferiority[xxxvii]. But however Cavallero understood the Court’s arguments, the historical and legal analysis of the doctrine of “separate but equal” does not fall within the scope of this article.

          The aim here is rather to check whether “separate but equal opportunities” is a coherent goal. To do so, let us imagine a segregation scheme that is immune to the above criticisms. Its basis is not racial, but territorial: people born in separate territories are bound to live in them for the rest of their life, but each territory provides accommodations and facilities of a strictly equal value. Such equality might have been achieved by development aid or by other means. Most importantly, equality has strengthen the feeling of membership so that, unlike African-American children in the past, nobody in this imaginary world interprets segregation as a sign of inferiority and some even take pride in belonging to separate nations. Would segregation be a policy of equal opportunity, then?

          One might answer in the affirmative: if available opportunities in each territory are of equal value and are unanimously regarded as such (i.e. no one interprets separation as a sign of inferiority), the policy must be one of equal opportunities. But to answer this way is to understand the question “can segregation be a policy of equal opportunity?” as simply inquiring “are the available opportunities in each territory really equal and perceived as such?” In what follows, I argue that the meaning of “opportunity” explains why these two questions are different. Two features of the concept of opportunity press us to set apart the above questions. The first is related to the distinction between opportunities and their value; the second is that opportunities are conceptually linked to actions.

 

2.1. What does ‘opportunity’ refer to…

Despite considerable research on equal opportunities, too little has been done to clarify the meaning of an opportunity tout court[xxxviii]. My aim here is not to provide a definition of the word “opportunity” but to clarify two of its aspects useful to my argument.

          The first is the distinction between opportunities and their value. The idea that segregation between equally rich territories respects equality of opportunity seems to conflate opportunities and their value. But a closer look at the way we use the word “opportunity” reveals that having an opportunity is in no way equivalent to possessing the wealth associated with it. On the contrary, that one has an opportunity implies that one lacks something that one values but can get it by doing something[xxxix]. In other words, an opportunity firstly refers to an uncertain gain. As Hansson put it, “if I am certain to receive payment to my bank account for this month’s work it would seem unnatural to say that I have an opportunity to receive my salary”[xl]. If Hansson’s linguistic intuition is right, it seems that opportunities cannot be redistributed by merely redistributing wealth through development aid. Money redistribution is neither a necessary, nor a sufficient, condition for the distribution of opportunities. Why is this so?

          Giving someone the money or the value of an opportunity is compatible with depriving that person of an opportunity. For instance, if I were to apply for a job for which I am perfectly qualified, but you refused to consider applications from people with disabilities, you would deprive me of a job opportunity; this would still be the case if you asked me to stay home while offering to pay me the entire amount of money I would have earned if recruited. In this sense, redistributing the value of opportunities is not a sufficient condition for distributing opportunities. But receiving money is not a necessary condition for having an opportunity, either. If your hiring procedure was irreproachable, but I had changed my mind and did not come to the interview, I had had a genuine opportunity even if I derived no money from it. Having an opportunity is having only a chance to get something valuable. Since money can buy many valuable things, including the means facilitating the access opportunities, it often stands in as a measure of the level of opportunity. But opportunities are not synonymous with money, and development aid is compatible with depriving people of opportunities.

          The distinction between opportunities and their value thus suggests that the proper distribuendum of an equal opportunity policy is neither money, nor the value of opportunities, but opportunities themselves. Though, the distribution of opportunities, unlike that of garden plots, cannot be achieved by boundaries.

          To see why boundaries cannot equalize opportunities, let us imagine a policy dividing professions: half of them being set aside for women and half for men, so that no woman is entitled to exercise a profession reserved for men, and vice versa. The distribution is equal in all respects: remuneration levels in each category are the same (i.e., the best job for men is as highly-paid as the best job for women and this holds for any wage level), distribution profiles of jobs within each group are the same (i.e., there are as many men as women occupying well-paid jobs, a proportion strictly observed for lower-paid jobs), and the symbolic value of jobs is equivalent (jobs for men have as much social dignity as jobs for women). Shall we call this professional segregation an equal opportunity policy? One would more appropriately call it a policy of equal discrimination: men and women are equally discriminated when they are given separate, though equal, opportunities.

          Why are equal opportunity and equal discrimination different policies? To answer this question, let us move on to the second feature of the concept of opportunity: opportunities are conceptually linked to actions. As a matter of fact, English language dictionaries define an opportunity as “a favourable juncture of circumstances” and, more precisely, as “an occasion or situation which makes it possible to do something that you want to do or have to do, or the possibility of doing something”[xli]. Therefore, opportunities are circumstances. They are favourable circumstances, in the sense they fit our ends, what we want to do or have to do. But the way they favour us is not the same as the way digestion and nutriments’ absorption favour good health. They are favourable, provided that we choose to act and achieve our ends. The fact that opportunities are linked to actions is recorded by the word’s grammar: one cannot have an opportunity period; “opportunity” is an unsaturated expression, it is always an opportunity to do something. By its link to action, an opportunity becomes a favourable juncture, not of circumstances but of circumstances and choices to act. The conceptual link between opportunities and actions is recognized by luck-egalitarian theories, which provide equality of opportunity with a philosophical justification and whose core-distinction is that between choice and circumstances.

 

2.2. … and why does it matter ?

So far, I have argued that there are two features of the concept of “opportunity”: one presses us to distinguish between opportunities and their values; the other highlights the connexion between opportunities and individual actions. In what follows, I will show three consequences of that conceptual analysis.

          Firstly, the above conceptual analysis explains how equal opportunity differs from equal discrimination. Equal discrimination is a scheme which seeks to distribute opportunities of equal value to separated groups. But if opportunities are linked to actions and to the individuals’ ends, one cannot decide that something is an opportunity, or that two opportunities are of equal value, without considering the agent’s ends. To see why, suppose a man’s objective is to work as a lawyer, but according to the professional segregation scheme described above, only women can be lawyers. To claim that giving him the possibility to work as an accountant (an equally worthy and well-paid job) is to give him an (equal) opportunity is to assume that he was looking for whatever job secures him a specific level of welfare. Of course, the man could have defined his professional goal in a broader-grained way and, in this case, equal discrimination and equal opportunity policies have similar effects on him. But, if he had not, he would be astonished to learn that he has been given, and not deprived of, a job opportunity. The fact that what is an opportunity depends on the men’s and women’s own objectives explains why equal discrimination and equal opportunity should not be confounded. While discrimination implies removing opportunities to some people (on the grounds of their actual or supposed belonging to particular group), a policy of equal opportunity implies granting opportunities to all, regardless of their specific membership. Therefore, while discrimination can be equalized by erecting boundaries between groups and between opportunities, equal opportunity requires opening everyone’s access to all the opportunities.

          Secondly, the conceptual analysis sheds a new light on the argument from cultural differences. Cultural differences are sometimes viewed as challenging equality of opportunity. While some scholars argue that equality of opportunity “needs to be interpreted in a culturally sensitive manner”[xlii], others believe that global equality of opportunity either would undermine[xliii] or is incompatible with the existing cultural differences[xliv]. David Miller derived his conclusion about the impossibility of global equality of opportunity from premises about the value of opportunity: as different cultures assign different values to the same opportunity, he argued, there can be no single metric to compare people’s access to opportunities across cultures. By contrast, a national society which shares, according to him, “a common set of cultural understandings”, allows for such comparisons since it makes some opportunities “naturally substitutable”. He explained that: “we have cultural understandings that tell us that football pitches and tennis courts are naturally substitutable as falling under the general rubric of sporting facilities, whereas schools and churches are just different kinds of things, such that you cannot compensate people for not having access to one by giving them access to the other”[xlv].

          Miller’s example may look convincing. To many academics, including the author of the present article, sporting facilities are all naturally substitutable. But if Serena Williams is given the football pitch and David Beckham the tennis court, they will both complain of being equally deprived of, rather than equally given, a sporting opportunity. The reason why they complain and why some of us do not is not that Williams’ and Beckham’s “cultural understandings” are different from ours. They are not. The reason is that we all have different preferences and ends even if we live in a supposedly homogeneous society or, indeed, in a harmonious family. More than “cultural understandings”, we have “individual understandings” which tell us that some sporting facilities do constitute opportunities (while others do not), and that some of them are of equal value (while others are not). Therefore, opportunities cannot be “naturally substitutable”. And they cannot be naturally non-substitutable, either: for instance, if our end is literacy tuition, we may regard schools and churches as substitutable opportunities. As a matter of fact, opportunities are substitutable precisely inasmuch as individual ends are. A Department of Equal Opportunity deciding, without considering the individuals’ ends, that some opportunities are “naturally substitutable” is not only illiberal but unaware about the meaning of opportunity[xlvi].

          The argument from cultural differences is usually stated in terms of opportunities’ values, and not of opportunities themselves. Its strategy consists firstly in imagining cultures (which oddly enough, are often constructed to coincide with the administratively bounded nation-states) as sources of very different, if not incommensurable, values. Then, the second step is to assume that attaching different values to opportunities undermines equality of opportunity. But this assumption is false. If it was true, it would follow, at a domestic level, that the more a society is liberal and recognizes the fact of value pluralism, the less it is committed to equality of opportunity. A simple look to the current nation-states shows that rather the opposite is true: the states where equality of opportunity is better respected are also the more liberal, the more respectful of value pluralism. The reason why equality of opportunity is still on the agenda in liberal societies is that equality of opportunity is a matter of, firstly, opening access to opportunities to everyone, and then, equalizing the means to achieve it. But such a rather trivial understanding of what equality of opportunity requires in first place looks unacceptable to some tenants of the argument from cultural differences as it implies unlimited rights of move[xlvii].

          To conclude, the conceptual analysis presented in this article sheds a new light on the argument from cultural differences. Taking into account the link between opportunities and individual ends makes cultural differences inoffensive for equal opportunity. Let us imagine again that after denying Serena Williams access to tennis courts, we discover that her understanding of what is a sporting opportunity has been influenced by her culture. For her, playing tennis, but not football, is an opportunity because she belongs to a small community worshiping face-to-face confrontations between two individuals as an occasion to meet the Otherness. What difference does that discovery make? If opportunities are always, as I argue, sensitive to the individuals’ ends, discovering that some individuals’ ends are shaped by some factors (be they cultural, social or otherwise) doesn’t change the moral qualification of our action: we either granted, or refused to grant, access to a sporting opportunity. When differences between individual ends are taken seriously, the argument from cultural differences (as well as from social, familial, psychological differences) becomes inoffensive. Not only equality of opportunity is not undermined, but it doesn’t “need to be interpreted in a culturally sensitive manner” either. The reason is that genuine equality of opportunity is already sensitive to cultural differences but it is in a derivative sense: because and insofar cultures (as other factors) do shape the individuals’ ends.

          Finally, the third consequence of the conceptual analysis, linking opportunities to individuals’ actions and ends is that it helps us to understand why “separate but equal opportunities” results in an incoherent political agenda. The common feature of the two segregation scenarios described above (territorial segregation and professional segregation) is that they limit the available opportunities according to individuals’ circumstances of birth (birthplace in the first case, sex in the second). What is so wrong with dividing opportunities according to the circumstances of birth? Perhaps the fact that no matter how favourable the opportunities a person encounters throughout her life, and no matter how much effort she is willing to make, she can do nothing to go beyond the bounds set at birth. Yet, this is just the opposite of equality of opportunity.

          In a sense, any philosophy of opportunity is built on a Promethean ideal. Its core idea is that individuals should (be able to) act and transform circumstances according to their objectives. This idea is widely shared by people of different political preferences. On the right, conservatives emphasise everyone’s responsibility for one’s own wealth, thus suggesting that everyone acted, or should have acted, to convert opportunities into wealth. On the left, luck egalitarians stress that unfavourable and unchosen past circumstances impose unfair disadvantages, which make people less able to manipulate present circumstances as they wish. Hopefully, no one denies that circumstances of one’s own birth are not chosen and that people cannot be held responsible for them. So, if opportunities are about transforming circumstances, how can one claim that a policy which separates people at birth, and prevent them to go beyond their birth circumstances, is a policy inspired by a philosophy of opportunity? As I have argued, the doctrine of “separate but equal opportunities” is at best a doctrine of equal discrimination based on birth rather than a doctrine of opportunity.

          The conceptual analysis, by highlighting the connexion between opportunities and individual actions, helps to better understand the difference between discrimination and equality of opportunity. To see how, let us rank policies depending on the degree to which they allow individuals to transform circumstances according to their objectives (see Fig. 1 below). At the left end of the spectrum, nothing can be done to go beyond birth circumstances: it is the extreme form of a discriminatory policy. As we advance on this continuum, discrimination weakens as the imposed limits become less insurmountable (like a policy conditioning access to jobs based on marital status, which is discriminatory but whose limits are not as insurmountable as birth circumstances are[xlviii]), up to a point where policies can be properly considered to offer some form of equal opportunity. At this point, of open access, the competition is open to all. However, when «all individuals have at least the same legal rights of access to all advantaged social positions»[xlix], as Rawls put it, the equality of opportunity is formal or minimal. Beyond this point, there are policies which increasingly facilitate access to opportunities already open to all. They provide supplementary means, such as education, health care, welfare benefits, etc. But the meaning of redistributive schemes in an equality of opportunity approach is to enable people to act according to their ends, and not simply to achieve material equality.

0————————————X——————————————————————————-»

(0= Discrimination; X = Open Access; the rest of the line is Fair equality of opportunity).

Figure 1 Opportunity policies

The above figure illustrates why the “separate but equal opportunities” scheme is incoherent. If equality of opportunity minimally requires opening all positions to all individuals, then any form of discrimination is incompatible with it. The worst form of discrimination, territorial segregation decided at birth is situated at the extreme left of the line. Global redistribution of resources, including development aid, if inspired by an ideal of fair equality of opportunity, would be situated somewhere at the right of the line. However, one may not be both on the right and on the left side of this line. Those who believe that a compensation for the worst form of discrimination promotes equality of opportunity misunderstand what equality of opportunity minimally requires. But why does this misunderstanding occur?

 

  1. Sedentarist mistakes

In the previous section, I argued that believing that territorial segregation is compatible with equality of opportunity is to misunderstand what equality of opportunity minimally requires. Two biases explain why this misunderstanding occurs. The most obvious one is the nationalist bias: the idea that equality of opportunity can be realized only within a nation-state. As nationalism is currently under attack in most social sciences[l], it will not be discussed here. This section is rather dedicated to clarifying a second bias that I call “sedentarism”[li]. Simply stated, sedentarism is the idea that it is always preferable to stay than to move. While all opportunities cannot be located in a single place, sedentarism makes us believe that equality of opportunity can be realized without moving from a place to another. When it is combined with nationalism, the sedentarism bias makes us to under-evaluate restrictions to cross-border mobility.

 

3.1. What is sedentarism…

Sedentarism is the idea that staying is always better than, or preferable to, moving. While both staying and moving incur costs and benefits depending on the context, the sedentarist bias makes us to focus on the costs of moving and on the benefits of staying. Staying is given more value than moving; the longer one stays in a single place, possibly her birthplace, the more she is associated to moral values (rootedness, commitment etc.). In a social choice, sedentarism will favour preferences of people who stay over those who move.

          As sedentarism is reinforced by nationalism, it is easier to see sedentarism bias at work, when international movement is considered. It covertly dominates research methodologies in social sciences, while being overtly defended in political theory.

          In the social sciences, sedentarism remains dominant despite the “mobility turn” launched a decade ago. Sedentary conduct is often supposed to be the “normal” condition, while migration always needs an explanation. Migrants are classified, sedentary people aren’t. Migrants’ motivation is analysed, their conduct is described, not that of sedentary people. Even when sedentary conduct is overtly suboptimal (as when for instance, an employment area doesn’t drain people from a neighbouring unemployment area), few studies try to explain it. Most research focuses on 3% of global population who migrate – a rate estimated as high – and few studies enquire about the sedentary conduct of the remaining population, especially when half of humanity is living in extreme poverty. In sum, there is great asymmetry between the number of studies trying to find out the causes and motivations of the people’s movement and the number of studies trying to explain sedentary, though suboptimal, conduct[lii].

            Moreover, most research evaluates the costs imposed by those who move to those who stay, while the opposite is rare. In migration studies, questions such as how migration of the skilled affects people who remain behind, or as how migrants’ arrival alters the job market, wages, redistributive policies, opinion and culture at destination – are recurrent. Too few studies estimate the costs imposed by those who stay on those who (would) move. Questions such as how passports affect people’s wealth, education, careers and family life, how borders decrease global GDP – are understudied[liii].

            While in the social sciences, sedentarism is an implicit bias, in political theory, it is overtly advocated. Thus, mobility and migration are depicted as an “abnormal” conduct, uncharacteristic for “human beings” and explicable mainly by catastrophes. Thus according to Walzer, “human beings move about a great deal but not because they love to move. They are most of them inclined to stay where they are, unless their life is very difficult there.”[liv]

          Since mobility is rarely viewed as a genuine choice, preferences that are satisfied though mobility appear eccentric and lacking a real purpose. Cavallero illustrates this misunderstanding: “Persecution, oppression and lack of economic opportunity are surely the principal migration incentives. An individual might seek to migrate in order to get as far away from his family as possible, to master a foreign language or to live in a country where people take siestas. For simplicity, I will assume that such preferences can be expected not to favour one country over another”[lv].

          Ideal world is often depicted as sedentary and unchanging. As Shachar put it: “Imagine a world in which there are no significant political and wealth variations among bounded membership units. In such a world, nothing is to be gained by tampering with the existing membership structures. In this imaginary and fully stable world system, there is no motivation for change and migration”[lvi].

 

3.2. … and what kind of mistakes it leads to?

The sedentarist bias may lead to morally arbitrary conclusions often through logically invalid reasoning. I will give two examples of each.

          First of all, invalid arguments. A widespread logical fallacy is hasty generalization. As sedentarism may come as a difficulty of figuring out movement as a choice, many arguments go from the observation that presently, most people’s movement at the international level is forced by persecution and poverty, to the conclusion that movement is generally coerced by persecution and poverty[lvii]. Such reasoning is implicit by those who claim that in a less unequal world, motivation for change and movement would disappear. Hasty generalisation leads also to reduce claims about mobility to claims about redistribution. As Thomas Pogge put it, “if this [persuading rich countries to admit more needy foreigners] is a worthy cause, it is so in virtue of the protection it affords to persons who are very badly off”[lviii]. Such positions neglect that needy people have rights and needs other than those related to their economic condition.

          A second common form of the sedentarist mistake is a deontic version of the fallacy of the inverse of the following form: since poverty causes migration and reducing poverty is a worthy goal, then reducing migration must be a worthy goal[lix]. For instance, Eric Cavallero argued that if poverty causes migration and if rich countries should fund development of poor ones, then “funding should aim at a near-term target of immigration-pressure equilibrium”[lx]. In each case, premises about inequality and forced migration are converted in a conclusion about migration. Acknowledging that mobility can be a choice (even for the poor) would have avoided the sedentarist mistake.

          Let us turn to normative conclusions derived from sedentarist premises. The first example is given by the common view according to which in a world less unequal than ours, restrictions on immigration would be less, if at all, objectionable. This conclusion neglect that people, including the poorest ones, have interests other than those derived from their economic condition and are harmed by the restrictions on freedom of movement. Such restrictions prevent people who live in separate nation-states from moving and meeting each other and are a serious violation of individual rights. Since mobility conditions a wide range, if not all, of our actions, restrictions on mobility result in limitations on freedom that go far beyond economic aspects. Preventing people –just because they are born in separate territories – from visiting or receiving friends in their homes, marrying people of their choice or developing new relationships is a serious violation of human rights. Generally, we would describe any political regime which deprives people, even a minority, of such civil liberties as highly oppressive. However, when it comes to the international level, we tend to have more clemency with such rights’ violations and forget that freedom of association and the rights to fund a family and to lead a meaningful life are still recognized as universal human rights. A regime of segregated territories, insofar as it imposes restrictions on movement, harms both outsiders and insiders[lxi]. And contrary to the commonplace, closed borders do not harm only outsiders from poor countries: poor and rich countries’ insiders and outsiders have their fundamental freedoms curtailed.

          The second example of questionable normative conclusions is the abandonment of liberal neutrality. Let us assume that the sedentarist view is correct: the ideal world is one where “there is no motivation for change and migration” and where only a very small minority of people would move “for idiosyncratic reasons”[lxii]. Could a liberal approve of the fact that the remaining majority imposes its preferences for immobility to everyone? A liberal mind committed to the ideals of neutrality and persuaded that it should refrain from exercising political power without people’s consent, would prevent a majority, however large, from forcefully imposing its sedentary preferences on others who are willing to move. It would do on the basis of neutrality ideal and would simply emphasise that this majority violates those individuals’ rights. And wealth alone cannot change their harm into freedom, just as golden bars do not make cages a liberty symbol. To avoid the possibility of such harm, a liberal would disconnect separate nation-states from the power to control movement and entry into the land.

          To sum up, the idea that redistributing wealth or the mere value of opportunities makes restrictions on immigration unproblematic is based on sedentarist assumptions according to which mobility does not characterise human nature. Sedentarism is dominant in social sciences and it leads, in political theory, both to logical fallacies and questionably normative conclusions.

 

SECTION III

Equal respect, cultural differences and minorities

«L’Etat est une chose,

et la société civile une autre».

(E. Berth)

 

«All religions are beautiful,

and it is indifferent to approach

the Christian Eucharist or go on a pilgrimage to Mecca»

(H. Hesse)

 

  1. Introduction

Is there a difference between a request for a menu which is compatible with halal slaughtering precepts and an apparently similar request for a vegetarian one? Is the former a cultural claim while the other is not? What can a comparison of this kind tell us about minority rights? Let’s assume, for argument’s sake, that the appropriate response to both requests is the same, either positive or negative. Would that mean that those cases are to be considered as instances of the same issue? The answers to these questions are not obvious.

          Non-mainstream dietary preferences or habits might be based on different reasons, and they could be treated differently, depending on the reasons provided. It might be the case, for example, that those who follow halal prescriptions do so for religious reasons, while vegetarians refuse to eat the meat of non-human animals for several different reasons – ethical or religious beliefs, considerations about human health.

          In this section I will provide a tentative interpretation of what answering similar questions can tell us about how we should conceptualize minorities. I see this definitional task as a particularly important one since some criteria of definition enabling us to specify who should be legitimately considered a member of a specific minority are in some cases necessary to implement the possible targeted policies. It is indeed through the application of such a concept to the real political and social world that differential rights or treatments can be accorded. So my analysis is about the notion of minority in the first place.

          The problem seems to me that examples like those concerning requests of dietary pluralism should be intuitively interpreted as cases where a social standard is put into question and the idea that such an issue should be addressed in different ways, according to whom the claimants are, might seem unsound at glance. Thus, I will try to check whether it is possible to give a single account of what can or cannot justify such minoritarian requests.

          I will try to explain some difficulties in the task of defining minorities the solution to which seems to require an appeal to the liberal value of equal respect rather than a mere request for recognition of differences[lxiii]. The solution to such difficulties will show that the idea of equal respect might work as a justificatory device not only for borderline cases but for standard cases as well.

          I shall also argue that the notion of equal respect can provide the justificatory basis for mutual accommodation between majority, longstanding minorities, but also those who, while not being a member of any officially recognized minority, might still strive for minoritarian issues.

 

  1. The definition of minorities

As a matter of principle contemporary democracies presuppose the presence of internal pluralism and dissent, and thus presuppose the fact that majority rule creates minorities in a loose sense most of the time, except in the rare cases of unanimity on some decisions. Put in such extremely simplistic terms, the existence of minorities is not a problem to be solved but a permanent feature of democratic life. Obviously enough, however, a problem arises when some groups of members of the polity happen to constitute systematically and permanently a minority in democratic decision processes.

          Some groups, as it is well-known, have been historically subjected to some sort of exclusion from full participation on equal footing compared to the dominant majority. Similar cases, according to some theorists, should be tackled by recognizing the unfair disadvantage suffered by them and by granting specific rights (e.g. special representation) or differential treatment concerning ethical-sensitive issues (e.g. exemptions). Apparently, the sort of remedies to such disadvantaged conditions might differ from group to group, according to the nature of the group itself, i.e. the nature of the disadvantage suffered by its members. Here one can stress a first problem: what comes first, in the conceptual analysis of the issue? Minorities or disadvantage? Should we identify minorities and then evaluate what is their specific disadvantage or, on the contrary, define minorities by grouping disadvantaged individuals on the basis of some objective criteria?[lxiv] The redistribution/recognition distinction might be helpful to clarify such a question.

 

  1. Redistribution and recognition

According to a possible analytical distinction, there are two main kinds of injustice individuals can suffer as members of groups: economic and/or cultural injustices[lxv]. For each kind of injustice diverse remedies seem to be in order, given the different nature of the disadvantage.

          On one hand, redistribution of wealth and social positions have been traditionally considered the appropriate means for redressing economic injustice – social and economic unjustified inequalities (e.g. unequal salaries) and lack of equal opportunities (e.g. Career and access to public positions). However, there are problematic issues connected to differences which apparently cannot be resolved by mere redistribution, being due to structural features of the social, economic and cultural system, preventing some citizens from exercising certain political and social rights on equal footing as others, and to participate and compete under fair conditions. For such issues policies of recognition seem to be necessary: i.e. symbolic policies aiming at the revaluation of the public image of those who are unjustly disadvantaged by the social models of the dominant representation, interpretation and communication[lxvi]. Standards of social success, organization of the work and cultural models, implicit in some institutions – public or not -, are indeed almost calibrated on the needs, the ends and sometimes also the taste of a dominant group and while presenting themselves as neutral they are based on a standard image of the citizen. Models of education, family conceptions, dietary options, dress codes are examples of such standards which are relational and structural and cannot be modified by redistribution alone. On the contrary, when mere redistribution policies seem to be ineffective, they risk becoming counterproductive exactly by reinforcing social and cultural stigmas[lxvii]. Multiculturalism and more specifically multicultural policies can been seen in part as the attempt to remove precisely this kind of injustice. In the next section I will sketch Kymlicka’s influential contribution to a liberal theory of minority rights focusing on the definition of minorities.

 

  1. Cultural minorities

Multicultural issues and more specifically the idea that to recognize minority rights is just and legitimate are still controversial questions in both public and academic debates. It is a fact, however, that several national and international institutions recognize such rights in some way. According to Kymlicka’s account of minority rights[lxviii], this change rather than putting into question the universal idea of human rights appeals precisely to it. What would be questioned, indeed, is the relation between minority rights and universal norms of justice by holding that minority rights are a precondition for the equal opportunity to exercise other rights.

          Despite this state of affairs and notwithstanding the research aiming to show the success of multicultural policies, and their positive role in terms of peace and democracy[lxix] as well, the notion of cultural minority is still controversial. According to Kymlicka, modern multinational and/or polyethnic states are confronted with two main patterns of cultural diversity corresponding to two different kinds of minorities: national minorities or indigenous people who claim forms of self-government and autonomy in order to preserve their culture as distinct from the mainstream one; and immigrants or ethnic groups that negotiate polyethnic or accommodation rights in order to integrate into the larger society, while trying to make its institutions more accommodating to some traditional aspects of their culture of origin.

          Such claims would be justified since those groups would share, as members of a nation, what Kymlicka calls a societal culture: “a culture which provides its members with meaningful ways of life across the full range of human activities, encompassing both public and private spheres. These cultures tend to be territorially concentrated, and based on a shared language”[lxx].

          According to these definitions, the main difference between such groups are that on the one hand a national minority dwells in a homeland while immigrants inhabit a foreign country, on the other hand that distinction of immigrants does not look “inconsistent with their institutional integration” and so they can be expected to “participate within the dominant culture(s) and speak the dominant language(s)”[lxxi]. There is moreover another category, i.e. indigenous people[lxxii] that while having some similarities with national minorities – since they consider the territory they live in as their homeland – they apparently cannot claim the status of nation, as well as immigrants in the guest countries. They do seem to claim the same rights as those accorded to national minorities given the acknowledgement of the policies aimed at deleting their culture, enacted systematically by the states created in the territory they already inhabited.

          Actually, the category of indigenous people, which has been recognized, however, on the basis of reasons and under different conditions from those of national minorities – where they are legally acknowledged – provides a further criterion for clarifying the logic of ethnocultural rights. The idea of distinguishing between rights and forms of autonomy and self-government on one hand and rights of accommodation on the other can be formulated also as a distinction – based on a basic model already quite common – between ‘old’ minorities, which settled the territory before it became part of a wider independent state, and ‘new’ minorities like the groups of immigrants who arrived after state-building[lxxiii] .

          Standard categorizations largely recognized in many legal systems and also by international law evolved and brought about some practical consequences. The apparent successes of multicultural policies, indeed, partially changed the perception itself of minority rights, which today can be interpreted as constraints to the processes of nationbuilding. Recent international law contributed to modifying the context within which minority claims take place. In other terms, the idea of a unitary, homogeneous and centralized state has been challenged, while pluralistic, multilingual and multilevel states are increasingly seen as the representation of a modern approach.

          This change in perspective has obviously had some implications on the legitimacy of minorities as political players. Since the ethnic claims are apparently no longer viewed suspiciously and some rights have been recognized to ethnic minorities and indigenous people an increase has been noticed in mobilisation of ethnocultural groups. Even if the international community does not apply pressure directly and rights exist only on paper, they legitimize such mobilisations and today minorities in their countries can appeal to international standards which the states already subscribed.

          So, according to Kymlicka, the point is exactly that the mere recognition by multicultural liberalism of some generic group rights for ethnocultural groups is not sufficient while an elaboration of targeted categories is necessary. Indeed, in different contexts, the difference between groups can result in independent and conflicting strategies, with various outcomes, and for this reason the ‘logic’ of multiculturalism cannot be generalised by granting the same rights to all minorities and to all their members.

          The correct way of viewing liberal multiculturalism would not simply be, according to Kymlicka, as a conception according to which states should recognise certain rights of some groups beyond the usual citizenship rights. Multiculturalism should rather be conceived as a reaction to the idea of a model of homogeneous and unitary nation-state[lxxiv]. Indeed, policies enacted in order to build a nation can be various but all tend to constitute political domination exercised by the dominant ethnocultural group and have as an effect the making of minoritarian cultures publicly invisible, by centralising political and legal power and favouring the majoritarian culture and language. Historically speaking, such policies have been enacted on pain of serious injustices and discrimination and they excluded from the nation-building process precisely those who were most concerned, since they would have paid the highest cost – cultural but not only. And it is exactly such groups who react by claiming, legitimately, multicultural and multi-national models of state.

          There are different criticisms one might move against ethnocultural models. In the next section I will briefly consider some arguments against multicultural policies, which I hold as incompatible with welfare policies.

 

  1. Against multicultural politics

As already mentioned, mere redistribution policies might seem insufficient to redress some kinds of inequality suffered by groups’ members, when not reinforcing prejudice against them. It is in similar cases that the need for symbolic cultural recognition acquires its persuasiveness. However, some theorists oppose multicultural policies tout court, intended as politics of recognition, by arguing that they work against welfare policies. If this were true, it would make it possible for the worst-off to be even worse because of those policies.

          According to Kymlicka, “a growing chorus of researchers and commentators argue that ethnic/racial diversity makes it more difficult to sustain redistributive policies, regardless of the types of policies that governments adopt to manage that diversity. Such arguments assume that it is inherently difficult to generate feelings of national solidarity and trust across ethnic/racial lines, and that the very presence of sizeable ethnic/racial diversity erodes the welfare state. We will call this the ‘heterogeneity/redistribution trade-off’ hypothesis.”[lxxv].

          According to those who are rather sceptical about multicultural policies[lxxvi] they would either:

(a) produce the crowding-out effect of weakening “pro-redistribution coalitions by diverting time, energy, and money from redistribution to recognition”; or

(b) the corroding effect “by eroding trust and solidarity amongst citizens, and hence eroding popular support for redistribution” by emphasizing differences and then impairing the common identity among co-citizens; or

(c) the misdiagnosis effect of making people think that the main problems of minority groups can be solved by recognizing ethnic identities and practice while ‘they lie elsewhere’ and furthermore distorting “people’s understanding of the causes of disadvantage, by denying or failing to acknowledge the reality of racism and class inequality”[lxxvii]. Again, according to Kymlicka, it is plausible that such effects might contribute to explaining why the rise of multicultural policies might have intentionally or inadvertently contributed to the retrenchment of the welfare state and that the plausibility of this concern has even led some defenders of MCPs to rethink their approach. However, the evidence is not the same in every country: “It is not at all clear that the presence or absence of MCPs had any bearing on whether or how the welfare state was restructured”. A counterargument is that the counterfactual existence of ‘sizeable coalitions’ of citizens pro welfare state, if there were not multicultural policies, is hard to prove while a ‘passivity’ on economic issues can be due to scepticism about egalitarian policies. On the contrary multicultural policies might have reinvigorated the left in some contexts. In other words, it is arguable that political mobilization is to be conceived as a zero-sum game and it is plausible that more participation, on any issue, could reinforce both the ‘old’ issues of justice and the new ones, by increasing citizens’ confidence in the effectiveness of their political agency.

          If there is not conclusive evidence proving that redistributive and multicultural policies bring about effects which in practice contradict or weaken each other, one might be tempted to design a political space where they cooperate. In the next section I will briefly consider Marion Young’s critique to ethnocultural model, which is precisely an alternative proposal of how minority-majority relationships should be interpreted, which put into question the, so to speak, ‘traditional’ conception of politics of recognition by challenging the definition of relevant groups.

 

  1. An internal critique

In this section I shall consider the objection of the continuum, raised by Marion Iris Young against the ethnocultural model of minority rights. Young asserts to share “Kymlicka’s liberal defense of group rights is powerful and persuasive” and endorses the distinctions Kymlicka draws between different kinds of cultural minorities, given the need to “develop specific arguments about justice required for each”[lxxviii].

          Nevertheless, she questions Kymlicka’s account accusing it of being in some way contradictory. According to Young’s account, Kymlicka’s project, while being a pluralizing one, ends up in duality. The distinction which Kymlicka draws is indeed, in Young’s view, not only not sufficient to grasp and handle real differences between groups, but also yields a contradiction in Kymlicka’s project’s own terms. His distinction between national minorities and ethic minorities is, in Young criticism, on one hand, too rigid to account for a notion of multicultural citizenship; on the other hand, being dual rather than plural, it makes it hard to understand the very notion of multicultural citizenship. Moreover, Young cites several examples of ‘anomalies’[lxxix] that cannot be grasped by such a model and would show that it would be “better to think of cultural minorities in a continuum, or perhaps in a set of continuua”.

          Thus, not only can minorities not be defined, as Kymlicka does, in dichotomous terms – to whom a related and clear-cut distinction of rights would correspond – but they have to be conceived in their complexity and especially in their gradualness. As Young correctly stresses, if one looks at the world through Kymlicka’s model, there are few groups which are able to pass the test of minority status compared to the ‘culturally’ disadvantaged groups quite clearly identifiable in contemporary democratic societies.

          The difficulties of categorization in general are acknowledged by Kymlicka (see especially Kymlicka in his work dated 2007)[lxxx]. He also admits that when the practice of categorization goes wrong multicultural policies for reducing inequalities prove to be highly questionable, e.g. The bureaucratic categories designed for identifying the beneficiaries of policies are insensitive to their aspirations, putting together very different issues under the same label and indirectly damaging the more disadvantaged in the target group while privileging some other members.

          As to ethnocultural minorities, Kymlicka suggests to imagine targeted rights for groups, which can be sensitive to their different nature, aspiration and claims, rather than recognize generic minority rights (e.g. linguistic, representation) extended to any kind of cultural minority. The problem of the targeted approach is that we lack a systematic account of appropriate and feasible individuation criteria and this state of affairs risks ending up in loss of confidence in multicultural policies or ad hoc interpretations of them, which can subvert their original purpose.

          The targeted approach aims to prevent predictable injustices in minority-state relations, by conceiving minority rights a protection from the cultural power of modern nation-states. But they should be calibrated on different cases, since the groups involved in each context are different in respect to their history and aspirations. However, Kymlicka acknowledges that unfortunately the fact that we do not have an account which is universally accepted can put into question the very idea that minority rights should be recognised.

          Even if we admit this is true, and I think we should, we are not necessarily committed to giving up an even imperfect and incomplete distinction, or at least a reformulation of it. We could apparently just accept that there are other disadvantaged groups which do not constitute cultural minorities in a proper sense and might constitute cultural minorities in other senses which must be specified but can be compatible with the given definitions. However, Young’s criticism of such a multicultural model is more radical. She argues that the model itself of cultural minority based on the idea of nation/societal culture is to be rejected. Such a model of multicultural citizenship indeed represents the relation between the state and minorities – cultural or not – in a misleading way.

          Actually, Young and Kymlicka basically agree both on the importance and necessity of group rights in liberal democracy and on the fact that the categorisations of groups can hardly be clear-cut. This is the main reason why I would define Young’s objection as internal.

          Kymlicka openly admitted the limits of his distinctions and acknowledged there is a grey area of hard cases that are not clear how to treat. Given this ‘admission’, the argument of anomalies does not seem to me the more relevant objection made by Young to Kymlicka’s account. Young’s argument questions more deeply Kymlicka’s account pointing out the grounds of the distinction, i.e. the notion of ‘nation’, and she suggests abandoning it. In more recent works[lxxxi] she provides an alternative account of differentiated citizenship which is not based on the concept of nation and criticizes the idea of integration itself by proposing an idea of democratic inclusion based on the recognition of social groups suffering structural inequalities. In Young’s account, social and economic inequalities reproduce and perpetuate themselves in institutions and negatively affect political agency of citizens by marginalizing their voices in formally democratic procedures as well. The analysis in terms of structural social groups would show that they are more important in assessing issues about justice: “Differentiations of gender, race, or ability are more like class than ethnicity, I argue, inasmuch as they concern structural relations of power, resource allocation, and discursive hegemony. Even where the basis of group differentiation more concerns culture than structure, furthermore, claims to cultural recognition usually are means to the end of undermining domination or wrongful deprivation. A strong communicative democracy, I conclude, needs to draw on social group differentiation, especially the experience derived from structural differentiation, as a resource. A democratic process is inclusive not simply by formally including all potentially affected individuals in the same way, but by attending to the social relations that differently position people and condition their experiences, opportunities, and knowledge of the society”[lxxxii].

          Young opposes these definitions of groups as an essentialist approach that is blind to internal differences and disagreement and apply a logic of ‘inside-outside’ as if group differences could single out common identities rather than more concrete goals.

          The most important criticism of the idea of an essentialist group identity that members should share, however, concerns its apparent denial of differentiation within and across groups. Cross-cutting differences from the mainstream culture or the majoritarian standards of citizenship put disadvantaged members of society into a plurality of social groups. So if groups defined identities and membership defined individual identity, it would be difficult to account both theoretically and practically for ‘the fact of multiple group positioning’. In an essentialist account, ontological problems can give rise to political issues by marginalizing or silencing some group members. Groups, therefore, according to Young, should be conceived as consisting in both the individuals and their relationships. “A relational conception of group difference does not need to force all persons associated with the group under the same attributes. Group members may differ in many ways, including how strongly they bear affinity with others of the group. A relational approach, moreover, does not designate clear conceptual and practical borders that distinguish all members of one group decisively from members of others. Conceiving group differentiation as a function of relation, comparison, and interaction, then, allows for overlap, interspersal, and interdependence among groups and their members”[lxxxiii] .

 

  1. The problems of categorization reformulated

The two accounts I sketched are incompatible under several respects. In particular, as far as I am concerned, they seriously diverge on the definitions of relevant groups to be addressed by policies of recognition. However persuasive, I find Young’s account suffering at least from two major problems:

  1. To conceive minorities along a continuum, without envisioning criteria or thresholds which enable us to identify when groups have – for example – title to specific claims as a group, makes the account very uncertain and at risk of not being able to solve the very problems the policies of recognition of minority rights are conceived for.
  2. To underestimate the importance and the – also theoretical – role of values which some oppressed people already proved to cherish – like e.g. the idea of being a member of a nation and then to be in some respects exclusive for the sake of a more genuine inclusion.

          To reformulate the issue in other terms, the problem as I see it is the following:

  1. there are groups which are not cultural minorities in a proper sense but suffer from analogous kinds of disadvantage;
  2. such disadvantage, while not to be described as ‘cultural’, works apparently in a structural way which seems very similar to that suffered by members of properly defined cultural minorities.
  3. The elimination of or the compensation for such disadvantages should be of the same nature, i.e. according to a standard definition, or its reformulation, some policies of recognition should be appropriate for a sub-cultural disadvantage.

          In other words, Young’s objection of the continuum against Kymlicka’s classification of cultural minorities points out perhaps that there are issues concerning the politics of recognition which cannot be reduced to an analysis in terms of cultural minorities and rights but concern, so to speak, sub-cultural minorities. The question is more precisely whether, by accepting Kymlicka’s model, we are committed to the claim that there are cultural minorities and that only they can lodge claims for special treatment and rights, even if not necessarily minority or group rights. To be sure, if one thinks that only the recognition of the status of minority can grant access to targeted rights or special treatment under certain conditions, defining disadvantaged categories as minority might seem to be fundamental. Otherwise, one can accept that other concepts can produce satisfactory outcomes as well. An additional problem seeming to arise is that, even if the analogy between cultural and sub-cultural disadvantage can hold, the appropriate kind of policies are to be envisioned for such a disadvantage.

          Indeed, in order to determine what measures are appropriate, apparently the nature of the group concerned should be determined previously. But this seems to presuppose, in turn, an argument to show what groups are entitled to differential treatment and why.

          If we think in terms of access to a societal culture, as described by Kymlicka, we could be tempted to expand the model of ethnocultural differences arguing that in many cases some sub-cultural groups do not have the same opportunities of exercising their equal rights compared to other members of their societal culture. So Kymlicka’s argument about the importance of a societal culture can be reformulated to answer the internal social claims which normally arise in regimes of democratic pluralism. Some multicultural claims are indeed against a mainstream culture which is inhospitable for persons who are holders of some specific differences (e.g. gay and women’s movements against male chauvinism). Differences underlying such claims are not connected to forms of disadvantage of a merely economic nature, which would appear to be resolvable through redistributive measures, but to socially relevant features crossing classes and economic conditions. To use the terminology used so far they should be defined as ‘cultural’.

          This analogy probably goes too far but I think that it puts us on the right track. What I shall propose in the next and last section is a sort of ‘reconciliation’ account of the definition of minorities based on the idea of equal respect for people as a democratic political value.

 

  1. Respectful policies of recognition and groups

Going back to the analysis of redistribution/recognition distinction, what clearly characterizes the different accounts I sketched in this paper is on one hand the concern over a conflict between multicultural policies as policies of recognition, which emphasize differences among members of the polity, and egalitarian policies of redistribution; on the other hand all the approaches aim at the elimination of inequalities suffered by individuals as members of disadvantaged groups and share the hope that policies addressing those groups are not self-defeating in improving the conditions of individuals concerned and democratic institutions.

          As Kymlicka correctly notices, public labels placed on individuals are always imperfect but these are well-known pathologies of public policies in general in liberal democracy whether they concern age, class, gender, neighbourhood, region or family status and there is no reason to belief that these pathologies afflict multicultural policies more seriously than others[lxxxiv].  By using a happy distinction made by Miller we should “distinguish multiculturalism as ideology from multiculturalism as public policy”[lxxxv]. Multicultural policies can be seen as a subset of policies of recognition which should address specific inequalities as a response to a demand for more equality rather than a demand for recognition of differences as differences.

          Moreover, many theories on groups and/or group identities seem to agree on the fact that group relations should be conceived in a transformative way as opposed to a merely affirmative one[lxxxvi] and this can lead to a convergence of methods. I cannot develop this idea here but I think that a transformative approach to the definition of groups that matter in liberal democracies should lead to outlining policies and/or institutional procedures which guarantee full political agency to individuals as members of disadvantaged groups and enable them to influence both their mainstream background culture and the minority they are a member of. Such an approach should avoid employing categories that are so ‘rigid’ they trap their members but stable enough to make it possible to identify groups and contemplate policies to apply to them, even at the cost of a certain degree of oversimplification.

          A promising path to these challenges would be to appeal to the value of equal respect. As I will try to show, indeed, it can enable us to give a single account of the reasons why cultural or religious claims of individuals who are members of recognized groups should be assessed in an analogous way as claims of individuals whose ‘membership’ is neither recognized nor ‘obvious’. I will make two general assumptions that are not too controversial: a) that liberal democratic institutions should treat all persons with respect and b) that it is unreasonable not to expect at least a certain degree of pluralism.

          The kind of respect owed to persons in liberal democratic theory is modelled on the notion of recognition respect for persons as such[lxxxvii]. Such a specific kind of recognition respect is owed to persons as moral agents and, being independent on any actual performance, it is accorded unconditionally to those whom the status is ascribed (conditionally on the possession of the relevant property – moral agency). This kind of respect is, however, given equally to any person as such since it is assumed that anyone has the relevant property to a sufficient degree. An insightful account of this kind of respect is Carter’s idea of opacity respect as an attitude of evaluative abstinence about persons’capacities[lxxxviii].

          Moreover, recognition respect is second-personal in its nature: “The act of recognition of another as my equal can be twofold: it can be a generalizing act which sees common humanity behind the individual, or it can be an individualizing one which sees the person in the individual. In the first case, the recognition is not second-personal, because it comes only by abstracting from the individual in front of me, and it comes with a price, the price of bracketing the individual person as she or he is. Dispensing with his or her special traits, I eventually see the common humanity. By contrast, in the case of an individualizing act of recognition I see a moral partner in the person as he or she stands in front of me. Only in this latter case the second-person nature of respect is properly captured, hence I claim that respect is properly paid only by an individualizing act of recognition”[lxxxix].

          Respect, however, requires also reciprocity and accountability[xc] since to treat persons as moral agents and ascribing the moral agency to them means also to be entitled to have expectations and claims on them.

          The moral powers of individuals have the potential to produce pluralism in liberal democratic regimes where persons have different moral doctrines and beliefs and given their different positions in society and cultural traits can draw different judgements on the same issues. Therefore, to treat persons with equal respect seems to require recognizing them as persons – and so as equal moral agents – “neither despite, nor in virtue of, but given their identity”[xci].

          Thus, in order to express respect for persons, on one hand institutions should be calibrated on the idea of person as moral agent, “self-originating sources of valid claims”, and so be able to guarantee visibility and full participation on equal footing – e.g. by envisaging some kind of policies of recognition; on the other hand, the attitudes institutions should show must be coherent with the idea of treating all as equals by giving due consideration to the fact that they are persons and to treat them as moral partners in their relations with them – e.g. institutions should not be patronizing nor dismissive.

          In other terms, as a matter of respect, minoritarian claims should be taken into consideration and treated in a respectful manner[xcii] by institutions at least prima facie regardless of their content (even if they cannot be satisfied).

          This is the practical implication of the use of the notion of equal respect which I find more interesting for the problems of ‘defining’ minorities or groups. Some difference would represent cultural minoritarian issues which might require targeted policies of recognition.

          Such policies would also take into due consideration the fact that what those who are ‘excluded’ claim is not only to be included (e.g. via assimilation) but to modify the culture itself, given the recognition of equal moral agency and its transformative potential in terms of mutual accommodation.

          Instances of this sort are e.g. minoritarian dietary practices.

  • They are shared by various groups which are not organised, homogeneous and unitary.
  • Their issues are often dismissed by the majority as of little importance (private, relative to subjective preferences).
  • Such issues are not recognised as questions which should receive public recognition and appropriate answers from institutions.

          However, such minoritarian instances, like the demand for alternative menus by vegetarians, are usually claims concerning the exercise of choices which are not incompatible with any of the rules of a peaceful democratic regime, but are not guaranteed. Through such a conceptualisation, then, we can account for minoritarian issues which cannot be connected to a sufficiently precise and stable reference group but that apparently require some sort of public recognition. Such issues represent positions which are weak in terms of visibility and political power compared to the points of view of the cultural majority and sometimes aim to put under discussion the mainstream interpretation of their culture, by making it more plural (i.e. questioning the idea itself that there are standards anyone has to satisfy or making those standards less rigid).

          When social standards are at stake the following conditions might hold:

  • Some social standards put someone in a disadvantaged position for no sound reasons.
  • Social culture as a set of institutionalized practices cannot be modified by decree.
  • Minoritarian claims require public recognition for having a chance to ‘update’ the social standards defining what is to be considered as ‘normal’.
  • Such differences can be reconciled with majoritarian cultural standards by a public act of recognition as equals from the point of view of institutions, rather than by the promotion of those differences as differences.

          Such options, indeed, do not have an intrinsic value but they are valuable insofar there are persons for whom they are meaningful. Applying this approach also to multicultural policies and to the definition of groups one can avoid underestimating the importance of mobilisation and participation without being too demanding for those who are concerned. This approach is also promising for assessing ‘new minorities’ issues as well as the old ones on the basis of the same reasons and according to the same criteria.

 

SECTION IV

Religion, European secular identities, and European integration

 «Deus, sive natura»

(B. Spinoza, Ethics)

 

«In the name of religion, torture, persecution, pyres are built.

In the name of love for your country or for your race,

you hate other countries, you despise them, you massacre them.

In the name of equality and brotherhood it is suppressed and tortured.

Ideologies and religion are the alibi of the wicked»

(E. Ionesco)

 

  1. Introduction

The rapid and drastic process of secularization in western Europe over the last decades has not diminished the continuing unease with which Europe considers the Islamic religion and Muslims in its midst. In this part of my essay, I argue that the “Islam problem” is an indicator of the disparity between liberal and illiberal strands of European secularism, focusing on post-secular tendencies and religion(s) in the new Europe.

          Moreover, I will try to answer to the following pressing questions: “Is religion a public or a private matter? Can there be such a thing as a European Islam? If so, what characterizes it? What role can religion – or religions – play when it comes to the emergence of a European solidarity”?

 

  1. A focal point: post-secular Europe?

Since the signing of the Treaty of Rome in 1957 that established the EEC and initiated the ongoing process of European integration, western European societies have undergone a rapid, drastic, and seemingly irreversible process of secularization. In this respect, one can talk of the emergence of a post-Christian Europe. At the same time, the process of European integration, the eastward expansion of the European Union, and the drafting of a European constitution have triggered fundamental questions concerning European identity and the role of Christianity in that identity. What constitutes “Europe”? How and where should one draw the external territorial and the internal cultural boundaries of Europe? The most controversial and anxiety-producing issues, which are rarely confronted openly, are the potential integration of Turkey and the potential integration of non-European immigrants, who in most European countries happen to be overwhelmingly Muslim. It is the interrelation between these phenomena that I would like to explore in this part of paper.

          The progressive, though highly uneven, secularization of Europe is an undeniable social fact[xciii]. An increasing majority of the European population has ceased to participate in traditional religious practices, at least on a regular basis, while still maintaining relatively high levels of private individual religious beliefs. In this respect, one should perhaps talk of the unchurching of the European population and of religious individualization, rather than of secularization. Grace Davie has characterized this general European situation as “believing without belonging”[xciv]. At the same time, however, large numbers of Europeans even in the most secular countries still identify themselves as “Christian,” pointing to an implicit, diffused, and submerged Christian cultural identity. In this sense, Danièle Hervieu-Léger is also correct when she offers the reverse characterization of the European situation as “belonging without believing”[xcv]. “Secular” and “Christian” cultural identities are intertwined in complex and rarely verbalized modes among most Europeans.

          The most interesting issue sociologically is not the fact of progressive religious decline among the European population, but the fact that this decline is interpreted through the lenses of the secularization paradigm and is therefore accompanied by a “secularist” self-understanding that interprets the decline as “normal” and “progressive”, that is, as a quasi-normative consequence of being a “modern” and “enlightened” European. It is this “secular” identity shared by European elites and ordinary people alike, that paradoxically turns “religion” and the barely submerged Christian European identity into a thorny and perplexing issue when it comes to delimiting the external geographic boundaries and to defining the internal cultural identity of a European Union in the process of being constituted.

          I would like to explore some of the ways in which religion has become a perplexing issue in the constitution of “Europe” through a review of four ongoing controversial debates: the role of Catholic Poland, the incorporation of Turkey, the integration of non-European immigrants, and the place of God or of the Christian heritage in the text of the new European constitution.

 

  1. Catholic Poland in post-Christian Europe: secular normalization or great apostolic assignment?

The fact that Catholic Poland is “re-joining Europe” at a time when western Europe is forsaking its Christian civilizational identity has produced a perplexing situation for Catholic Poles and secular Europeans alike[xcvi]. It suffices to state here that throughout the Communist era, Polish Catholicism went through an extraordinary revival at the very same time when western European societies were undergoing a drastic process of secularization. The reintegration of Catholic Poland into secular Europe can be viewed therefore as “a difficult challenge” and/or as “a great apostolic assignment”. Anticipating the threat of secularization, the integralist sectors of Polish Catholicism have adopted a negative attitude towards European integration. Exhorted by the Polish Pope, the leadership of the Polish church, by contrast, has embraced European integration as a great apostolic assignment.

          The anxieties of the “Europhobes” would seem to be fully justified since the basic premise of the secularization paradigm, that the more a society modernizes, the more secular it becomes, seems to be a widespread assumption, also in Poland. Since modernization, in the sense of catching up with European levels of political, economic, social, and cultural development, is one of the goals of European integration, most observers tend to anticipate that such a modernization will lead to secularization also in Poland, putting an end to Polish religious “exceptionalism”. Poland becoming at last a “normal” and “unexceptional” European country is after all one of the aims of the “Euroenthusiasts”.

          The Polish Episcopate, nevertheless, has accepted enthusiastically the papal apostolic assignment and has repeatedly stressed that one of its goals once Poland rejoins Europe is “to restore Europe for Christianity”. While it may sound preposterous to western European ears, such a message has found resonance in the tradition of Polish messianism. Barring a radical change in the European secular zeitgeist, however, such an evangelistic effort has little chance of success. Given the loss of demand for religion in western Europe, the supply of surplus Polish pastoral resources for a Europe-wide evangelizing effort is unlikely to prove effective. The at best lukewarm, if not outright hostile European response to John Paul II’s renewed calls for a European Christian revival points to the difficulty of the assignment.

          I suggest that a less ambitious, though no less arduous, apostolic assignment could perhaps have equally remarkable effects. Let Poland prove the secularization thesis wrong. Let Polonia simper fidelis keep faith in its Catholic identity and tradition while succeeding in its integration into Europe, thus becoming a “normal” European country. Such an outcome, if feasible, could suggest that the decline of religion in Europe might be not a teleological process necessarily linked with modernization but a historical choice that Europeans have made. A modern religious Poland could perhaps force secular Europeans to rethink their secularist assumptions and realize that it is not so much Poland which is out of sync with modern trends, but rather secular Europe which is out of sync with the rest of the world. Granted, such a provocative scenario is only meant to break the spell which secularism holds over the European mind and over the social sciences.

 

  1. Could a democratic Muslim Turkey ever join the European Christian club. Or, which is the torn country?

While the threat of a Polish Christian crusade awakens little fear among secular Europeans confident of their ability to assimilate Catholic Poland on their own terms, the prospect of Turkey joining the European Union generates much greater anxieties among Europeans, Christian and post-Christian alike, but of the kind which cannot be easily verbalized, at least not publicly. Turkey has been patiently knocking on the door of the European club since 1959, only to be told politely to keep waiting, while watching latecomer after latecomer being invited first in successive waves of accession.

          The formation of the European Coal and Steel Community (ECSC) in 1951 by the six founding members (Benelux, France, Italy, and West Germany) and its expansion into the European Economic Community (EEC) or “common market” in 1957 was predicated upon two historic reconciliations: the reconciliation between France and Germany, two countries which had been at war or preparing for war from 1870 to 1945; and the reconciliation between Protestants and Catholics within Christian Democracy. Indeed ruling or prominent Christian Democrats in all six countries played the leading role in the initial process of European integration. The Cold War, the Marshall Plan, NATO, and the newly established Washington-Rome Axis formed the geopolitical context for both reconciliations. Greece in June 1959 and Turkey in July 1959, hostile enemies yet members of NATO, were the first two countries to apply for association to the EEC. That same July, the other western European countries formed EFTA as an alternative economic association. Only Franco’s Spain was left out of all initial western European associations and alliances.

          The EEC always made clear that candidates for admission would have to meet stringent economic and political conditions. Ireland, The United Kingdom, and Denmark formally applied for admission in 1961 but only joined in 1973. Spain and Portugal were unambiguously rebuffed as long as they had authoritarian regimes, but were given clear conditions and definite timetables once their democracies seemed on the road to consolidation. Both joined in 1986. Greece, meanwhile, had already gained admission in 1981 and with it de facto veto power over Turkey’s admission. But even after Greece and Turkey entered a quasi-détente and Greece expressed its readiness to sponsor Turkey’s admission in exchange for the admission of the entire island of Cyprus, Turkey still did not receive an unambiguous answer, being told once again to go back to the end of the queue. The fall of the Berlin Wall once again rearranged the priorities and the direction of European integration eastward. In 2004, ten new members, eight ex Communist countries plus Malta and Cyprus are set to join the European Union. Practically all the territories of Medieval Christendom, that is, of Catholic and Protestant Europe, will now be reunited in the new Europe. Only Catholic Croatia and “neutral” Switzerland will be left out, while “Orthodox” Greece as well as Greek and Turkish Cyprus will be the only religious “other”. “Orthodox” Romania and Bulgaria are supposed to be next in line, but without a clear timetable. Even less clear is if and when the negotiations for Turkey’s admission will begin in earnest.

          The first open, if not yet formal, discussions of Turkey’s candidacy during the 2002 Copenhagen summit touched a raw nerve among all kinds of European “publics”. The widespread debate revealed how much “Islam” with all its distorted representations as “the other” of Western civilization was the real issue rather than the extent to which Turkey was ready to meet the same stringent economic and political conditions as all other new members. About Turkey’s eagerness to join and willingness to meet the conditions, there could be no doubt now that the new, officially no longer “Islamic” government had reiterated unambiguously the position of all the previous Turkish “secularist” administrations. Turkey’s “publics”, secularist and Muslim alike, had spoken in unison. The new government was certainly the most representative democratic government of all of Turkey’s modern history. A wide consensus had seemingly been reached among the Turkish population, showing that Turkey, on the issue of joining Europe and thus “the West”, was no longer a “torn country”. Two of the three requirements stated by Samuel Huntington for a torn country to redefine successfully its civilizational identity had clearly been met: “First, the political and economic elite of the country has to be generally supportive of and enthusiastic about this move. Second, the public has to be at least willing to acquiesce in the redefinition of identity”[xcvii]. It was the third requirement that apparently was missing: “The dominant elements in the host civilization, in most cases the West, have to be willing to embrace the convert.”

          The dream of Kemal, “Father of the Turks”, of begetting a modern Western secular republican Turkish nation-state modeled after French republican laïcité has proven not easily attainable, at least not on Kemalist secularist terms. But the possibility of a Turkish democratic state, truly representative of its ordinary Muslim population, joining the European Union, is today for the first time real. The “six arrows” of Kemalism (republicanism, nationalism, secularism, statism, populism, and reformism) could not lead towards a workable representative democracy. Ultimately, the project of constructing such a nation-state from above was bound to fail because it was too secular for the Islamists, too Sunni for the Alevis, and too Turkish for the Kurds. A Turkish state in which the collective identities and interests of those groups that constitute the overwhelming majority of the population cannot find public representation cannot possibly be a truly representative democracy, even if it is founded on modern secular republican principles. But Muslim Democracy is as possible and viable today in Turkey as Christian Democracy was half a century ago in western Europe. The still Muslim, but officially no longer Islamist party in power has been repeatedly accused of being “fundamentalist” and of undermining the sacred secularist principles of the Kemalist constitution which bans “religious” as well as “ethnic” parties, religion and ethnicity being forms of identity which are not allowed public representation in secular Turkey.

          One wonders whether democracy does not become an impossible “game” when potential majorities are not allowed to win elections, and when secular civilian politicians ask the military to come to the rescue of democracy by banning these potential majorities, which threaten their secular identity and their power. Practically every continental European country has had religious parties at one time or another. Many of them, particularly the Catholic ones, had dubious democratic credentials until the negative learning experience of Fascism turned them into Christian Democratic parties. Unless people are allowed to play the game fairly, it may be difficult for them to appreciate the rules and to acquire a democratic habitus. One wonders who the real “fundamentalists” are here. “Muslims” who want to gain public recognition of their identity and demand the right to mobilize in order to advance their ideal and material interests, while respecting the democratic rules of the game, or “secularists” who view the Muslim veil worn by a duly elected parliamentary representative as a threat to Turkish democracy and as a blasphemous affront against the sacred secularist principles of the Kemalist state? Could the European Union accept the public representation of Islam within its boundaries? Can “secular” Europe admit “Muslim” democratic Turkey? Officially, Europe’s refusal to accept Turkey so far is mainly based on Turkey’s deficient human rights record. But there are not-too-subtle indications that an outwardly secular Europe is still too Christian when it comes to the possibility of imagining a Muslim country as part of the European community. One wonders whether Turkey represents a threat to Western civilization or rather an unwelcome reminder of the barely submerged yet inexpressible and anxiety-ridden “white” European Christian identity.

          The widespread public debate in Europe over Turkey’s admission showed that Europe was actually the torn country, deeply divided over its cultural identity, unable to answer the question whether European unity, and therefore its external and internal boundaries, should be defined by the common heritage of Christianity and Western civilization or by its modern secular values of liberalism, universal human rights, political democracy, and tolerant and inclusive multiculturalism. Publicly, of course, European liberal secular elites could not share the Pope’s definition of European civilization as essentially Christian. But they also could not verbalize the unspoken “cultural” requirements that make the integration of Turkey into Europe such a difficult issue. The spectre of millions of Turkish citizens already in Europe but not of Europe, many of them second-generation immigrants, caught between an old country they have left behind and their European host societies unable or unwilling to fully assimilate them, only makes the problem the more visible. “Guest workers” can be successfully incorporated economically. They may even gain voting rights, at least on the local level, and prove to be model or at least ordinary citizens. But can they pass the unwritten rules of cultural European membership or are they to remain “strangers”? Can the European Union open new conditions for the kind of multiculturalism that its constituent national societies find so difficult to accept[xcviii]?

 

  1. Can the European Union welcome and integrate the immigrant “other”? Comparative perspectives from the American experience of immigration

Throughout the modern era, western European societies have been immigrant-sending countries, indeed the primary immigrant-sending region in the world. During the colonial phase, European colonists and colonizers, missionaries, entrepreneurs, and colonial administrators settled all corners of the globe. During the age of industrialization, from the 1800s to the 1920s, it is estimated that ca. 85 million Europeans emigrated to the Americas, to Southern Africa, to Australia and Oceania, 60 per cent of them to the United States alone. In the last decades, however, the migration flows have reversed and many western European societies have instead become centres of global immigration. A comparison with the United States, the paradigmatic immigrant society (despite the fact that from the late 1920s to the late 1960s it also became a society relatively closed to immigration), reveals some characteristic differences in the contemporary western European experience of immigration.

          Although the proportion of foreign immigrants in many European countries (United Kingdom, France, Holland, West Germany before reunification), at approximately 10 percent is similar to the proportion of foreign born in the United States, most of these countries still have difficulty viewing themselves as permanent immigrant societies or viewing the native second generation as nationals, irrespective of their legal status. But it is in the different ways in which they try to accommodate and regulate immigrant religions, particularly Islam, that European societies distinguish themselves not only from the United States but also from one another. European societies have markedly different institutional and legal structures regarding religious associations, very diverse policies of state recognition, of state regulation, and of state aid to religious groups, as well as diverse norms concerning when and where one may publicly express religious beliefs and practices.

          In their dealing with immigrant religions, European countries, like the United States, tend to replicate their particular model of separation of church and state and the patterns of regulation of their own religious minorities. France’s etatist secularist model and the political culture of laïcité require the strict privatization of religion, eliminating religion from any public forum, while at the same time pressuring religious groups to organize themselves into a single centralized church-like institutional structure that can be regulated by and serve as interlocutor to the state, following the traditional model of the concordat with the Catholic Church. Great Britain, by contrast, while maintaining the established Church of England, allows greater freedom of religious associations which deal directly with local authorities and school boards to press for changes in religious education, diet, etc, with little direct appeal to the central government. Germany, following the multi-establishment model, has tried to organize a quasi-official Islamic institution, at times in conjunction with parallel strivings on the part of the Turkish state to regulate its diaspora. But the internal divisions among immigrants from Turkey and the public expression and mobilization of competing identities (secular and Muslim, Alevi, and Kurd) in the German democratic context have undermined any project of institutionalization from above. Holland, following its traditional pattern of pillarization, seemed, until very recently at least, bent on establishing a state-regulated but selforganized separate Muslim pillar. Lately, however, even liberal tolerant Holland is expressing second thoughts and seems ready to pass more restrictive legislation setting clear limits to the kinds of un-European, un-modern norms and habits it is ready to tolerate.

          If one looks at the European Union as a whole, however, there are two fundamental differences with the situation in the United States. In the first place, in Europe immigration and Islam are almost synonymous. The overwhelming majority of immigrants in most European countries, the UK being the main exception, are Muslims and the overwhelming majority of western European Muslims are immigrants. This identification appears even more pronounced in those cases when the majority of Muslim immigrants tend to come predominantly from a single region of origin, e.g., Turkey in the case of Germany, the Ma’ghreb in the case of France. This entails a superimposition of different dimensions of “otherness” that exacerbates issues of boundaries, accommodation and incorporation. The immigrant, the religious, the racial, and the socio-economic disprivileged “other” all tend to coincide.

          In the United States, by contrast, Muslims constitute at most 10 percent of all new immigrants, a figure that is actually likely to decrease given the strict restrictions to Arab and Muslim immigration imposed after September 11 by the increasingly repressive American security state. Since the US Census Bureau, the Immigration and Naturalization Service, and other government agencies are not allowed to gather information on religion, there are no reliable estimates on the number of Muslims in the United States[xcix]. Available estimates range widely between 2,8 million and 8 million. Moreover, it is estimated that from 30 to 42 percent of all Muslims in the United States are African-American converts to Islam, making more difficult the characterization of Islam as a foreign, un-American religion. Furthermore, the Muslim immigrant communities in the United Sates are extremely diverse in terms of geographic region of origin from all over the Muslim world, in terms of discursive Islamic traditions, and in terms of socio-economic characteristics. As a result, the dynamics of interaction with other Muslim immigrants, with African-American Muslims, with non-Muslim immigrants from the same regions of origin, and with their immediate American hosts, depending upon socio-economic characteristics and residential patterns, are much more complex and diverse than anything one finds in Europe.

          The second main difference has to do with the role of religion and religious group identities in public life and in the organization of civil society. Internal differences notwithstanding, western European societies are deeply secular societies, shaped by the hegemonic knowledge regime of secularism. As liberal democratic societies they tolerate and respect individual religious freedom. But due to the pressure towards the privatization of religion, which among European societies has become a taken-forgranted characteristic of the self-definition of a modern secular society, those societies have a much greater difficulty in recognizing some legitimate role for religion in public life and in the organization and mobilization of collective group identities. Muslim organized collective identities and their public representations become a source of anxiety not only because of their religious otherness as a non-Christian and non-European religion, but more importantly because of their religiousness itself as the other of European secularity. In this context, the temptation to identify Islam and fundamentalism becomes the more pronounced. Islam, by definition, becomes the other of Western secular modernity. Therefore, the problems posed by the incorporation of Muslim immigrants become consciously or unconsciously associated with seemingly related and vexatious issues concerning the role of religion in the public sphere, which European societies assumed they had already solved according to the liberal secular norm of privatization of religion.

          By contrast, Americans are demonstrably more religious than the Europeans and therefore there is a certain pressure for immigrants to conform to American religious norms[c]. It is generally the case that immigrants in America tend to be more religious than they were in their home countries. But even more significantly, today as in the past religion and public religious denominational identities play an important role in the process of incorporation of the new immigrants. The thesis of Will Herberg concerning the old European immigrant, that “not only was he expected to retain his old religion, as he was not expected to retain his old language or nationality, but such was the shape of America that it was largely in and through religion that he, or rather his children and grandchildren, found an identifiable place in American life,” is still operative with the new immigrants[ci]. The thesis implies that collective religious identities have been one of the primary ways of structuring internal societal pluralism in American history.

          One should add as a corrective to the thesis that not religion alone, as Herberg’s study would seem to imply, and not race alone, as contemporary immigration studies tend to imply, but religion and race and their complex entanglements have served to structure the American experience of immigrant incorporation, indeed are the keys to “American  exceptionalism”. Today, once again, we are witnessing various types of collision and collusion between religious identity formation and racial identity formation, processes that are likely to have significant repercussions for the present and future organization of American multiculturalism. Religion and race are becoming, once again, the two critical markers identifying the new immigrants either as assimilable or as suspiciously “alien”.

          Due to the corrosive logic of racialization, so pervasive in American society, the dynamics of religious identity formation assume a double positive form in the process of immigrant incorporation. Given the institutionalized acceptance of religious pluralism, the affirmation of religious identities is enhanced among the new immigrants. This positive affirmation is reinforced moreover by what appears to be a common defensive reaction by most immigrant groups against ascribed racialization, particularly against the stigma of racial darkness. In this respect, religious and racial self-identifications and ascriptions represent alternative ways of organizing American multiculturalism. One of the obvious advantages of religious pluralism over racial pluralism is that, under proper constitutional institutionalization, it is more reconcilable with principled equality and non-hierachic diversity, and therefore with genuine multiculturalism.

          American society is entering a new phase. The traditional model of assimilation, turning European nationals into American “ethnics”, can no longer serve as a model of assimilation now that immigration is literally world-wide. America is bound to become “the first new global society” made up of all world religions and civilizations, at a time when religious civilizational identities are regaining prominence on the global stage. At the very same moment that political scientists like Samuel Huntington are announcing the impending clash of civilizations in global politics, a new experiment in intercivilizational encounters and accommodation between all the world religions is taking place at home[cii]. American religious pluralism is expanding and incorporating all the world religions in the same way as it previously incorporated the religions of the old immigrants. A complex process of mutual accommodation is taking place. Like Catholicism and Judaism before, other world religions, Islam, Hinduism, Buddhism are being “Americanized” and in the process they are transforming American religion, while the religious diasporas in America are simultaneously serving as catalysts for the transformation of the old religions in their civilizational homes, in the same way as American Catholicism had an impact upon the transformation of world Catholicism and American Judaism has transformed world Judaism.

          This process of institutionalization of expanding religious pluralism is facilitated by the dual clause of the First Amendment which guarantees the “no establishment” of religion at the state level, and therefore the strict separation of church and state and the genuine neutrality of the secular state, as well as the “free exercise” of religion in civil society, that includes strict restrictions on state intervention and on the administrative regulation of the religious field. It is this combination of a rigidly secular state and the constitutionally protected free exercise of religion in society that distinguishes the American institutional context from the European one. In Europe one finds on the one extreme the case of France, where a secularist state not only restricts and regulates the exercise of religion in society but actually imposes upon society its republican ideology of laïcité, and on the other the case of England, where an established state church is compatible with a wide toleration of religious minorities and a relatively unregulated free exercise of religion in society.

          As liberal democratic systems, all European societies respect the private exercise of religion, including Islam, as an individual human right. It is the public and collective free exercise of Islam as an immigrant religion that most European societies find difficult to tolerate precisely on the grounds that Islam is perceived as an “un-European” religion. The stated rationales for considering Islam “un-European” vary significantly across Europe and among social and political groups. For the anti-immigrant, xenophobic, nationalist Right, represented by Le Pen’s discourse in France and by Jörg Haider in Austria, the message is straightforward. Islam is unwelcome and un-assimilable simply because it is a “foreign” immigrant religion. Such a nativist and usually racist attitude can be differentiated clearly from the conservative “Catholic” position, paradigmatically expressed by the Cardinal of Bologna when he declared that Italy should welcome immigrants of all races and regions of the world, but should particularly select Catholic immigrants in order to preserve the Catholic identity of the country.

          Liberal secular Europeans tend to look askance at such blatant expressions of racist bigotry and religious intolerance. But when it comes to Islam, secular Europeans tend to reveal the limits and prejudices of modern secularist toleration. One is not likely to hear among liberal politicians and secular intellectuals explicitly xenophobic or anti-religious statements. The politically correct formulation tends to run along such lines as “we welcome each and all immigrants irrespective of race or religion as long as they are willing to respect and accept our modern liberal secular European norms”. The explicit articulation of those norms may vary from country to country. The controversies over the Muslim veil in so many European societies and the overwhelming support among the French citizenry, including apparently a majority of French Muslims, for the recently passed restrictive legislation prohibiting the wearing of Muslim veils and other ostensibly religious symbols in public schools, as “a threat to national cohesion”, may be an extreme example of illiberal secularism. But in fact one sees similar trends of restrictive legislation directed at immigrant Muslims in liberal Holland, precisely in the name of protecting its liberal tolerant traditions from the threat of illiberal, fundamentalist, patriarchal customs reproduced and transmitted to the younger generation by Muslim immigrants.

          Revealingly enough, we all remember that Prime Minister Jean-Pierre Raffarin, in his address to the French legislature defending the banning of ostensibly religious symbols in public schools made reference in the same breath to France as “the old land of Christianity” and to the inviolable principle of laïcité, exhorting Islam to adapt itself to the principle of secularism as all other religions of France have done before. “For the most recently arrived, I’m speaking here of Islam, secularism is a chance, the chance to be a religion of France”[ciii]. The Islamic veil and other religious signs are justifiably banned from public schools, he added, because “they are taking on a political meaning”, while according to the secularist principle of privatization of religion, “religion cannot be a political project”. Time will tell whether the restrictive legislation will have the intended effect of stopping the spread of “radical Islam” or whether it is likely to bring forth the opposite result of radicalizing further an already alienated and maladjusted immigrant community.

          The positive rationale one hears among liberals in support of such illiberal restriction of the free exercise of religion is usually put in terms of the desirable enforced emancipation of young girls, if necessary against their expressed will, from gender discrimination and from patriarchal control. This was the discourse on which the assassinated liberal politician Pim Fortuyn built his electorally successful anti-immigrant platform in liberal Holland, a campaign which is now bearing fruit in new restrictive legislation. While conservative religious people are expected to tolerate behaviour they may consider morally abhorrent such as homosexuality, liberal secular Europeans are openly stating that European societies ought not to tolerate religious behaviour or cultural customs that are morally abhorrent in so far as they are contrary to modern liberal secular European norms. What makes the intolerant tyranny of the secular liberal majority justifiable in principle is not just the democratic principle of majority rule, but rather the secularist teleological assumption built into theories of modernization that one set of norms is reactionary, fundamentalist, and anti-modern, while the other set is progressive, liberal, and modern.

 

  1. Does one need references to God or to its Christian heritage in the new European constitution or does Europe need a new secular “civil religion” based on Enlightenment principles?

Strictly speaking, modern constitutions do not need transcendent references nor is there much empirical evidence for the functionalist argument that the normative integration of modern differentiated societies requires some kind of “civil religion”. In principle, there are three possible ways of addressing the quarrels provoked by the wording of the Preamble to the new European Constitution. The first option would be to avoid any controversy by relinquishing altogether the very project of drafting a self-defining preamble explaining to the world the political rationale and identity of the European Union. But such an option would be self-defeating in so far as the main rationale and purpose of drafting a new European constitution appears to be an extra-legal one, namely to contribute to European social integration, to enhance a common European identity, and to remedy the deficit in democratic legitimacy[civ].

          A second alternative would be the mere enumeration of the basic common values that constitute the European “overlapping consensus”, either as self-evident truths or as a social fact, without entering into the more controversial attempt to establish the normative foundation or to trace the genealogy of those European values. This was the option chosen by the signatories of the Declaration of American Independence when they proclaimed “We Hold These Truths To Be Self-Evident”. But the strong rhetorical effect of this memorable phrase was predicated on the taken-for-granted belief in a Creator God who had endowed humans with inalienable rights, a belief shared by republican deists, Establishmentarian Protestants, and radical-pietist sectarians alike. In our post-Christian and post-modern context, it is not that simple to conjure such selfevident “truths” that require no discursive grounding. The 2000 Solemn Proclamation of the Charter of Fundamental Rights of the European Union attempts to produce a similar effect with its opening paragraph: “Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality, and solidarity.” But the proclamation of those values as a basic social fact, as the common normative framework shared by most Europeans, could hardly have the desired effect of grounding a common European political identity. It simply reiterates the already existing declarations of most national European constitutions, of the 1950 European Convention on Human Rights, and most importantly of the 1948 Universal Declaration of Human Rights of the United Nations. Without addressing explicitly the thorny question of Europe’s “spiritual and moral heritage” and its disputed role in the genesis of those supposedly “universal values”, it is unlikely that such a proclamation can have the desired effect of inscribing those values as uniquely, particularly, or simply poignantly “European”.

          The final and more responsible option would be to face the difficult and polemical task of defining through open and public debate the political identity of the new European Union: Who are we? Where do we come from? What constitutes our spiritual and moral heritage and the boundaries of our collective identities? How flexible internally and how open externally should those boundaries be? This would be under any circumstance an enormously complex task that would entail addressing and coming to terms with the many problematic and contradictory aspects of the European heritage in its intranational, inter-European, and global-colonial dimensions. But such a complex task is made the more difficult by secularist prejudices that preclude not only a critical yet honest and reflexive assessment of the Judeo-Christian heritage, but even any public official reference to such a heritage, on the grounds that any reference to religion could be divisive and counterproductive, or simply violates secular postulates.

          The purpose of my argument is not to imply that the new European constitution ought to make some reference to either some transcendent reality or to the Christian heritage, but simply to point out that the quarrels provoked by the possible incorporation of some religious referent in the constitutional text would seem to indicate that secularist assumptions turn religion into a problem, and thus preclude the possibility of dealing with religious issues in a pragmatic sensible manner.

Firstly, I fully agree with Bronislaw Geremek that any geneological reconstruction of the idea or social imaginary of Europe that makes reference to Greco-Roman antiquity and the Enlightenment while erasing any memory of the role of Medieval Christendom in the very constitution of Europe as a civilization evinces either historical ignorance or repressive amnesia[cv].

          Secondly, the inability to openly recognize Christianity as one of the constitutive components of European cultural and political identity means that a great historical opportunity may be missed to add yet a third important historical reconciliation to the already achieved reconciliation between Protestant and Catholics and between warring European nation-states, by putting an end to the old battles over Enlightenment, religion, and secularism. The perceived threat to secular identities and the biased overreaction to exclude any public reference to Christianity belies the self-serving secularist claims that only secular neutrality can guarantee individual freedoms and cultural pluralism. What the imposed silence signifies is not only the attempt to erase Christianity or any other religion from the public collective memory, but also the exclusion from the public sphere of a central component of the personal identity of many Europeans. To guarantee equal access to the European public sphere and undistorted communication, the European Union would need to become not only post-Christian but also post-secular[cvi].

          Finally, the privileging of European secular identities and secularist self-understandings in the genealogical affirmation of the common European values of human dignity, equality, freedom, and solidarity may not only impede the possibility of gaining a full understanding of the genesis of those values and their complex process of societal institutionalization and individual internalization, but also preclude a critical and reflexive self-understanding of those secular identities. David Martin and Danièle Hervieu-Léger have poignantly shown that the religious and the secular are inextricably linked throughout modern European history, that the different versions of the European

Enlightenment are inextricably linked with different versions of Christianity, and that cultural matrixes rooted in particular religious traditions and related institutional arrangements still serve to shape and encode, mostly unconsciously, diverse European secular practices[cvii]. The conscious and reflexive recognition of such a Christian encoding does not mean that one needs to accept the claims of the Pope or of any other ecclesiastical authority to be the sole guardians or legitimate administrators of the European Christian heritage. It only means to accept the right of every European, native and immigrant, to participate in the ongoing task of definition, renovation, and transmission of that heritage. Ironically, as the case of French laic etatism shows, the more secularist self-understandings attempt to repress this religious heritage from the collective conscience, the more it reproduces itself subconsciously and compulsively in public secular codes.

 

SECTION V

Majorities and minarets: religious freedom and public space

«Imagine there’s no countries;
it isn’t hard to do.
Nothing to kill or die for,
and no religion, too»

(J. Lennon, Imagine)

 «God is a concept
by which we measure
our pain »

(J. Lennon, God)

 

«My sweet Lord,

I really want to see you,

really want to show you,

that it won’t tale long, my Lord»

(G. Harrison, My sweet Lord)

 

  1. Introduction: the Swiss case

In late November 2009, as we remember, Swiss voted in a national referendum (I would like to take the Swiss case as a paradigmatic example) to ban all future construction of Islamic minarets in their country. This decision drew widespread criticism both inside and outside Switzerland. It was regarded as a significant breach of liberal principles of freedom and equality, and as evidence of a wave of Islamophobia that was sweeping across Europe[cviii]. Switzerland is unusual in the use it makes of different forms of popular referendum – this one was a ‘federal initiative’ that added a new clause to the Swiss constitution – to decide questions of law and policy that in other places are determined by representative institutions. The proposal won the approval of 57.5% of those who voted, and gained majority support in 22 out of 26 cantons. Thus it appears to present a clear case in which the will of a democratic majority came into collision with the rights of a religious minority, here the rights of Swiss Muslims to build mosques with minarets or to add minarets to existing buildings. And so it raises some fundamental questions of political philosophy: the general issue of majority will versus minority rights, but also the more specific issue of a historic nation’s right to preserve features of its cultural inheritance in the face of demands for equal treatment by incoming minorities. Thus the Swiss minarets decision raises questions for those like myself who want to defend a liberal form of nationalism. Can national self-determination and liberalism be coherently combined, or must one of these ideas give way to the other in hard cases?

          This part of paper looks closely at the issues raised by the minarets ban, exploring both the arguments that were used, or might have been used, to support it, and the arguments that were brought, or might have been brought, on the other side. It takes both sets of arguments seriously. In doing so, it sets aside the possibility that the minarets initiative was merely a pretext for certain political actors, most notably the Swiss People’s Party, to win support by riding on a wave of hostility to Islam. There is no question that the campaign for the initiative contained Islamophobic elements, not least the rather lurid poster that showed the Swiss flag festooned with black minarets looking rather like bayonets with a burka-clad women standing in front of it. Yet in politics defensible positions, whether of the right or of the left, can always be supported by individual persons for indefensible reasons, and it would be reductive to suppose that any political decision that burdens Muslims at the expense of other citizens, as this one did, must be dismissed as stemming merely from religious prejudice. In early 2013 the Swiss again voted in a referendum, this time to widespread liberal applause, on a proposal to curb executives’ pay and bonuses and to outlaw ‘golden parachutes’. No doubt some of those who supported this proposal were motivated by envy and resentment rather than principled considerations; yet this should not cause us to discount the arguments of social justice that were used to defend it.

 

  1. The rights and interests of religious minorities in the sphere of public space

The particular feature of the minarets decision that sets it apart from other measures that affect the rights and interests of religious minorities is that it concerns the character of public space. It is generally recognized that decisions that burden such groups stand in need of special justification, since they may force a religious minority to abandon some practice or mode of behaviour that they regard as central to their identity, whether this is a matter of a style of dress, the use of time set aside for religious ceremonies, or particular forms of religious expression. In many cases, it is possible to circumvent the problem by employing what has been called ‘the strategy of privatisation’ together with ‘the rule-and-exemption approach’ (which is often the solution favoured by liberals)[cix]. Typically the problem is whether to grant exemption on religious grounds to laws that otherwise are general in scope. Thus a majority might support laws that regulate animal slaughter, and the issue would be whether to give religious minorities special dispensation to kill animals in ways that produce halal or kosher meat. Or the question might be whether to allow believers to wear religious symbols in defiance of general rules that lay down a dress code for workplaces or schools. In these cases, a majority may simply legislate to impose a uniform rule on all citizens, but it also has the option of privatising the issue by granting exemptions to designated minorities who can show that complying with the rule would severely burden them by requiring them to act against their consciences or prevent them from engaging in important symbolic practices. Whether such a rule-and-exemption approach is defensible in any particular case will of course raise issues of justice and equality[cx]. But wherever we think that the balance should be struck between majority will and minority rights in such cases, the option of privatisation, where the majority agrees to do one thing but allows the minority to go its own way, is always on the table.

          This is not so, however, in cases where what is at stake is essentially some feature of public space that all parties will have to share. Here either the majority must decide on the basis of its own preferences or convictions, or it must defer to the minority. Suppose the question is what flag should fly above the city hall. While sometimes a compromise may be possible – different flags might fly on alternate days – what is not possible is for the majority view to prevail while granting an exemption to the minority. Everyone has to walk past the flag whatever design is chosen.

          The Swiss minarets decision, by virtue of its national scope and the vigorous political campaign that preceded it, was a particularly striking example of a dispute over the place of religious symbols in public space, but it reflected a wider set of arguments in European countries about the construction of mosques, their siting, architecture and so forth[cxi]. Very often proposals to build mosques have been opposed by groups of citizens who are concerned about what they see as the likely impact of the mosque on the character of the surrounding community. Some of these objections are practical, having to do with increases in traffic, for example, but in many cases the underlying concern is with the symbolic character of public space. Minarets, their shape and size, are often a major source of dispute. A minaret is seen by its opponents as a sign of cultural domination, as will shortly become apparent in the Swiss case, and resisted on that basis. As one commentator puts it, ‘the minaret appears to have become a symbol par excellence of the conflict surrounding Islam, or rather of its visibility in the public eye – even more than the hijab, for example’[cxii]. In a number of cases, resistance to a perceived threat of domination has been shown by local authorities restricting the height of minarets, sometimes ruling that they must remain lower than nearby churches or cathedrals. It is hard to make sense of this concern about the relative height of a spire unless one understands the underlying issue to be one about which culture should be given dominant expression in the architecture of public space. And this, clearly, is an issue that has to be decided one way or the other. Either the state, or the local authority, reflects the culture of the majority by privileging physical expressions of that culture and limiting the opportunities for minorities to express their religious commitments in public space, or it adopts a stance of neutrality and treats all religious (and non-religious) buildings in the same way, regulating their construction only by general safety and zoning laws, and so forth.

          In the Swiss case, the referendum on minarets came about as a result of a dispute in a small town called Wangen bei Olten in which an application by the Olten Turkish Cultural association to add a small minaret to its clubhouse met with opposition and was refused by the local building commission. Following a legal battle, the Federal Supreme Court ruled that the minaret could be built. This provoked the right-wing Swiss People’s Party to gather the 100,000 votes needed for a referendum on a federal initiative whose effect would be to amend article 72 of the Swiss constitution by adding a simple, stark clause: ‘Der Bau von Minaretten ist verboten’. The Swiss government, which was opposed to the ban, and believed on the basis of prior polling data that it would be defeated, nevertheless accepted the outcome of the referendum. Outside of Switzerland it met with widespread condemnation, not only among Muslims, but among liberal commentators, and even the Vatican, which described it as ‘a blow to religious freedom’. It was confidently predicted that the decision would be overturned through an appeal to the European Court of Human Rights, but so far at least this has not happened. Swiss Muslim groups have attempted to bring such an appeal, but their lawsuits were turned down as inadmissible on the grounds that they could not show that they were ‘victims’ in the relevant sense, since according to the court the ban had had no practical effect on their exercise of their human rights. The current position, therefore, is that no more minarets can be built on Swiss soil to add to the four that already exist.

 

  1. What arguments were offered in the course of the campaign leading up to the referendum?

The central claim of proponents of the ban was that minarets are signs of Muslim power and territorial advancement. As one put it, they should be seen as ‘spearheads of political Islamisation’[cxiii]. Another compared them to ‘the flags that generals place on strategic military maps to identify a conquered territory’[cxiv]. Allowing minarets to be built would also lead to further demands, for example for the muezzin’s call to prayer to be permitted, and for the introduction of Sharia law. It was further claimed that minarets were not essential to the practice of Islam itself. According to an initiative committee press release: ‘Millions of Muslims worldwide practice their faith in mosques without minarets. The minaret is mentioned nowhere in the Quran. It has no religious function. No Muslim is affected in his free exercise of religion if minarets are not built’.[cxv]

          Supporters of the ban rejected claims that minarets and church steeples should be treated alike, on the grounds that ‘the church tower is an expression of our Christian-western cultural inheritance’; furthermore the modern Christian church, in contrast to Islam, recognized the separation of church and state[cxvi]. The implication was that the building of a minaret was a political act in a way in which the construction of a church spire would not be. Moreover the wish to build minarets was a sign that Muslims were unwilling properly to integrate into Swiss society. Finally, a women’s group ‘against the Islamisation of Switzerland’ claimed that support for the ban meant support for rights to freedom and equality for all women living in Switzerland.

          Opponents of the ban mounted a range of arguments, including feminists within the main parties who claimed that the effect of the initiative would be to further isolate Muslim women from others in Switzerland. It was argued that minarets themselves were not the real issue; the campaign was being used as a way of stirring up hostility to Islam in general. Rather than encouraging the integration of Muslims into Swiss society, the ban would have precisely the opposite effect. Such an initiative endangered religious peace and religious tolerance, and by singling out the symbol of one particular religion for prohibition, it violated the principle of equal treatment of religions. It was further argued that existing legislation gave local authorities adequate powers to regulate all building proposals, including minarets, so imposing a blanket ban was completely unnecessary to avoid any problems that building a minaret in a particular place might pose.

          Although these substantive claims on either side formed the heart of the debate, the second-order issue of what was and was not a proper subject for democratic decision occasionally surfaced. Thus opponents of the ban argued that it was contrary to international law, and would be overturned by the European Court of Human Rights, provoking supporters to claim that the initiative itself was a beacon of Swiss sovereignty and Swiss democracy, to be contrasted with the undemocratic character of international law. After the ban was passed, questions were raised about the prerogative of the Swiss parliament to declare initiatives invalid if they violated ‘peremptory’ norms of international law. It was suggested that the federal chancellery might be better placed to perform this function instead.

          The central question of political philosophy raised by the minarets ban is whether a prohibition such as this, which restricts the public expression of one particular religion, runs counter to fundamental liberal principles. In addressing it, I want to set aside for later discussion the issue of whether a constitutional amendment covering the whole of Switzerland was an appropriate way for those opposed to minarets to pursue their objective – as opposed, for example, to more routine legislative referenda held in individual cantons[cxvii]. Here the question is where the line should be drawn between decisions that are taken by normal democratic means, and accordingly subject to revision by the same means at some later date if the political community changes its mind, and decisions that are properly constitutional in nature, i.e. intended to bind future democratic majorities by laying down principles that their decisions cannot contravene. It is one thing to say that a demos is entitled to vote to ban the building of minarets, and another to say that its decision should be or may be constitutionally entrenched. Setting this issue aside for the time being, I propose to focus on the simpler case where a democratic majority decides not to allow the building of minarets in the area under its jurisdiction, but without denigrating Muslims or restricting their freedom in other ways. It does so because it wishes the area to retain its traditional character, which includes the prominence of church spires and other features that reflect its western-Christian past. Why might such a decision be open to objection?

          There are two main grounds on which such a decision might be challenged. First, we can ask whether policies such as a minaret ban infringe the human rights of those whose religious freedom is restricted. Second, we can ask whether a restriction that applies only to the symbols or practice of one religion but not to those of others violates a liberal principle of equal treatment or neutrality[cxviii]. Of course these two approaches are not completely distinct because of the existence of a human right against discrimination. Nevertheless the focus appears to be different. In the first case we are asking about a restriction on religious freedom, and our question will be about the scope of the right of religious expression: does religious free expression extend to the right to construct religious buildings of a particular type? In the second case the question is about the equal treatment of religions, or alternatively about the grounds on which it may be justifiable to privilege one religion in particular when public space is at stake. Discriminating between religions might be objectionable even in cases where there is no basic right to the form of expression that is being discriminated against. The basis for an objection on human rights ground might begin with the charter provisions that protect religious freedom[cxix]. Thus Article 18 of the International Covenant on Civil and Political Rights contains the following clause:

  1. ‘Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching’.

          There is also, however, a rider that sets out the grounds on which this freedom can be restricted:

  1. ‘Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’.[cxx] Very similar wordings can be found in Article 9 of the European Convention on Human Rights.
  1. How might these human rights provisions apply to the minarets case?

Let me deal first with what appears to be the more straightforward issue, namely whether the reasons presented by those opposed to the building of minarets correspond to any of the limitations referred to in Article 18.3. It seems clear that they do not. Supporters of the ban point to the general social and cultural consequences that they claim would follow if minarets were permitted to be built. But they do not suggest that minarets pose a risk to public safety, order, health, or morals and it is difficult to see how even a prima facie plausible case along these lines could be made. When practical objections to minarets are raised, they refer to the possible nuisance value of these edifices to those living in the surrounding area, and especially of the risk that they might in future be used for the call to prayer. But this cannot be construed as affecting the fundamental rights and freedoms of others. Now one should note here that in practice courts, including the European Court, have allowed a wider set of considerations to limit the exercise of human rights, including the right to freedom of religion; in other words, they interpret ‘the rights and freedoms of others’ more generously such that nuisance value might qualify as a rights-violation[cxxi]. On a more rigorous interpretations of human rights (which I favour), however, it is very hard to see that one could restrict the right to build minarets by appealing to the human rights of other people.

          So the question then becomes whether a positive defence of such a right could be mounted by reference to Article 18.1 which sets out the right to freedom of religion. It is clear from the wording of the clause that the right is intended to cover more than just the right to hold religious convictions in private, or to express them in the space of one’s home. The Article refers explicitly to the manifestation of religious belief ‘in community with others’ and ‘in public’. On the other hand, it refers only to ‘worship, observance, practice and teaching’ and says nothing directly about the physical environment within which these activities are going to occur. It does not say that there is a human right to erect buildings of a distinctive type within which to carry out worship, observance, and so forth. So we are not being given explicit guidance on whether the human right will include the right to erect minarets, or more generally to construct churches, synagogues and other buildings within which to practise one religion.

          The answer to our question may, however, seem to be obvious. The freedom of religion clause is understandably general in nature, and should not be expected to descend to matters of detail such as religious buildings. But insofar as the intention of the clause is to protect the public practice of religion, by implication it also protects the creation of physical sites within which that practice is going to occur. If a church congregation is going to exist, it needs a church inside which to gather, complete with altar and so forth, and similarly for the other faiths. Such an extension of the right seems hard to deny[cxxii]. But it rests on the thought that certain physical conditions are essential to the practice of the religion. And it therefore invites us to draw a distinction between physical elements that are indeed essential, and others that are merely desirable because, for example, they enhance the experience of worshippers in aesthetic or other ways. A church altar may be essential because of the role that it plays in the Mass or Communion service, but having stained glass windows in a church should be seen simply as a desirable addition because of the way in which it creates a special type of atmosphere within the building.

          Can such a distinction be drawn, and should it be? Let me take the questions in reverse order, since if we shouldn’t draw a distinction between what’s essential to religious practice and what’s merely desirable, we won’t need to get into the intricacies of how the line should be drawn. Recall that what is at stake here is the human right to religious freedom, and specifically religious expression. We are not yet dealing with the wider question of what a liberal state should permit. Much will then depend on how one understands the purpose, and the justification, of human rights. This is a large topic, and I will assume a position that I have defended elsewhere, which is that the aim of human rights is to provide their bearers with the opportunity to lead a minimally decent life, by protecting them against threats imposed primarily by states, and by creating obligations for states and other institutions to provide the material conditions for such a life[cxxiii]. On this understanding, the content of human rights should be construed in a minimalist way, in the sense that they should be understood to require only the least demanding way of securing the relevant opportunities. If the human right to shelter can be satisfied by building either type A houses or type B houses, and type A houses are cheaper to build, then a state that builds sufficient type A houses has discharged its human rights obligations even if many people would prefer to live in houses of type B.

          Since having the opportunity for a minimally decent life does require having the right to religious worship and observance, there can be no objection, on the view I defend, to including this right in the human rights catalogue. But equally it must be understood to extend only what is essential to religious practice, the equivalent of a type A house. So we how can we tell what is essential and what is not? There are broadly two ways of approaching this question[cxxiv]. One is to regard it as a matter of individual conviction. What is essential is what any person, or any group of people, regards as essential. Debates in the U.S. about freedom of religious expression have tended to move in this direction[cxxv]. In contrast, European approaches to religious freedom, including decisions taken in the European Court, have adopted a more objective approach, applying a test of necessity to determine whether a particular activity is or is not required by the religion in question. This may involve consulting relevant texts, or obtaining expert evidence from religious leaders. This approach is open to the objection that ‘when there is disagreement between various members of a religion or belief over issues of doctrine and practice, the desire of the European Commission to find an objective and authoritative answer to whether the practice is required can lead it to decide between competing approaches, sometimes rejecting an applicant’s claim because it is outside the mainstream of his or her religion’.[cxxvi] Despite this difficulty, there are good reasons to prefer the objective approach. If someone makes a claim that some activity or feature is required by her religion, they are saying something about what an established body of religious doctrine and practice demands. Although some requirements may at a particular moment be debated within the faith, others cannot be, otherwise we do not have a religion in any recognizable sense, but simply an aggregation of individual people laying claim to the same religious designation. There can be debates about whether courts in particular are well placed to reach valid conclusions about what is or is not an essential component of religious practice[cxxvii], but there must in general be a right or wrong answer to questions of this kind.

          If we turn to the particular case of minarets, I know of no case where a court has been asked to rule on whether it is an essential feature of an Islamic mosque that it should have one. But were a court to be asked, it is likely that it would conclude that it was not essential. Relatively few mosques in European societies currently have them, and this is not just because applications to build them have been refused[cxxviii]. Historically, it appears that associating a tower with a mosque did not become widespread until the 9th century, and the building of minarets at that time had more to do with their functions as symbols of religious power than with their role in Islamic religious practice; they were not, for example, regarded as essential for broadcasting the call to prayer[cxxix]. To that extent, opponents who argue that minaret building has a symbolic purpose as an expression of power rather  than a strictly religious function appear to have a point. The Ottoman style of minaret which was caricatured in the provocative pro-ban poster has only fairly recently spread as a recognizable Islamic symbol to regions of the world in which previously mosques were built without towers[cxxx].

          So although, for Muslims, the right to religious freedom must include the right to have access to a mosque – to build one, or to convert an existing building, if necessary – the features that are essential to a mosque are those that allow collective prayer and other rituals to be performed, and a minaret does not qualify for that purpose. What a minaret does, plainly, is to signal to the wider world that the building it is attached to is a mosque, increase its visibility, and in certain cases make it easier to broadcast the call to prayer. These may all be seen as desirable features, but they fall into the same broad category as stained glass windows, or indeed church spires, which are equally not essential to Christian practice. So although minarets cannot be objected to on human rights grounds, as I argued earlier, neither can they be defended on human rights grounds. The right to religious freedom does not cover them. So the first objection to a democratic ban on minarets fails. If such a ban is wrong, it is not because it violates the human rights of Muslims.

          We should turn, therefore, to the second possible reason for objection that I outlined, namely that a ban would breach a liberal principle of equal treatment of religions, or of state neutrality. Clearly a minaret ban is directed against the practitioners of one particular religion, namely Islam. It makes no pretense of equal treatment; indeed supporters, as we have seen, argue quite openly that it is legitimate in countries like Switzerland to give favourable treatment to the historically-established religion, namely Christianity. So the issues we have to address here are whether the equality principle in question is valid, what its scope is, and whether it should be regarded as a constraint on democratic decisions over the use of public space.

 

  1. The citizens’ equality principle in a liberal state

I will take for granted without discussion here the principle that the citizens of a liberal state should receive equal treatment with respect to their rights and opportunities, and bracket off the complications that may arise when some denizens of a liberal state do not qualify for citizenship. The relevant point for what follows is that the reasons behind the principle of equal rights also require the state to treat citizens equally when it comes to providing the resources that they need to pursue their individual or collective life projects. Very often this will take the form of providing, or subsidizing the provision of, public goods. So when the state contributes towards sports grounds, or art museums, or national parks, it should do so with the general aim of giving all citizens access to goods that they value, and value to approximately the same extent overall. Specifying a formal rule that captures this intuition is quite tricky[cxxxi], but for present purposes all we need is the broad claim that a state that provides hockey pitches but not baseball grounds at public expense in a society that includes significant numbers of people wishing to play either sport is behaving unjustly, and so equally is a state that subsidizes one form of music but not another, unless it can be shown that there is a special reason (of the right kind) why the preferred form won’t survive without subsidy.

          Applying this principle to the case of religions, it appears that if there is reason to support one religion, for example by granting a church charitable status for purposes of taxation, the same must apply to all religions, again in the absence of special factors. So the equality principle holds here too. But now we encounter a difficulty. The argument for equal treatment goes through when there is no conflict involved in supplying different public goods, other than over the resources that are needed to produce the goods. So long as a local authority has sufficient space and resources, it can build a baseball stadium alongside a hockey field, and the presence of one does not detract from the value of the other. But this appears not to be the case in the disputes over public space that led to the Swiss minaret ban. Here it seems that the goods are to some extent rival. At least in the eyes of those who argued in favour of the ban, the building of a minaret in a particular location diminishes the quality of the surrounding public space for those who do not subscribe to Islam. We can see this rivalry occurring particularly clearly in cases where the dispute turns partly on the height of the proposed minaret in relation to nearby churches.

          Now it might seem absurd for people to care about whether a minaret is 55 or 65 metres high – I shall address this issue shortly. But supposing that they do, it seems that the equal treatment principle is in trouble. Either the public architecture of a particular town or city will reflect its predominantly Christian heritage, with the church spire looming over the surrounding streets, giving those who value this heritage what they want, or the erection of a minaret makes a statement about the increasing public prominence of Islam, a good presumably for local Muslims. So what could equal treatment mean here? The state might try to rid public space of all culturally laden symbols, which would presumably mean demolishing church spires and other Christian artifacts as well as banning the construction of minarets. But this would mean pursuing equality at the expense of giving any of the rival groups the public goods that it sought, a form of cultural as well as physical levelling down. A more plausible suggestion is that it should regulate public space only through the application of neutral building regulations, zoning laws, etc., and then allow the market to decide what actually gets built. It would be irrelevant whether what was being proposed was a church, a mosque or a supermarket; the only relevant considerations governing the decision would be culturally neutral factors such as safety, noise, congestion and so forth.

          The problem with this suggestion is that by disaggregating decisions about the use of space and allowing the market to rule, it denies that there is any collective interest in the way that cities, towns and villages look in general. Yet plainly this is something that people care about a great deal. They want the places they live in and are attached to look both beautiful and familiar, and this means that when new buildings are planned they should be designed to harmonize with their surroundings. So far this is just an aesthetic argument. But it shows that there is a legitimate case for subjecting what goes on in public space to democratic control[cxxxii]. People should be able to decide how tightly or loosely they want new buildings to match what already exists, and this is no doubt going to depend on the character of the status quo ante. What is acceptable in a stone-built village is going to be very different from what will work in a city landscape that is already a jumble of architectural flights of fancy. Nonetheless having public space that reflects the aesthetic preferences of the people who occupy it is a public good, and accordingly something that justifies democratic control rather than leaving everything to private initiative and the market.

          It could be said in reply here that this argument for democratic control over public space will also extend to the external aspect of private buildings, with intolerant consequences. For example, someone might wish to decorate the outside of their house in a particular way to celebrate a religious festival, and since this decoration will be visible to passers-by, it will according to the principles I am defending be potentially subject to a democratic veto. Now the design of private buildings is already governed by planning law in most jurisdictions, so the baseline here is not complete freedom to do whatever the owner wishes with her private property. The question to ask is whether a form of decoration changes the appearance of the building in a fundamental way, and this is a matter both of the scale of the change and whether it is permanent or temporary. If the change is fundamental and clearly visible to outsiders, then it falls within the scope of democratic decision. Admittedly, some judgement is involved here: one may ask whether in a particular case it is reasonable to regard what someone is doing with their private property as having a significant external impact, and it will be a feature of a tolerant society that it permits owners a good deal of freedom[cxxxiii]. A minaret, however, is by its nature both a permanent and a prominent feature of the neighbourhood it occupies, and so a proposal to build one is clearly a proper subject for democratic debate.

          The argument up to this point is essentially about the physical appearance of buildings, and what it suggests in relation to mosques and minarets is simply that they should be built in a style that harmonises with existing town – or cityscapes, that if there is a particularly fine view of the local cathedral, a minaret shouldn’t be sited just where it blocks that view, and so forth – nothing has been said so far about their religious significance. In order to produce even a prima facie case for banning minarets as Islamic symbols, we have to make the much stronger assertion that a majority is entitled to ensure that the appearance of public space reflects its own cultural values, so that where those values reflect a Christian heritage, it can insist that Christian buildings and symbols should remain hegemonic. This means explicitly setting aside the equal treatment principle. Instead the claim must be that the state is not required to remain neutral when what is at issue is the culture of the majority. What could justify this?

 

  1. What could justify the principle of the majority?

If the majority who sought to assert the pre-eminence of a particular culture were simply a randomly assembled group, it would be difficult to justify their discriminatory decisions. The claim to pre-eminence only carries weight where the majority in question is also a majority nation with deep historic roots in the territory in which the decisions are being taken. For such a group, the physical shape of the territory is likely to serve as one of the principal media through which the public culture of the group is reproduced over time. Clearly it is not the only medium: the group’s culture will also be conveyed through the practices of everyday life, through books and other cultural artefacts and so forth. But the physical environment, including the built environment, will be an important repository of culture. Indeed the nation’s claim to control the territory itself may be based on the way it has shaped the land in the service of its cultural and other needs[cxxxiv]. In a sense, then, members of the national majority come to understand their own historic identity partly by looking around at the environment they have created. When they do this, they will experience public space that is replete with cultural symbols: statues of national leaders, historic monuments, war memorials, etc. In cases where a particular religion has played the dominant role in natural life, this will extend to churches, temples, mosques and so forth. So the value that is created by preserving this heritage is the value of national identity itself. Now this value can of course be disputed. One of the major points of disagreement in contemporary political theory is between those who believe that a modern democratic state functions most effectively when its citizens share a national identity, and those who argue that in societies that are increasingly multicultural, all that is required is that citizens should subscribe to a common set of principles, or display ‘constitutional patriotism’.[cxxxv] This is not the place to engage further in this particular dispute. But it is important to see that the claim to cultural pre-eminence only rises above simple prejudice in cases where the majority culture that is being protected has evolved among people who share a national identity and have occupied the space in question for many generations, changing its appearance in ways that mirror that culture. The minority religious culture that is being denied equal treatment, on the other hand, is a relatively recent arrival. That is the context in which departures from equality may look prima facie justifiable.

          If we apply this to the minarets case, however, it might be argued that there is no real threat to the majority culture when a minaret is added to a mosque. There is no sense in which a church is demolished every time a minaret is built. If we examine the Swiss debate, we find there is dissonance between the claims made by supporters of the minaret ban, and the intentions we can reasonably attribute to those who want to build minarets. As we saw, advocates of the initiative argued that the building of minarets was a means by which Islam as a whole staked its territorial claims, akin to the flags planted by successful generals. This portrays public space as zero-sum: either it is wholly Western/Christian in character or it is wholly Islamic. Minaret builders, we may assume, would disavow any such aim. They would argue that a minaret would take its place alongside church steeples and other buildings in shared, multicultural public space. It would be hard for them to deny that a minaret serves to symbolise the arrival and in some sense the legitimacy of Islam. But they would repudiate any intention to dominate or conquer the place where it is built. So here the two sides hold conflicting views of what is at stake in the minarets dispute. Whose interpretation should we accept?

          The majority can of course impose its interpretation by voting to ban minaret construction. But for this to be even prima facie justifiable, there must be a reasonable case that its cultural heritage would be harmed by the arrival of a minaret. Such a case seems difficult to make unless the proposed minaret will indeed become the feature that dominates the surrounding space. This explains why there may legitimately be sensitivity about the relative height of the minaret compared to other buildings in the vicinity, but does not seem to justify the ban itself. Perhaps it might be argued that there is a collective action problem here: one new minaret, especially in a town or city, will not inflict cultural damage, but a series of them in finite space will change its character permanently. This, however, points towards a series of decisions on specific proposals rather than a blanket ban. I will return to this issue at the end of the paper.

 

  1. A collective action problem?

So far some authors have been asking about the reasons that might justify a national majority in voting against minaret construction; they have not yet looked at the fairness claims of the Islamic minority who may wish to build them. Muslims in Switzerland are an immigrant group, and they follow writers such as Will Kymlicka in assuming that the cultural rights of such groups are different from the rights of national minorities or indigenous peoples[cxxxvi]. I also assume that where a legitimate state exists, and has territorial rights, it is entitled to decide within certain limits on its policy for admitting immigrants, and also entitled to decide on the terms of admission so long as these are fair between the two sides[cxxxvii]. Elsewhere other authors (such as Miller, for instance), have suggested that it is helpful to think in terms of a ‘quasi-contract’ whereby immigrants who are admitted are granted a set of rights, including the opportunity to advance to full citizenship, and in return asked to accept certain obligations to integrate with the host society[cxxxviii]. These obligations have mostly to do with accepting the prevailing legal and political norms and abandoning social practices that run counter to these. But it is also a reasonable requirement that immigrants should acknowledge and adapt to the public culture of the receiving society. ‘Public culture’ here refers to those cultural features that form part of the national identity of the society in question, and this may include religion in cases where a particular religion has long played a central role in the nation’s life. What does ‘acknowledge and adapt to’ mean here? Clearly there can be no requirement that incoming groups should convert to the national religion. They have a human right to religious freedom, which as we saw earlier includes the right to associate for purposes of religious observance and the right to create buildings suitable for that purpose. Moreover, they have a claim on the basis of equal citizenship that their religious practices should be supported in the same way as other religions, for example by being given charitable status. So they must acknowledge and adapt only in the sense of recognizing that in matters of public culture, one religion may take precedence, for example where the state recognizes an established church, and allows its officials to participate in state ceremonies or other functions. My claim is not that states must recognize religion in this way, but only that they are permitted to do[cxxxix]. A state may follow the example of the U.S. and entrench an establishment clause in its constitution that requires it to observe strict religious neutrality. But equally it may follow the example of Denmark, say, and have a national church which is granted certain privileges and to which most people formally belong[cxl]. Which of these models is followed is ultimately a matter for democratic decision. So when an immigrant group enters a society whose public culture is of the second, non-neutral type, they can reasonably be expected to acknowledge the priority of one religion as a feature of national culture.

          National cultures are of course always in flux, and ideally they should be open to reshaping by democratic deliberation between all cultural groups in the relevant society. In societies that are both liberal and multicultural, one likely result of the reshaping is that the country’s historic religion will play a decreasing role in national identity, and this may eventually lead to calls for the national church to be disestablished and all religions to be treated even-handedly. Immigrant groups are certainly not debarred from taking part in this deliberation or from arguing for the equal treatment of religions in the public sphere (though in practice some may accept that the established religion should continue to enjoy de facto priority)[cxli]. So acknowledging religious precedence does not mean actively supporting it, or assuming that it will always obtain. What it does mean is recognizing that no basic injustice occurs when (with democratic support) the practices or symbols of a particular religion are awarded a special place in the public sphere.

          Critics of religious precedence, like Martha Nussbaum, argue that it unavoidably ‘subordinates’ or ‘marginalizes’ those who do not belong to the established religion; it amounts to a public declaration that they are second-class citizens[cxlii]. It is hard to take this seriously when what is involved is purely symbolic recognition, such as when it is the archbishop rather than a multi-faith committee who places the crown on the head of the incoming monarch. But the question is perhaps more serious when the issue is the character of the public space that a person has to inhabit day in and day out. Now it is of course unavoidable that an immigrant minority will arrive in public space that is already coloured by the symbols of the majority religion, assuming there is one. The cities and towns they live in will already be festooned with temples, mosques or churches as the case may be, streets will be named after saints or prophets, and so forth. This by itself cannot give grounds for complaint. The issue is whether having arrived, and wanting to make a public statement about their presence, the group is subordinated or marginalized if on cultural grounds the majority refuses its request to do so in the form of a building or other symbol[cxliii].

          Here I think the form of the refusal does make a significant difference. Recall two features of the Swiss minaret ban: it was imposed by national referendum, and it took the form of a constitutional amendment. Contrast this with a hypothetical case in which decisions on the building of minarets were taken by democratic deliberation (which in Switzerland might well culminate in local referenda) in cities or cantons. There would be two important differences. First, decisions would be taken on proposals to create towers of a specific shape and size in particular places, allowing negotiation to take place over the height of the minaret, and so forth, and also responding to the strength of local feeling about how important it was to preserve the existing character of the environment. Second, whatever decision was taken would not be set in stone; it could be reversed at some later time if the relevant local community changed its mind or its character. From the minority’s point of view, there is a difference between feeling that you have lost the argument on this occasion, and feeling that a decision has been reached that forever prevents you from returning to the table with a similar proposal. Insofar as talk of marginalization or subordination applies, it is surely to the case where a minority is barred by a constitutional rule from advancing its legitimate interests through democratic contestation.

          So the Swiss referendum decision is certainly open to criticism, quite apart from the intolerant language and imagery used by the pro-ban lobby. It is hard to think of a good reason why there should be a single constitutional rule applying throughout Switzerland to all future minarets, unless you thought that local democratic decisions were in constant danger of being overturned by a conspiracy of ultra-liberal judges (the Swiss People’s Party may have believed something like this, but on the basis of what evidence?). If there is presently a national consensus that the quality of public space will be damaged for cultural reasons by minaret building, then this would be reflected in a series of local decisions; if instead some more multicultural city like Geneva (which voted against the ban) chose to approve a minaret, it is hard to argue that the citizens of Appenzell, some 300 kilometres and many Alps away, have a significant interest in opposing it. So the constitutional ban could be opposed on democratic as well as on liberal-egalitarian grounds; a principle of subsidiarity applies here.

 

SECTION VI

Some arguments for religious exemptions

 «The life of a lamb is no less precious than that of a human being.

I find that the more defenseless a creature, the more it has the right

to be protected from man by the cruelty of other men».

(M.K. Gandhi, The words of Gandhi)

 

«When a religion claims to impose its doctrine on all humanity,

it degrades itself to tyranny and becomes a form of imperialism»

(R. Tagore)

 

  1. The 2013 ECHR Rulings

In the summer of 2010, we all remember that four cases involving religious accommodation in the UK reached the European Court of Human Rights. The four applicants – three women and one man – each claimed that they had been discriminated against by their employees on account of their religious beliefs. All four were practising Christians, and had made a long legal journey to reach the European Court, through Employment Tribunals, Employment Appeal Tribunals and the UK Court of Appeal. The four cases fall naturally into two pairs because two of them concerned the applicants’ refusal to work with homosexuals and the other two concerned women who wished to wearing a necklace with a small cross at work[cxliv].

          One of the women who wished to wear a crucifix was a 55 year old nurse named Shirley Chaplin. She had come into conflict with her employer when, in 2007, it had introduced a new uniform for its nurses which included a V-neck tunic. The cross-bearing necklace which she had worn for years underneath her old uniform was now visible for all to see. Managers at the hospital were concerned that a patient might grab the cross, injuring herself and possibly others. Chaplin told an earlier Employment Tribunal of her belief that Christians are called upon to tell others of their faith, and that the wearing of a Cross was a visible means of manifesting that calling. Moreover ‘I cannot remove my Cross without violating my faith’. The other cross and chain case concerned a woman named Nadia Eweida who worked for British Airways as a check in clerk. She too had been a victim of a change in her employer’s uniform policy. Up until 2004 her uniform had included a high-necked blouse, and she wore the cross underneath it. However, in 2004 British Airways introduced a new uniform which had an open neck and prohibited the wearing of any visible item of adornment around the neck. Initially, Ms Eweida concealed her crucifix in her clothing but she then decided to wear it openly. The result was that she was sent home without pay until such time as she complied with the policy. The case attracted media attention in the UK, and following negative publicity, British Airways changed its uniform policy in 2006 and permitted religious symbols. Ms Eweida returned to work, but took BA to an Employment Tribunal for loss of earnings.

          Gary McFarlane, the one male applicant to the ECHR, was employed as a counsellor by Relate, a well known organisation in the UK which offers relationship counselling to couples. Mr McFarlane believes that homosexuality is sinful and that he should do nothing which endorses it. Initially, he had some concerns about counselling same sex couples, but after discussion with his manager he accepted that such counselling did not involve endorsing their relationship. Yet he later confirmed to his manager that he had difficulty reconciling his religious beliefs with the sexual practices of gay and lesbian couples. Following lengthy discussions with his manager, he was dismissed in 2008 for gross misconduct.

          The final case concerned a woman named Lillian Ladele who worked as a registrar of marriages for Islington, a London local authority. In 2005, the Civil Partnerships Act came into force in the UK which gave same sex couples the right to a legally recognised union. Ms Ladele, however, believed that civil partnerships were contrary to God’s law. At first Ms Ladele was permitted to make informal arrangements with colleagues in the registry office to swap work so that she did not have to conduct any civil partnership ceremonies. But after a short time two of her colleagues complained about her refusal to carry out such duties. In 2007 Islington commenced disciplinary proceedings against her. Ms Ladele took her case to an Employment Tribunal which upheld it on the grounds that Islington had placed greater weight on the rights of gay and lesbian people than it had on Ms Ladele’s rights as a Christian. However, Islington appealed against this decision and the Employment Appeals Tribunal upheld their appeal, reversing the earlier decision.

          In January 2013, the ECHR finally reached a ruling on the four cases[cxlv]. In the two cross-wearing cases it found in favour of Nadia Eweida, the British Airways clerk, but against Shirley Chaplin, the nurse. In the two cases of alleged discrimination towards homosexuals, it found against both Gary McFarlane and Lillian Ladele.

 

  1. Preliminaries

I begin with these four cases for a number of reasons. One is that they are all recent and they all concern my own country, the UK. Another is that they all involve Christians, whereas some of the high profile religious accommodation cases on which the ECHR has been asked to intervene involved Muslim women who wished to wear Muslim religuous dress. The four cases also interests me because they all hinge on the personal convictions on the individuals concerned, albeit convictions which reflect their Christian beliefs. But nothing in Christian doctrine requires Christians to wear a cross, and a great many believing Christians do not believe that same sex relationships are sinful.

          I shall return to the four ECHR cases as we proceed, but I now want to broaden the discussion to ask, in general, how we might approach cases of religious accommodation. What values are at stake in the issues of religious accommodation above, and others like them? And what principles can we employ in attempting to resolve them? Before considering some ways of approaching those questions, I want to suggest that any answer to them must satisfy two very general conditions: it must speak to the interests of both the main parties involved, namely, those who claim an exemption, but also other citizens, whether or not they are personally involved.

          A satisfactory theory of religious exemptions needs to address the attitudes and motivations of those religiously-minded citizens who are claiming a particular exemption. It needs to engage with their attitudes and motivations so that they can be satisfied that they got a fair hearing, especially if their claim is turned down. If the values and principles used to determine their claim are ones that claimants cannot connect with – ones that do not cohere with their interpretation of the situation at hand – then claimants will have reason to feel excluded. Public discourse will not have addressed them as citizens with religious identities. Here is an example of what I mean. In the course of criticising the law mandating motorcycle crash helmets in the UK which provides for an opt-out for turban-wearing Sikhs, Brian Barry writes that ‘we all constantly impose restrictions on ourselves according to our beliefs about what is right, polite, decent and prudent’[cxlvi]. Thus on Barry’s view the fact that, absent an exemption, Sikh men do not ride motorbikes is because they have imposed a restriction on themselves; they have in fact the same opportunity to ride a motorbike as everyone else. But that is to interpret opportunity in narrowly legal terms in a way which does not speak to Sikh men’s convictions that wearing a turban is something they are called upon to do.

          At the same time, though, a theory of religious exemptions must also address citizens at large. It must be capable of moving non-believing citizens and citizens of a different faith than the exemptions claimant. One reason for this second stipulation is that third-parties must sometimes bear the costs of other people’s exemptions. Thus in the Ladele and MacFarlane cases above, their colleagues would need to be prepared to swap rotas with them in order to ensure that Ladele and MacFarlane did not encounter homosexuals in their work. But there is also a more fundamental reason why an account of religious exemptions must engage with the interests of third party citizens. This is the fact all legal exemptions represent an apparent privilege: religious exemptions are an exception to the very strong principle that all should be equal under the law as well as subject to the same law. In a just liberal regime citizens are expected to adjust their aims and aspirations so that they are achievable within the law. That is, so to speak, a standing burden which all of us face in our daily lives. Religious exemptions are an exception to that principle. It therefore needs to be demonstrated to citizens that any particular exemption is not a merely partialistic privilege. It is a necessary (though not a sufficient) condition of doing so that it addresses their outlook as democratic citizens.

          These two criteria are in some tension with each other. An account of exemptions articulated in the vocabulary of democratic citizenship is not likely to satisfy religiously minded folk, those who believe for example that salvation lies beyond the state. On the other hand, an argument for exemptions which begins from the premise that a particular religion is a true and accurate picture of the universe, will not do much to satisfy non-believers.

          In the remainder of this paper I shall consider a couple of arguments that have recently been proposed for religious exemptions, before setting out my own. In doing so I examine what might be termed the basic reason that grounds an exemptions claim, not the exceptions which might over-ride that basic reason. Thus in the Shirley Chaplin case, her basic reason was her desire to express, publicly, her Christian convictions, and judging by their verdict in the similar Nadia Eweida case, the ECHR accepted that. But that basic reason was over-ridden, for Ms Chaplin’s employer and the ECHR by the importance of patient safety. Similarly it could be argued that Sikh men have a prima facie right to wear a kirpan [ceremonial dagger], but that this right is over-ridden by the state interest in public safety. Article Nine of the European Convention on Human Rights, which enumerates the right to freedom of religious conscience says that it may be limited ‘in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others’[cxlvii].

          In examining arguments for religious exemptions, I shall also not be emphasising the distinction between a rights-based approach to the issue and approach based on equality of opportunity. The rights-based approach is the approach of the ECHR and the US Supreme Court, as well as the tradition of First Amendment jurisprudence in the United States. The equality of opportunity approach has been adopted by a number of liberal egalitarian philosophers who have defended religious accommodation, at least in some circumstances[cxlviii]. This distinction may be important for some purposes, but when fully spelled out, there seems not much difference between the claim that an individual should have the right to manifest her religious convictions and the claim that she should have the same opportunities to manifest them as everyone else.

 

 3. What is it that religious conscience protects?

One recent defence of religious exemptions is provided by Martha Nussbaum in her book, Liberty of Conscience.[cxlix]5 Nussbaum, it should be said, like the American legal scholars who have discussed religious accommodation, takes herself to be interpreting the constitutional settlement in the United States, rather than setting out a free-standing philosophical account. At the same time, however, she is concerned to articulate a case for exemptions which can convince non-believers. She writes: “From the respect we have for the person’s conscience, that faculty of inquiring and searching, it follows that we ought to respect the space required by any activity that has the general shape of searching for the ultimate meaning of life except when that search violates the rights of others or comes up against some other compelling state interest”[cl].

          Nussbaum proposes a two-part test, reflecting the structure of exemptions claims I noted above. First, we ask whether an applicant’s claim is supported by convictions about life’s ultimate meaning, or the search for it, and if it does, we then ask their whether the proposed exception to the law would over-ride the rights of others or intrude upon some compelling state interest. All of us, religious and non-religious, can understand the notion of life’s ultimate meaning, even if it is not something we give much though to most of the time, so I think in that respect Nussbaum’s view does a good job of speaking to non-believers as well as religious believers, the second of my two criteria above. But does it capture what religious believers take themselves to be doing, the first criterion? Here Nussbaum’s emphasis on inquiring and searching sits oddly with for example Shirley Chaplin’s comment that she was called upon to wear a cross at work. Or consider, Lillian Ladele’s statement in a newspaper interview that ‘I couldn’t allow myself to be sacked for something civil partnerships I knew wasn’t right… How could it be right to ask me to choose between my religion and my job?’[cli]. These testimonies seem to me to reflect the convictions of individuals who had, what was for them, a compelling answer to the question of life’s meaning, not those who were in search of answers. Of course, Nussbaum could amend her interpretation of conscience to reflect these individuals’ settled convictions, but she could then no longer appeal to individuals’ faculty of inquiring and searching, and it is that secures which her view against the objection that is religiously sectarian.

          Leaving that problem aside, a second issue with Nussbaum’s emphasis on life’s ultimate meaning is that it seems very broad. For a great many things concern life’s ultimate meaning. Consider for example a person who requested extra holiday from her employer because she wanted to go trekking though the Amazonian rainforest. This person might believe that life’s ultimate meaning involved respect for nature and its diversity; and she might have just as much sincerity and conviction about that as religious people have towards their own faith commitments. Or consider a man who requested that he be moved from a full-time to a part-time contract in order that he spend more time with his children. Many people do indeed regard having children as one of the most meaningful things they do with their lives, but it’s likely that this man would receive short shrift from his employer. A defender of Nussbaum’s approach might reply that environmental commitment or child-raising are meaningful, but they do not concern ultimate meaning. But that seems an arbitrary distinction; who is to tell an individual what is ultimately meaningful for him or her? Of course, Nussbaum could also tighten her argument by stipulating that ultimate meaning concerns religion or spirituality more generally. But then her argument would no longer convince the irreligious.

          An account of religious accommodation with some similarities to Nussbaum’s has been provided by Paul Bou-Habib who, like her, is concerned to avoid charges of sectarianism[clii]. His argument hinges on the basic good of integrity which he interprets as the good of expressing fidelity to one’s values and principles. Recognising however that people reasonably disagree about what values and principles are important, Bou-Habib stresses that it is subjective identification which counts. More specifically, the basic good of integrity is the good of being able to live in accordance with one’s perceived duties, whatever those duties are. In defence of this view, Bou-Habib asks us to think of two people’s lives which are identical in all respects except that the former person fulfilled his perceived duties and the latter did not. We would, he suggests, unanimously prefer the former person’s life. He also asks us to imagine two Muslims, who lived the same kinds of lives, except that one realised his life long ambition to go to Mecca and the other did not. This shows, he suggests, that integrity is a basic good. He gives the example of a case that went to the US case, City of Bourne v. Flores, where the Supreme Court was asked to decide whether a Catholic church wanted to expand its walls in order to make room for a growing congregation in contravention of a local building ordinance. Accommodating the congregations’ desire to increase the size of their church better enabled them to meet their perceived duties while acceding to the desire of a resident to add an extension to his house would not[cliii].

          Bou-Habib’s argument is in some ways an advance on Nussbaum’s because fulfilling one’s perceived duties seems to better grasp what motivates exemptions claimants and yet non-religious people can equally understand what integrity involves. At the same time, though, it seems to be suffer from some of the same difficulties as Nussbaum’s ultimate meaning argument. Thus both the environmental activist and the frustrated father might both regard themselves as striving to meet their perceived duties; for the activist, especially, integrity might well capture what it is that fuels her desire to go to South America. Thus, insofar as we would not countenance these two accommodations claims, integrity seems too broad a concept. At the same time, though, integrity seems to narrow to be a basic good. To see this, consider another version of Bou-Habib’s thought experiment where we consider, not two more or less similar lives, but two quite different ones, one of which displays the virtue of integrity while the other does not. Imagine for example, Jill who lives a pedestrian, dutiful life and values doing so. She is a loving wife and mother, a diligent employee and a regular churchgoer. By contrast, James is an adventurer and thrill seeker whose life is tumultuous and eventful. He’s had several relationships, but is a serial philanderer, he’s worked as a ski instructor, a deep sea diver and a circus trapeze artist, but he’s also been sacked several times because he keep letting his colleagues down. Some of us might prefer Jill’s life to James’s, but perhaps not all of us.

          Reflecting on what she has done and what she has failed to do at the end of her life, a person may just as likely regret the opportunities she did not take as her failure to meet her duties to others. So it seems to me that Jill’s life is not obviously better, not better enough to make integrity, as the fulfilment of felt duties, a basic good. Of course, Bou-Habib doesn’t need to maintain that Jill’s life is better all things considered to James’s. He only needs to maintain that it is better in respect of its enjoying more integrity. But that then raises the question of why integrity, and not some other good, is the basic one. Thus James might argue that his life has been more autonomous than Jill’s or has been more authentic, for he has lived out his convictions, and both autonomy and authenticity are candidates for basic goods.

 

  1. Religious accommodation, unconscionability and self-respect

In what follows I want to interpret freedom of religious conscience in a slightly different way, as the public expression of a person’s commitments to certain standards and principles. On this view, the religious person strives to live up to her ideals in her decisions and actions, and not to compromise them in the face of pressures to do so. The person who does something she regards as unconscionable, on my interpretation, has degraded or debased herself because she has failed to meet her own moral standards. That is the basic reason, I believe, why we should accede at least some of the time to exemptions claims, though as I said that reason may be over-ridden by yet more powerful moral or other considerations.

          On this view, living a religiously observant life is not just about living an authentic or meaningful life but also about living a dignified and worthy one. I stress this interpretation because it connects with a view of self-respect that has been proposed by Thomas Hill Jnr. among others where self-respect consists just in maintaining one’s commitments and standards, and where failing to meet them will likely occasion a loss of self-respect. This idea of self-respect involves a notion of fidelity to one’s own ideals in contrast to the self-respect we have just because we are persons, and autonomous not servile. Hill’s discussion includes a series of vignettes of individuals who make slightly inexplicable choices that degrade themselves in some way (such as the aspiring actress who turns to prostitution to support herself). But it need not be a personal choice or instance of akrasia, which diminishes a person’s self-respect but also the actions of third parties who force her to do something which compromises her standards or impose high costs if she does not comply with a rule or law. It is in that context that we can employ this notion of self-respect as an argument for exemptions. A law which imposes a high cost on a person doing something which betrays her standards harms her because sets back her self-respect, self-respect which consists just in maintaining those standards. For reasons with which she cannot identify and does not endorse, the law asks her to do something which would normally be beyond the pale and out of the question. It is unconscionable not because it causes an individual to be estranged from her philosophical or metaphysical values (though it may do that), but because it leaves her estranged from herself, as a person for whom alienation from those commitments is a very personal loss. The potential attack on self-respect is an ever-present existential threat[cliv]. The case for an exemption, then, is in preserving the conditions under which a person can live by those standards she has set herself. What seems like an opt-out is in fact a way of maintaining the sources of self-respect to which all persons have an entitlement.

          Some further points are worth making about the notion of self-respect which underlies this argument. First, the notion of self-respect involved is not an exclusively psychological notion, but is also a moral one. My claim is that individuals asked to do or refrain from doing something they regard as unconscionable or beyond the pale have reason to regard their self-respect as damaged, not that they actually do. Some people are more existentially robust than others and may be able to maintain their own personal standards in the face of social pressures; moreover they are multiple bases of self-respect so that person who feels he has debased himself may be able to maintain his psychological sense of self-respect from other sources. Second, my claim is not that securing the bases of each person’s self-respect involves a public endorsement of their personal values and standards, which is plainly impossible given the fact of pluralism, but the more modest negative claim that no person should be put in a position where she is forced to undermine her own values and standards because that is a fairly direct assault on her self-respect. I assume that citizens enjoy multiple bases of positive self-respect beyond simply the law. Third, talk of the social bases of self-respect recalls John Rawls’s claim that self-respect is perhaps the most important primary good, so perhaps there is a Rawlsian route for the argument I have outlined[clv]. Perhaps, but Rawls sees self-respect in relatively narrow terms as underwritten by a just liberal constitution whereas my argument is that self-respect arises from the interdiction between law and citizens’ own moral standards.

          As Thomas Hill points out, there is ‘a way in which a person can respect himself quite aside from appreciating his rights’[clvi]. The basis of self-respect I am stressing is the ability to express one’s own moral standards in the public realm where one is called to account by one’s fellow citizens. Of course, self-respecting individuals do not debase themselves in private either, but exemptions claims invariably involve individuals non-private roles, principally as employees, but also as schoolchildren, transport users and so on. Both Shirley Chaplin and Nadia Eweida, for example, were concerned publicly to be able to express their Christian commitments by wearing a cross at work, in view of those with whom they interacted. Both of them refused their employer’s suggestion that they wear their crosses underneath their uniforms. I interpret this as their wanting to stand up and be counted as Christians. The fact that wearing a cross is not required by Christian doctrine is not relevant to our judgement on these cases; what matters is the personal standards of those involved, standards that are informed but not dictated by wider religious doctrine.

          The same appeal to moral standards may be used in the Ladele and McFarlane too. We may think that Ladele’s and McFarlane’s belief that homosexual relations are a sin against God to be mistaken. But there can be no doubt that both of them held that belief strongly and sincerely, enough that in both cases they lost their jobs as a result. Hence in both their cases we can appeal to the same argument that individuals should not be asked to do things which falls below their personal standards, compatible with their sense of self-respect. But as I said, that only establishes a presumptive case for religious accommodation which may be over-ridden by other normative considerations, in this case perhaps the principle that those acting in an official capacity should treat those to whom they supply goods and services without discrimination. Moreover, if we did grant individuals such as Ladele and McFarlane an exemption so that they did not have to deal with same sex couples, then that sends a message to those couples that the law does not respect them because it accommodates the views of those who believe that same sex relationships are immoral. That message arguably diminishes the self-respect of same sex couples.

          That we can employ the self-respect argument in the four recent ECHR cases I hope suffices to establish that it addresses the attitudes and motivations of religiously-minded citizens, that it can speak to them as citizens with strong convictions. That was one of the two criteria I outlined earlier that an account of religious accommodation needs to meet. The other criterion was that it addressed non-religious citizens, and those who had divergent religious beliefs from those claiming an exemption. I think that it speaks to them too because the notion of having personal standards which we strive not to fall below (consistent with maintaining our self-respect) seems a pretty much universal feature of persons as moral agents. Hence we often regard as unprincipled or weak willed the person who betrays her own standards for no good reason – the vegetarian who opts for the hamburger in a restaurant – even if there are no setbacks for third parties. That the argument I’ve outlined applies not just to religiously minded individuals can be illustrated by one recent and intriguing legal case from the UK. This concerned a man named Tim Nicholson who worked for a large London property firm as head of sustainability[clvii]. Mr Nicholson was an environmental activist who had become increasingly frustrated at the way his firm ignored environmental concerns even though it was his job remit to promote them. The final straw was when a senior manager we went on a business trip abroad but left his mobile phone behind in his office by mistake. So vital was the phone to his work that he asked another employee to collect his mobile phone from his office, take a plane trip and give it to him in another country. Nicholson refused on the grounds that this was a frivolous reason to take a flight in view of the carbon emissions which flying causes. Nicholson was dismissed by his firm but later leave to appeal by a judge who regarded his environmental convictions as sufficiently strongly and sincerely held that they were relevantly analogous to religious ones. I interpret Nicholson’s predicament as a choice between keeping his job and maintaining his environmental convictions.

          I have spoken so far of people who were required to do or not do certain things, in every case by their employer, but this does not in fact adequately characterise every exemptions claim. In the UK for example, Sikh men enjoy an exemption from the law which mandates the wearing of motorcycle helmets on the grounds that that they cannot wear their turban and a helmet at the same time. Turbans for Sikh men, unlike crosses for Christians, are mandatory part of their religion. But there is nothing which forces or requires a turban-wearing Sikh man to ride a motorbike. I assume that not all states have this exemption for Sikhs. If they do not wish to betray their own principles in those states which do not have an opt out then Sikh men can simply choose not to ride a motorbike. This is not to claim, with Brian Barry, that, absent an exemption, Sikh men have the same opportunity to ride a motorbike as everyone else. It is simply to point out that, unlike the employment related cases I’ve been discussing, there is no requirement for anyone, Sikh or non-Sikh, to ride a motorbike. On this view, Sikh men can retain their self-respect by not riding a motorbike.

          However, in assessing exemptions claims I think we need to ask not just whether a person is required to do something, but also how far the activity they are not able to engage in absent an exemption is common or important. Thus in a society in which motorbikes were a more common means of transport than cars, we might consider an exemption from the helmet-wearing requirement for Sikhs more favourably than we would in our own society where riding a motorbike is a minority pastime. Or consider the exemption which Jews and Muslims in the UK enjoy from animal welfare legislation so that they may slaughter animals according to kosher or halal stipulations. The fact that eating beef or lamb is a very common activity helps strengthen the case for an exemption. The case for an exemption in order to participate in a common social activity criteria may seem quite different from the argument I’ve been pursuing so far that exemptions may be justified so that individuals are not required to do things which fall below their own moral standards, but I don’t think that this in fact the case All exemptions claimants face a choice about whether to adapt their behaviour in order to comply with the law or whether not to participate in an activity which beings them into contradiction with that law.[clviii] All four of the exemptions claimants whose cases were recently decided by the ECHR could have resigned their jobs or could have set aside their strong desire to manifest their religious beliefs in order to continue with their jobs. That is analogous to the Sikh man who must decide either not to ride a motorbike or, if there is no exemption for turbans, to wear a crash helmet instead of a turban. The main difference is that most of the time jobs-related exemptions claimants are already in work, and it is in general harder to give up something beneficial, such as paid employment, than not to undertake some activity which one values.

          The Sikh motorbike case brings out a further complicating factor to our investigation of exemptions which is that, unlike the four ECHR cases, sometimes a person voluntary chooses to interdict with a law which they then claim is unfair. An example of this is the 2006 case of Begum v. Denbigh High School where a fourteen year old Muslim girl named Shabina Begum suddenly decided that she wished to wear the Muslim jilbab [a loose fitting outer-garment that covers the body] to school in contravention of its uniform policy[clix]. She had attended the school for two years without doing so and without complaint. (The judges who decided the case took into account the fact that that policy had been arrived at after extensive consultation with local mosques, and that Shabina Begum could have attended two other local schools where the jilbab would have been allowed).

          A case with some similarities arose in 2007 when a nineteen year old Muslim, Bushar Noah, claimed indirect discrimination when a hair salon refused to employ her because she wore a headscarf[clx]. The manager explained that, in a hairdresser, it was important that customers could see their hairdresser’s own hair. This is quite different from the case of Lillian Ladele, for example, who could not have anticipated that she would be asked to register civil partnerships when she first assumed employment as a registrar. In general, the fact that a person has chosen to come into contact with a law weakens their case for an exemption. Thus in my view the fact that Sikh man can choose whether or not to ride a motorbike, together with the fact that riding a motorbike in the UK is a minority pastime, weakens their case for an exemption.

 

  1. Does liberalism demand strict separation between state and religion?

Until now, there has been no direct and extensive engagement with the category of religion from liberal political philosophy[clxi]. Over the last thirty years or so, liberals have tended to analyze religion under proximate categories such as ‘conceptions of the good’ (in debates about neutrality) or ‘culture’ (in debates about multiculturalism)[clxii]. US constitutional lawyers and French political theorists both tackled the category of religion head-on (under First Amendment jurisprudence and the political tradition of laïcité, respectively) but neither of these specialized national discourses found their way into mainstream liberal political philosophy.

          This is somewhat paradoxical because key liberal notions (state sovereignty, toleration, individual freedom, the rights of conscience, public reason) were elaborated as a response to 17th Century European Wars of Religion, and the fundamental structure of liberalism is rooted in the western experience of politico-religious conflict. So a reappraisal of this tradition – and of its validity in the light of contemporary challenges – is well overdue[clxiii].

          Should the liberal state be secular? The issue is not merely a theoretical one. Most western states are secular states, even as they accommodate various forms of religious establishment and accommodation. Yet the great majority of people in the world live under regimes that are either constitutional theocracies – where religion is formally enshrined in the state – or where religious affiliation is a pillar of collective political identity. In countries otherwise as different as Egypt, Israel, Turkey, India, Indonesia, Poland, and many others, politics and religion are interconnected in ways that belie any simplified model of secular separation. Many such states, for example, appeal to religious tradition in making the law, provide material and symbolic advantages to members of the majority religion, and enforce conservative laws in matters of sexuality and the family. Are they ipso facto in breach of liberal legitimacy? Is there a minimal secularism – or separation between state and religion – that is required by liberal legitimacy?

          In her book Liberalism’s religion, the author (Cécile Laborde), argues that there is. Secularism, however, is a more complex political ideal than is commonly realised. I disaggregate the different strands of secularism, and I show how they relate to different dimensions of what we (in the West) have come to call religion. Instead of asking the question, can secularism travel? – which invites answers measuring how well non-western countries fare in relation to a presumed model of western secularism – I start from liberal democratic ideals and assume that they are not ethnocentric: human rights, freedom, equality and democracy are universal aspirations. I then ask how much, and what kind of, state separation from religion is required to secure these ideals. In brief, I extract the minimal secular core of liberal democracy[clxiv].

          This allows us to see that it is a mistake to assume that liberal democracy requires a strict separation of state and religion on the French[clxv] or US model. There is a broader range of permissible secularisms. There are the four liberal-democratic ideals that underpin and justify minimal secularism: the justifiable state, the inclusive state, the limited state and the democratic state. Each picks out a different feature of religion: religion as non-cessible; religion as vulnerable; religion as comprehensive; and religion as theocratic. Let me analyse these in turn.

          The justifiable state draws on the idea that state officials should only justify their actions by appeal to public, accessible reasons. In the theory of minimal secularism, only officials are under an obligation to provide public reasons: secularism is a constraint on state action and justification, not a duty on the part of citizens. State officials should not appeal to the authority of sacred doctrines or to personal revelation to justify the legal coercion of all citizens. Accessibility articulates what citizens need to share, in particular societies, in order for public deliberation about the reasons for laws to be possible at all. Importantly, it is not the case that only religious ideas are inaccessible, nor is it the case that all religious ideas are inaccessible. The accessibility condition, then, does not rule out the public presence of religion.

          The inclusive state draws on the idea that the state should not associate itself with one religious identity, lest it deny equal civic status to dissenters and non-members. Merely symbolic establishment is wrong if – but only if – it infringes on equal citizenship. The dimension of religion that this picks out is different from the previous one: here religion has nothing to do with personal revelation or inaccessible belief or doctrines. It is, rather, structurally similar to other politically divisive or vulnerable identities, such as race, and sometimes culture or ethnic identity. A liberal state must not be a Christian state or a Muslim state when such identities are – as they are in many states today – factors of political salience and vulnerability. But in societies where religion is not a socially divisive, vulnerable identity, there is less ground for secular separation.

          The limited state draws on the idea that a liberal state should not enforce a comprehensive ethics of life on its citizens. The dimension of religion that this liberal value picks out is that of religion ascomprehensive personal ethics that covers education, sexuality, eating codes, work, dress, and so forth. Many liberal rights were products of hard-won struggles, against the authority of traditional religious authorities, to construct and preserve a sphere of individual liberty. Consider the range of liberal laws in the 19th and 20th centuries such as laws about marriage and divorce, women’s rights, and sexuality, and contemporary conflicts about abortion and gay rights in Africa and South and North America. Yet not all religion is about comprehensive personal ethics. Religious traditions also provide collective norms of coordination and cooperation (eg. holidays) which raise less acute threats to individual liberty[clxvi].

          Finally, a democratic state is necessary because citizens profoundly disagree about the boundary between personal and collective ethics, the public and the private, the right and the good. John Locke[clxvii] argued that the state should deal with ‘civil’ interests, and leave ‘spiritual’ matters of the salvation of the soul to individuals in their private lives. But who is to decide what pertains to the civil, and what pertains to the spiritual? In the areas of church autonomy and anti-discrimination laws, the nature of personhood, the family, marriage, bio-ethics and education, general liberal principles do not generate uniquely determinate and conclusive solutions. In such conflicts, the democratic state – not competing authorities such as churches – has final sovereign authority. It decides where the boundary between the this-worldly and the other-worldly, the religious and the secular, lies. This, I argue, is what is radical about liberalism’s secularism: that it is democratic – that it locates its legitimacy in the will of the people, not in extra-political, divinely ordained or philosophically grounded authority.

          The most radical challenge to religion posed by liberalism is not, therefore, that liberalism maintains a wall of separation between state and religion. It is, rather, that it assumes democratic sovereignty[clxviii]. Within the bounds of basic liberal legitimacy and human rights, deep reasonable disagreements are to be solved democratically (democracy is, of course, not to be equated with majoritarian tyranny, and must provide for minority representation, separation of powers, and judicial review). This democratic conception of liberal legitimacy allows for more variation in permissible state-religion arrangements than both secular liberals and religiously minded liberals have assumed. Just as secularized majorities can impose their own conception of the boundary between state and religion, so can religious majorities, provided they honour the other three liberal principles of accessible justification, civic inclusiveness and individual liberty.

          In secularized societies, state law will naturally reflect and promote the non-religious ethics of the majority, for example via the dismantling of structures of traditional family and marriage and the expanding reach of norms of human rights and non-discrimination. Likewise, in societies where religious citizens are a majority, they can shape the public sphere of their societies to some extent. But only to some extent: religious majorities can shape the state within the constraints of what Laborde, in particular, has called minimal liberal secularism[clxix]. Beyond that, minimal secularism has no ambition of providing final substantive answers to key questions of political, public, private and sexual morality.

 

SECTION VII

Do emotions play a vital role in all political processes?

 «I am not here to think, but to be, feel, live!»

J. G. Herder, Sämtliche Werke (1877-1913)[clxx]

 

  1. The case of the Greek bailout

To a large extent emotions have been instrumental in determining outcomes in the recent and on-going struggle between Greece and Germany as regards to the terms of the Greek bailout. Both at the level of policy-making and at the level of ordinary citizens strong emotions, mainly of sympathy and fear, have calcified the positions of all players, so as to make the attainment of a compromise popular with all parties difficult, if not impossible to attain. Even the terms used to refer to the Greek situation “Grexit” and “A-Greekment”, the latter coined by the president of the European Council, carry an emotional charge because they point to the singularity of the situation.

          On one side, the Greeks appealed to feelings of sympathy in their creditors when demanding debt relief and an abatement of the proposed austerity measures. They wanted to continue their membership in the Eurozone, but also to retain their way of life, which they understood as tantamount to preserving their national sovereignty and identity. The Greeks were hopeful that others would accept and empathize with that need. On the other side, again based on feelings of sympathy, the Germans insisted that it was not fair to other European member-states and to German taxpayers to offer such favorable financial terms to the Greeks. And, the German policy-makers reminded of the dream of an ever-increasing federalization of a European Union that is to operate by terms fair to all.

          Confrontations quickly ensued because of these divergent visions, which replaced feelings of intergroup sympathy with intragroup sympathy and with fears and mistrust. First, there was the personal confrontation between the leather-jacket clad finance minister of Greece, Yanis Varoufakis, and his counterpart – Germany’s Wolfgang Schäuble. Their relationship was marked by offensive language and much posturing, especially by the former, which when reflected in media increased mistrust and hostility between the ordinary citizens of the two nations. On the party level, the Greek Syriza had demonstrated an anti-EU bent from its sole beginning, and its election to power in January of 2015 with a majority short of 2 seats in Parliament showed the collective anti-EU sentiments of Greeks. The referendum held on July 5th of 2015 that garnered more than 60% OXI votes clearly confirmed that anti-European sentiments had not changed. All of this strengthened German fears and mistrust of Greek policy-makers and they saw the latter as intransigent and intentional in stoking anti-European feelings.

          The hotbed of negative emotions experienced by the Germans precipitated the imposition of harsher austerity measures upon the Greek government. It is true that the Greeks feared the measures, but they also wanted to stay on the euro and that to a large degree determined the government’s acceptance of the terms of the bailout package. Even though for awhile Greece’s solvency has been ensured, ordinary Greeks remain generally pessimistic about the future and do not believe that the required reforms will bring about improvement of life conditions. Actually, opinion polls show that most Greeks consider that their children will have worse lives than their own.[clxxi]

          The struggle that has unfolded between Greece and Germany reminds of the David and Goliath story, but unlike it the small Balkan country has not successfully used the means at its disposal – stirring up and managing the necessary emotions, so that the behemoth yields to its demands. The relationship remains highly volatile and internal and external tensions can escalate quickly because of the existing negative emotions.

 

  1. Emotions: a necessary ingredient of the political process

As the case with the settling on the terms of the Greek bailout package shows, emotions suffuse many aspects of the political process and can often lead to bad political choices. Impulsive, changeable, subject to biases are just a few of the negative labels used for describing emotional decision-making and behavior. Because of their power to sway reasoning, two theoretical schools – that of rationalism and rational choice theory – maintain that reason-based argumentation should be primary in the political process and that, if not entirely eliminated, all assertions based in the emotions should be subjugated to it. However, recent neuroscience findings demonstrate that rationality is interwoven with the emotions and the latter cannot be sequestered from the political realm. Because reasoning and the emotions always act jointly, any irrational behavior or choices are caused by the two of them, and emotions are wrongly labeled as the sole culprit.

          This intertwining and the fact that emotions are context-dependent makes the crafting of a precise definition of individual and collective emotions and isolating their main types difficult. What is certain on the individual level is that experiencing an emotion always has physical manifestations and carries an impetus for action. On the collective level, it can be ascertained that specific emotions are prevalent for a given social group at a given time, the so-called emotional habitus, even though how precisely one experiences them varies greatly among individuals. Because of this sharedness emotions can be stirred-up, whether top-down or bottom-up, and directed to attain two primary goals in the political process. Firstly, emotions could be addressed to engendering and sustaining a strong commitment to worthy projects that require long-term effort and sacrifice and giving up one’s self-interest in the name of the common good. A second objective for the cultivation of public emotion is to keep at bay negative forces that lurk in all societies.[clxxii]

          This research has isolated nine major ways, in which emotions impact the political process and through which they could be used for attaining the two primary goals. Even though, all societies harbor a variety of intense emotions, this paper will explain the nine ways within a particular normative conception – that of political liberalism[clxxiii] put forward by John Rawls in A Theory of Justice (1971) and Political Liberalism (1993).[clxxiv] The fact that emotions cannot be sequestered from the political process and entirely subjugated to reason demands understanding their proper role in policy-making because this will lead to its improved management, especially when aiming at the consolidation and strengthening of political liberalism.

 

  1. Rationalism and rational choice theory

Currently, rationalism and rational choice theory are the two dominant tropes for explaining moral decision-making on both a theoretical and practical level. Even though the two are quite dissimilar in their nature, they are both theoretical approaches that elevate reason as the primary guide and motivating factor for human decisions and actions. Reason assumes preeminence because reason-based decision-making relies on a methodology similar to the one of the natural sciences. Reasons are logical and coherent in supporting a course of action because they draw on provable facts – thus, reasons are impartial, consistent across different situations, and can be understood by all people “armed with adequate powers of observation and logical thinking”.[clxxv] As a result, reasonbased decision-making provides grounds for judgment that lead to truthful conclusions.

          Rationalism and rational choice theory do not entirely exclude emotions and other nonrational and irrational factors from moral decision-making, but take them into consideration only if they are wrapped within a rational justification. This account of decision-making and policy-formation has found wide application both in real-life policymaking and in scholarly theorizing. An example of the former is Cass Sunstein’s and Timur Kuran’s description of availability cascades. Briefly, an availability cascade is the public salience of an idea as a result of a chain reaction that has given the idea greater plausibility because of its increasing presence in public discourse.[clxxvi]

However, such availability cascades often lead to biased and not well-considered reactions from policymakers as they are under public pressure. Sunstein and Kuran argue that policy-makers need to be isolated from such pressures, so that they impartially and rationally weigh the costs and benefits for a given course of action based on the number of lives saved and the financial impact on the economy. Other such examples abound. In terms of scholarly work, the paradigmatic account of reason-based decision-making for selecting proper public policies is John Rawls’ justice-as-fairness.[clxxvii] Actually, Rawls’ theory commingles rational choice theory and rationalism because the former utility-maximization postulates are central for citizens’ choices in the original position, whereas rationalism guides citizens’ subsequent lives.

          Similar theoretical descriptions of public discourse as inherently rationalist can be found in the works of many other major moral and political philosophers from the entire ideological spectrum – on the left are Max Horkheimer and Theodor Adorno; in the liberal center – Isaiah Berlin and Ernst Cassirer; and on the right: Michael Oakeshott and Alasdair MacIntyre. Altogether, these constitute just a few illustrations of the ways, in which rational choice theory and the rationalist paradigm more broadly have found wide application in informing both theory and practice-based approaches for policy formation during the everyday work of government and in times of political change.

 

  1. About the nature of the emotions

Yet, sheer observation of the political process and neuroscience experiments from the 1990s onwards have conclusively shown that these two accounts have deficiencies because the reason-emotion opposition is scientifically unsustainable. Reason and the emotions are inextricably linked, and reason is not always able to gain control of the justification process or assert the course it suggests as the correct or necessary one. New imaging techniques such as functional magnetic resonance imaging, positron emission photography scans and different electrophysiological methods have yielded much insight into how the brain’s reasoning and emotional capacities operate jointly.[clxxviii] One of the most recent trends in brain imaging is optogenetics, a technology that renders individual brain cells photosensitive and later activates them with flashes of light – this technology has been successfully used in alleviating acute psychological conditions, which implicate both one’s reasoning and emotional capacities.[clxxix] In addition to the newly developed technical tools, a whole slew of authors have employed various scientific experiments to study human decision-making, and the role of reason and emotions in it. The heuristics and biases approach put forward by Daniel Kahneman and Amos Tversky is the paradigmatic such account.[clxxx] It divides human decision-making into two systems: the automatic, System 1, and the reflective, System 2. System 1 is the primary way, in which one perceives the world; it operates automatically and quickly, with no sense of voluntary control. Emotions belong here and assume primacy in how one apprehends the world, while System 2 encompasses reason and takes over in longer and harder decisionmaking.

          Even though based on reason, System 2 is mostly an apologist rather than a critic of the conclusions derived through System 1 according to the two authors. And it is prone to support the many biases and heuristics, mostly emotion based, which are part of System 1. An example of such heuristics provided in chapter 14 entitled “Tom W’s Specialty” shows how stereotyping governs all immediate assessments of a situation. Many other such examples exist. The System 1- System 2 model with its relegation of emotions to the former and reason to the latter has come under much criticism, but again what the various experiments employed in its defense have come to prove is that human decision-making is seldom entirely rational. Emotions are helpful in explaining not only human biases and heuristics, but a variety of other behaviors such as deriving pleasure from self-sacrifice in the name of the common good, feeling happiness related to gift giving, friendship and love; feeling internally conflicted when deciding between shortand long-term goals; inconsistency in behavior, and many others. Still, human decisionmakers are not passions’ slaves, as stated in Hume’s famous dictum[clxxxi], but rational and emotional creatures that have to rely on their two inseparable and unimpeded natures in decision-making. These insights about individual decision-making should be extended to the state and its policy process, especially when successful policy formation is the goal.

          So what is an emotion after all? Besides the general agreement that emotions have developed over time to aid in human survival, as postulated by Darwin awhile ago[clxxxii], there is no current consensus on the precise definition of the nature of emotions. The scholarly debate falls roughly into two groups. On one side are scholars, who emphasize their physical embodiment – features such as qualitative feel, physiological arousal, physiological expression, valence, and action tendencies – and on the other, scholars who focus on elements such as cognitive antecedents and intentional objects.[clxxxiii] One of the foundational theories in the first group was created independently by William James and Carl G. Lange.[clxxxiv] It postulates that emotions are the result of changes in one’s physiological state related to the automatic and motor functions of the body.[clxxxv]

However, these views have been criticized because it is difficult to distinguish between the physical manifestations of emotions – some of the same manifestations appear connected to different emotions. On the other hand, one of the most influential accounts among the second group of scholars was put forward by Richard Lazarus, who explained emotions in an opposite manner to the James-Lange account.[clxxxvi] He argued that emotions have “cognitive intentionality” – one must first cognitively assess the inhabited situation, which triggers the emotion and its accompanying physical manifestations, and finally, the individual acts on the thus obtained information. Also, reason controls the quality and intensity of the experienced emotions. However, this view has merited criticism because it cannot be established that reason takes precedence in decision-making. In-between these two theoretical approaches, many other propositions about the definition of emotions exist, but there is little agreement between the two groups and also within the groups. Hence, it remains for neuroscience with its precise methodology to put forward a definition for the emotions out of the morass of conflicting propositions.

          Yet, up to this point it has offered little conclusive insight. What has been determined for certain is that, firstly, emotions consist of both rational and emotional elements. Whether they are irrational or rational depends on the situation and on how the non-cognitive and cognitive elements they encompass are aligned with attaining its objective. What sets emotions apart from reason, however, is their physicality and the fact that they carry an impulse to action. As Hume argues, when all the pros and cons regarding a given course of action have been weighted, it is an emotional response that stirs the individual to action.[clxxxvii] But, little can be said about the precise characterizations of emotions. Emotions vary with situations, time periods, cultures and all that scholars can offer in terms of explanation is an approximation. As Jon Elster suggests: characterizing an emotion is best accomplished through mechanisms – “frequently occurring and easily recognizable causal patterns that are triggered under generally unknown conditions or with indeterminate consequences”.[clxxxviii]

          In other words, if one is afraid from a barking dog in a dark street, one can strike the dog, take flight or remain in position. It is unclear and uncertain which of the three responses would follow the fear, but most likely one of them will be the outcome. Even though it is only an approximation and not a precise definition that can be offered for emotions at the present moment and even though emotions cannot serve as a tool with which to predict events and actions with certainty, understanding the approximation offers invaluable information about the political process.

          Because of this indeterminacy and near approximation, it is also difficult to offer a possible classification of the emotions. A most basic way to distinguish among the emotions is based on their valence – emotions could be either positive or negative depending on whether what was experienced is viewed as pleasurable or painful or directed at good or evil. Yet, of recent this approach has been criticized because valence is not an indisputable quality and can vary significantly with different situations. For example, fear is usually labeled as a negative emotion, but could be a positive force if it induces an individual to undertake constructive actions. A most foundational theory for classification of the emotions based on their physicality was developed by Paul Ekman. It claims that there are six basic and universal emotions – happiness, sadness, fear, anger, surprise, and disgust – in the sense that their facial expressions are recognized across cultures.[clxxxix] Later scholars have modified Ekman’s theory to different degrees by adding or removing emotions. Still, others have emphasized how the basic emotions combine to form more complex or secondary ones. For example, in certain situations anger and disgust could combine to yield contempt.[cxc]

          However, these assertions have also been highly disputed. Some scholars argue that emotions are culture-specific because their content varies across cultures and time periods – universal emotions means only having the same labels. For example, feeling anger at hurt honor as in Ancient Greece that leads one to fight is unthinkable in contemporary Western societies. Nonetheless, various neuroscience studies show that two emotions have a claim to universality – those of sympathy[cxci] and fear[cxcii]. What is of note for the political process is the positive and negative action tendencies they set off for large groups of people, which fall in line with the above-mentioned idea of mechanisms. The emotion of sympathy, defined broadly as genuine concern for others, is so valuable for the political process because it can motivate and sustain altruistic actions, the common will for carrying out long-term projects and for accepting difference among citizens. On the other hand, if focused too strongly on one’s immediate surrounding and in-group, it can easily lead to discrimination and negative stereotyping against certain segments of a given society. Similarly, fear, understood as the wish to protect oneself and one’s belongings from arbitrary cruelty, can act as a force that strengthens or weakens political liberalism. On one hand, fear can lead to enhanced interest into and engagement with the political process, but in large doses it augments citizen’s tendencies to increase their own advantage at the expense of other weaker groups.[cxciii]

          Hence, most conclusions about a possible classification of the emotions remain highly tentative, with the exception of findings that assert the universality of sympathy and fear and scholarly analyses that point to their possible action tendencies. What happens when these tentative conclusions are extended to the political process that involves collectives of people? Methodological individualists dispute the idea that emotions may be the property of a group. Considering the individual as the basic unit of society, they assume that emotions are anchored in an individual. Yet, prevalent emotional patterns are often detectable within given groups empirically.

Using Pierre Bourdieu’s insights, Deborah Gould has developed a very useful term for describing such patterns – emotional habitus.[cxciv] The term refers to the emotional dispositions, whether conscious or subconscious, that operate within a specific group. An emotional habitus provides group members “with a sense of what and how to feel, with labels for their emotions, with schemas about what emotions are and what they mean, with ways of figuring out and understanding what they are feeling”.[cxcv] It also contains an “an emotional pedagogy”[cxcvi], a template for which emotions are approvable and which not. In addition, it contains historical knowledge for the beginning and evolution of the felt emotions and thus provides context for their understanding. Yet, even though an emotional habitus has the ability to shape how members of a group feel and comprehend their feelings, habitus are nondeterministic and can be understood similarly to Elster’s mechanisms. Habitus do not possess definite predictive power, but consist of “virtualities, potentialities, eventualities”.[cxcvii] Deborah Gould is not alone in proposing a concept for describing collective emotions – other authors have also suggested ideas similar to the emotional habitus. For instance, James Jasper in his work on political mobilization distinguishes between fleeting emotional reactions and what he terms “abiding affects”. The latter are enduring and structured emotions, which give the impetus political action.[cxcviii]

          Another valuable concept – structures of feeling – was put forward by Raymond Williams. The author claims that a structure of feeling describes the prevalent emotions in an entire society during a particular period of history. Moreover, these emotions are evident in everything related to the society – “from the design of homes and buildings, patterns of use of outdoor urban spaces, film, art and music and even in everyday public interaction”.[cxcix] Even though an emotional habitus does not have a deterministic structure and effects, it gives important information for the processes, which are underway in a given society and thus holds valuable explanatory power for the political process.

 

  1. Functions in the political process

As discussed above, little can be said with certainty about the definition, types and collective experience of emotions, yet the deduced approximations are invaluable for understanding how to set off processes that strengthen political liberalism. Because when stirred-up, whether top-down or bottom-up, collective emotions could prove to be the glue that binds societies together and the trigger, which propels them to implement worthy projects that require personal effort and sacrifice. On the other hand, strong emotions could also stymie destructive tendencies to protect and enhance oneself by denigrating others and by eliminating non-conforming behavior.

          The avenues open to collective emotions to impact the political process, so that the two above-mentioned objectives are attained, can be summarized under nine general headings. Even though a lot can be said about each of the headings, this section will discuss them only briefly.

          Firstly, citizens’ emotions are intimately tied to all forms of political language. Various arguments exist within the rationalist school of thought that if emotions are banned from political language, its quality and results will be improved. And, yet, this is neither possible, nor desirable. Expressing moderate amounts of sympathy or fear, for instance, can prod citizens to a deeper and more informed engagement with a topic.[cc]

          Secondly, emotions play a vital role in political campaigning. As George Lakoff has claimed in The Political Mind successful political campaigning, even though hidden behind a rationalist patina, relies heavily on emotions. US Republicans have been more adept at relating emotionally to voters as opposed to U.S. Democrats because they construct narratives, which appeal to voters’ guttural emotions.[cci]

          The third major role for collective emotions in the public process is in social mobilization. Emotions aid participants in social movements in developing a sense of unity and of belonging to a cause based on sympathy with each other, and in fending off negative and destructive forces that dissolve the movement.[ccii]

          Fourthly, emotions are key for forming groups and for respectively excluding members from these groups. On one hand, a feeling of sympathy is instrumental for creating and supporting a sense of belonging to a group; on the other hand, feelings of envy, disgust, shame are often the major causes for discriminating against minority groups due to their otherness.[cciii] Handling excess moods of the collective such as paranoia, fear, psychosis constitutes the fifth area where emotions play a role.

          How should the state respond to such collective anxieties? According to Thomson and Hoggett, if governments are not successful in defeating these anxieties, they can come to “project, enact or embody” them. Projection means that they will re-focus them on a scapegoat; enactment is when government engages in unnecessary actions just to be seen as doing something and embodying them is if the government accepts policies that correspond to the anxieties – tightens control, institutes new rules and procedures, etc.[cciv]

          The sixth area, where emotions influence the political process is in their relation to values. In A Treatise of Human Nature and An Enquiry Concerning the Principles of Morals David Hume describes an initial sympathetic reaction that necessarily accompanies all first impressions of a given situation. A feeling of sympathy towards others, claims Hume, is immanent to all human beings. And this sympathy grounds an initial reaction of either approval or disapproval towards all situations, in which an individual finds oneself. If the reaction is one of approval such as the one that stems from observing a mother’s affection towards her child, the feeling of sympathy affirms the positive value of paternal care; if the reaction is one of disapproval such as that one that arises at the sight of child abuse, the value affirmed is of prohibition of violence directed against children. In a similar manner unfolds the interaction between sympathy and the other values.

          The seventh inclusion of emotions in the political process is in managing conflict, especially in decision-making assemblies.[ccv] Political actors often share contradictory and irreconcilable opinions about the means and a way for proceeding in a certain situation. Reasoning constitutes the way to offer argumentation and weigh which arguments are more compelling, but some scholars have insisted that in the case of a deadlock it is only the emotion of sympathy, which can bring the warring parties to overcome the stilled situation and to continue their co-existence peacefully.[ccvi] As Rawls’ political liberalism postulates people can subscribe to a variety of values, norms and lifestyles – an arrangement especially suited for today’s contemporary societies, while coming to a consensus on the basic principles of justice that are to govern their joint existence. With this basis and because of their mutual sympathy, they will be able to successfully overcome conflictual situations.

          In the eighth place, emotions are key for managing post-conflict situations. These situations are especially difficult because they deal with abstract and immeasurable events and phenomena such as loss of a loved one, violent hate, bodily injury and others. Weighing rational arguments is not the way to deal with such emotions – symbolic actions that are emotion-laden could be more effective in alleviating the situation.

          And lastly, emotions could play a vital role in how a state conducts its international relations. Feeling sympathy for another nation undergoing a humanitarian crisis could prove decisive as to whether the government intervenes in its domestic affairs.[ccvii] In other words, as these nine headings illustrate, there is a constant dialectic relationship among events, political actions and emotional responses, and it is important to direct emotions in such a way as to enhance their impact on the political process in a direction that favors political liberalism.

 

  1. Failure to tame the Greek emotions

To be sure including emotional justifications in the public square will not necessary lead to decisions that would not have been suggested by rationalists and rational choice theorists[ccviii]. However, as shown, emotional justification does constitute an inseparable part of the political process, and ignoring it diminishes the explanatory power of all sorts of theoretical and empirical models about the political process. As shown with the on-going situation with the Greek bailout, when emotions run high and are not heeded to or understood, they could lead to suboptimal outcomes for the parties involved. Emotions can derail the successful attainment of goals by introducing divisions, hierarchies and forms of neglect by making positions more intractable.

          Moreover, ceding the terrain of emotion-shaping to anti-liberal forces gives the latter a huge advantage and risks making people think of liberal values as irrelevant and unattainable. On the other hand, as shown, if rightly directed emotions can make the pursuit of political liberalism more vigorous and thorough; ensure the upkeep of values in times of stress and conflict, and thus ultimately guarantee the stability of political cultures over time.

          This is why it is important for state actors to understand how to make prevalent the emotions in line with political liberalism – albeit that the success of this endeavor will always require ongoing work and vigilance.

          In particular, I have to add that these remarks must suffice so that space remains for the financial crisis that overshadows everything now.[ccix] The plaintiffs in this litigation were the usual suspects: a group of professorial economists and Dr. Gauweiler, a member of the Bundestag, as representing the Bavarian branch of the Christian Democratic party (CSU). They challenged both German and European legal instruments as well as further measures related to attempts to solve the current financial and sovereign debt crisis in the area of the European monetary union.[ccx]

          My reading of the judgment on the Greek rescue package focuses on three concerns:

          1) The first is the tension between the financial crisis management and the German constitution. In this regard, the message of the Court is strong in principle, but not so constraining in practice: Budgetary powers are a core responsibility of the parliament and a central element of democratic self-rule.[ccxi] This is why the Bundestag must remain “the place in which autonomous decisions on revenue and expenditure are made, even with regard to international and European commitments.”[ccxii] But this is where the law’s prerogatives end; parliament enjoys wide latitude in the exercise of its responsibilities, a political prerogative which the Court will respect.[ccxiii]

          2) A second concern is the compliance with the order of competences. The Court recalls its famous dictum from the Maastricht Judgment: Legal instruments that disregard the order of competences (ausbrechende Rechtsakte) do not apply in Germany.[ccxiv] But this monitum is actually soft, because it needs to be read in the light of the Mangold/Honeywell decision.[ccxv] The court refrained, though, from considering the request for a preliminary ruling under Article 267 TFEU with a view to having the CJEU examine the compatibility of the rescue measure/s with Article 125 TFEU. Instead, it contented itself with assuring that Monetary Union was designed to be a “stability community” and hence is one.[ccxvi]

          3) As to the citizens? What about us? We cannot, in a constitutional democracy, be obliged to comply with European commands that exceed the competences conferred to the Union. Hence, we need to accept that our government takes its commitments to our financial interests seriously.[ccxvii] “A crafty and blandishing wink of the eye,” comments Ruffert.[ccxviii] In fact, the Court is examining only whether Germany has met its “integration responsibility” (Integrationsverantwortung), and then leaves the question unanswered of “under what conditions constitutional complaints against non-treaty changes of primary Union law can be based upon Article 38 Paragraph 1 Sentence 1 German Basic Law.”[ccxix] The intergovernmental decisions were not “sovereign acts of German public authorities,” “notwithstanding other possibilities for legal review,” which is why they could not be challenged.[ccxx]

          Is it adequate to consider the decision’s “lasting merit” to be the fact that it “honestly recognized the limits of its own substantive expertise?”[ccxxi]  

 

  1. General conclusions

1) Understanding how and where to deal with multicultural issues is a pressing question for democracy, and so far Western democracies – in particular – do not seem to have identified a unique procedure to solve issues among different groups yet. Public deliberation is one of the main solutions that have been discussed in recent times. In the present paper, I have analyzed Awad’s adaptation of Habermas’ conception of public sphere to multicultural issues. I have argued that a Habermasian idea of public sphere fails to solve the critical multicultural problem, since it does not guarantee the basic conditions for the equal active participation of all parties into the deliberation process. I conclude that a conception of deliberative democracy prominently based on an ideal of communication might not be able to answer to the multicultural problem that current democracies are facing. In this sense, the cultural differences that have been discussed above might represent not only a limitation of the Habermas’ conception of public sphere, but arguably they pose a challenge to any form of deliberative democracy that is primarily based on the idea of public communication.

          In conclusion, the considerations presented in the section one open at least two alternative ways to address the multicultural issue. One alternative way is the “benign neglect” solution. The “benign neglect” solution argues for the non-interference by political institutions in the cultural market-place of a society. The benign neglect does not necessarily represent the refuge of the coward thinker, who is afraid to take a stand. On the contrary, it can be rather the bold and thoughtful willingness to consider the multicultural issue as sadly insoluble, as Kukathas showed[ccxxii]. However, despite its coherence, I believe that not all alternatives to the benign neglect have been explored yet. One alternative to the benign negative is the firm disentanglement from the communicative paradigm and the search of different ways to foster social interactions and reciprocal understanding among social groups. Such alternative way does not exclude the importance of verbal communication, but it does not look at it as the unique or fundamental form of communication and exchange among the parties.

          Thus, disentanglement from the communicative paradigm does not exclude the possibility that other forms of democracy can provide a more effective solution to multicultural issues. But it tries to contribute to the search for a more peaceful and respectful way of live together.

2) In the second section, I argued that “separate but equal opportunities” is an incoherent idea, based on sedentarist presuppositions. Compensating restrictions on immigration, in a world of separate nation-states, is not a way to promote global equality of opportunity since opportunities are distinct from their values and cannot be distributed by borders. Borders create, at best, equal discrimination, not equal opportunity. One should not use political power to decrease other’s freedom, based on one’s own sedentarist view about human nature.

3) Four issues were analyzed in the third and fourth section (the integration of Catholic Poland in post-Christian Europe, the integration of Turkey into the European Union, the incorporation of non-European immigrants as full members of their European host societies and of the European Union, and the task of writing a new European constitution that both reflects the values of the European people and at the same time allows them to become a selfconstituent European demos), all are problematic issues in themselves. But the paper has tried to show that unreflexive secular identities and secularist self-understandings turn those problematic issues into even more perplexing and seemingly intractable “religious” problems.

4) My main conclusion about the fifth section of the paper, nevertheless, is that the use and appearance of public space is properly a matter of democratic decision, so long as the basic rights of minorities are not infringed (as they would be, for example, if a religious minority was prevented from establishing a place of worship). On grounds of fairness, there should be a general presumption of equal treatment for different groups, but this can be set aside when the majority has a legitimate interest in seeing its cultural values reflected in the shape of the physical environment.

Here historically rooted groups and immigrant groups are not on all fours, though this will change over time as the immigrants integrate and adapt, while no doubt retaining some culturally distinct features. Their conflicting claims should be worked out through democratic deliberation, and ideally the majority should try to find ways of accommodating minority interests; the more deliberative the procedure that is followed, the more likely this is to happen. I have suggested, however, that members of a national majority may sometimes have good reasons for wanting to preserve the character of public space at the expense of the claims of Islamic and other religious minorities. I argued that the human right to religious freedom did not extend to symbolic expression in public space; and the principle of equal treatment of religions should be qualified when a particular religion is internally linked to national identity. So  when majorities and minarets collide in public space, majorities have the right to prevail, even if we think, in the case in hand, that the resulting decision was a bad one.

5) In the middle of the sixth section I have surveyed a number of recent cases where individuals faced a high cost to their core beliefs in they continued in employmet or other common activities but were not able to manifest their beliefs. It might be objected that there is a difference between a person’s inner convictions and her public activities as a nurse or registrar or school student who wishes to wear religious dress. But though we can make sense of that distinction, ignores the way that religious and other individuals with strong convictions feel called upon to express their beliefs in a public setting, not just to advertise their views to others, but to confirm their beliefs to themselves. A Sikh who wears a turban or a Christian who wears a cross is telling themselves that they have these convictions, the turban or cross being a constant reminder of an identity that is central to their lives. Though the ECHR sometimes distinguishes between religious belief and manifestations of that belief, if it was psychologically costless to make that distinction, there would hardly be a need for legal exemptions.

          The case for exemptions, and more generally legal accommodation, on religious grounds is instead that, consistent with maintaining their own self-respect, individuals should not have to choose between their religion and their job (or other activity in which they’re engaged) where individuals without these convictions need not make this choice. I have commended this argument on the grounds that it captures what’s going on from the perspective of exemptions claimants and is reasonably justifiable to third parties who are sometimes required to bear the costs of others’ exemptions. More generally, the argument stresses the importance for our self-respect that we live what are in our own eyes dignified and worthy lives, ones where we can maintain our own standards as moral beings.

          Moreover, in the last paragrapf I tried to reply to the preliminary questions: “Does liberalism demand strict separation between state and religion?”, and “Should the liberal state be secular? The issue is not merely a theoretical one. Most western states are secular states, even as they accommodate various forms of religious establishment and accommodation. I showed that, until now, there has been no direct and extensive engagement with the category of religion from liberal political philosophy.  Over the last thirty years or so, liberals have tended to analyze religion under proximate categories such as ‘conceptions of the good’ (in debates about neutrality) or ‘culture’ (in debates about multiculturalism).

          Moreover, to move beyond the dichotomies implied by public/private, accommodation/integration, and rational/irrational dichotomies, two different angles for further research have been suggested. Critical contributions to secular studies have aimed to break down the public/private divide and offer more a more nuanced understanding of religion. This approached could be extended to cover not only religious, but also other forms of pluralism. Furthermore, starting from a rethinking of the connections between group membership and citizenship, may also provide a new impulse to thinking about democracy and (severe) pluralism.

          Liberal societies conventionally treat religion as unique under the law, requiring both special protection (as in guarantees of free worship) and special containment (to keep religion and the state separate). But recently this idea that religion requires a legal  exception has come under fire from those who argue that religion is no different from any other conception of the good, and the state should treat all such conceptions according to principles of neutrality and equal liberty. In particular, I have highlighted that Cécile Laborde agrees with much of this liberal egalitarian critique, but she argues that a simple analogy between the good and religion misrepresents the complex relationships among religion, law and the state. Religion serves as more than a statement of belief about what is true, or a code of moral and ethical conduct. It also refers to comprehensive ways of life, political theories of justice, models of voluntary association, and vulnerable collective identities.

          But the basic issue, analyzed in the final lines, was: “Is there a minimal secularism – or separation between state and religion – that is required by liberal legitimacy?” In her book Liberalism’s religion, the author (Cécile Laborde), argues that there is. The most radical challenge to religion posed by liberalism is not, therefore, that liberalism maintains a wall of separation between state and religion. It is, rather, that it assumes democratic sovereignty. To sum up briefly, religious majorities can shape the state within the constraints of what Laborde, in particular, has called minimal liberal secularism.

6) As said, the final section challenged how the role of emotions could lead to suboptimal political outcomes for the parties involved, as to a large extent emotions have been instrumental in determining outcomes in the recent and on-going struggle between Greece and Germany as regards to the terms of the Greek bailout. To be sure including emotional justifications in the public square will not necessary lead to decisions that would not have been suggested by rationalists and rational choice theorists.

          However, as shown, emotional justification does constitute an inseparable part of the political process, and ignoring it diminishes the explanatory power of all sorts of theoretical and empirical models about the political process. As shown with the on-going situation with the Greek bailout, when emotions run high and are not heeded to or understood, they could lead to suboptimal outcomes for the parties involved. Emotions can derail the successful attainment of goals by introducing divisions, hierarchies and forms of neglect by making positions more intractable.

 

EXCURSUS

Politics as exchange of individual claims. In-between “biopolitics” and “rule of law”

«The empire of the law is condition

for the anarchy of the spirits».

L. Einaudi (La guerra e l’unità europea – 1948)

 

  1. Introduction

In this brief excursus I want to reconstruct the relationship between “biopolitics” and liberalism, casting a new light on aspects that affect this relationship, analyzing the themes evoked by the latter through the interpretation given by the French philosopher Michel Foucault. The aim is to show the singular analogies with the ideas of “governance” and “Rule of Law” in the liberal tradition, starting from a recognition of politics as exercise prior to all kinds of deliberately created power.

Such exercise lies at the base of each human and interindividual relationship, whose nature depends on the reciprocal exchange of performances. In this sense “danger coercion” of politics – quoting Leo Strauss – being represented by relations of power which are established as exercise prior to any constitutional or sovereign will, is described as necessary and unavoidable as long as it is limited to the minimum. This is why I propose to re-examine the link between politics and political subjects as a continuous and indefinite process of exchange, where each individual claims are accepted or denied.

 

  1. The debate on the “rebirth” of liberalism

The debate on the “rebirth” of liberalism in the twentieth century is indeed one of the most discussed issues today among scholars, although its theoretical, political and economic relevance had not been recognized until at least the mid-eighties and nineties, when terms such as “neolibéralisme“, “ultra-libéralisme” and “advanced liberal democracies” began to spread among the medias. The original meaning of the term “neoliberalism” is now gradually drifted away from the theoretical and cultural background in which it was born, that is on the one hand the environment of Austrian academic intellectuals and German members of the Ordo-Liberalismus and Social Market Economy, on the other hand the Austrian School of Economics. Among these, it seems almost superfluous to recall names such as Walter Lipmann, Louis Rougier, Wilhelm Röpke, Ludwig Mises, Frederich Hayek and Alexander Rüstow, which, incidentally, was responsible for the origin of the term.

          Though it was originally supposed to represent a convincing alternative policy to Sozialdemocratie, starting from the eighties the “myth” that echoes and the one we fell in love with looks rather like a project to “govern globalization“, whereas the means of competition and market would be used from the economic environment in order to stimulate and shape, from its inside, the cultural background of individuals. The explosion of the so-called “financial capitalism” during the eighties is a clear example. Not to mention the politics, in those same years, by Ronald Reagan and Margaret Thatcher that are still today the most visible symbol of the breaking from the welferism and from the traditional social-democracy.

          Two episodes are essentially related to the spreading of the word and culture linked to “neoliberalism”. The first is the Walter Lippmann Colloquie of 1938 and the founding of the Mont Pelerin Society Hayek, in 1947. The second is the interpretation of liberalism by Michel Foucault, an intellectual who was anything but liberal.

          Up to the present time it is not yet agreed which historical moment, whether the Walter Lippmann Colloquie or the founding of the Mont Pelerin, might be the most important for the development of the new theory “du libéralisme agendas“. Only recently some French scholars, including Serge Audier, Christine Dardot and Pierre Laval, have attempted to re-evaluate the historical and theoretical importance of the Lippmann Colloquie, which has been almost never mentioned in the biographies of the author and appears to have been written only in some partial and fragmentary evidence of some of its participants. We know, however, that Hayek, for almost the entire course of his life, had been trying to minimize its importance (as proved by some of his testimony and autobiographies). In the same fashion he had been proudly considering himself promoter “of contemporary liberalism, confident of the roots that the evolutionary approach to the institutions of the Austrian tradition had in common with the thought of English and Scottish Moralist of the seventeenth and eighteenth century: John Locke, Bernarde Mandeville, Adam Smith, David Hume, Adam Ferguson.

          Unexpectedly, one of the first to re-evaluate the “Lippmann episode” was probably Foucault, who — during the lessons of the Cours au Collège de France of years 1978-1979 — gave it credit for its important historical and intellectual role in the rebirth and development of contemporary liberalism. He captures perfectly the transformation and the theoretical relevance of “new liberalism” and the distance with the Classical Liberalism. That is to say, the almost unanimous fact that it can no longer be based exclusively on the classic sterile and apologetic principle — using Lippmann’s words — of “laissez-faire, laissez-passer” but has to be the result of a legal order which must involve some activity of formal and legal action of the state. Furthermore, he foresaw the transformation of what was to become, in popular culture, the so-called “neoliberalism”.

          Michel Foucault’s interpretation of the liberalism has had a remarkable expansion over the last decades and it is essentially linked to the success of the word and category represented by the term “biopolitics”. Since the nineties we have witnessed an intense proliferation of writings on “biopolitics”, in which this category has been used with the porpoise of explaining the economic and social problems that characterize the society of the twenty-first century: globalization, eugenethics, bioeconomics, bioethics, robotics and transformers technologies, sexuality and secularization of bodies, biomedicine and biotechnologies. Since then, the term “biopolitics” is widely used both in debates on political theory and in non-academic environments, often taking on elusive meanings far from being homogeneous. In the same years, taking Foucault’s approach on governance of the individual through the processes of subjectivities, many of the over mentioned phenomena have been gradually associated with the political context “liberal and capitalistic democracies”.

          Could all those phenomena be perhaps in some way connected with the practice of liberal government? Is it really that kind of enterprising and individualist capitalism, whose strategic logic can be interpreted as a logic of optimization and comparative efficiency? Therefore, is it possible to speak of ‘’advanced liberal democracies’’, using Nikolas Rose’s definition, as an ideal scenario for the effective carrying out of biopolitics?

 

  1. How to rebuild the link between “biopolitics” and liberalism?

From these questions, my speech wants to rebuild the link between “biopolitics” and liberalism, casting a new light on aspects that affect this relationship, analyzing the themes evoked by the latter through the interpretation given by the French philosopher. The aim is to show the singular analogies with the ideas of “governance” and “Rule of Law” in the liberal tradition, starting from a recognition of politics as exercise prior to all kinds of deliberately created power. Such exercise lies at the base of each human and interindividual relationship, whose nature depends on the reciprocal exchange of performances. In this sense “danger coercion” of politics – quoting Leo Strauss – being represented by relations of power which are established as exercise prior to any constitutional or sovereign will, is described as necessary and unavoidable as long as it is limited to the minimum.

          Rather than seeing in liberalism a perfect and convincing biopolitical experiment that is to say, a concrete project of govern mentality of individuals through the means-of-market economy, as interpreted by Foucault, or an economic solutions of political matters, according to the formula of Strauss – My intent is to consider liberalism more as a procedure for resolving the uncertainty, without falling into coercion costs that would result from a political offer of collective choices. Granted the awareness that this uncertainty could  never be eliminated nor could power and political activity even if minimized and reduced to the minimum.

          Following the interpretation given by Foucault and post-Foucauldian philosophers, like Nikolas Rose, the distinctive character of the “neoliberal rationality” acquires its significance when the main economic aspect is used as analysis grid of not monetized choices of the social partner (for example the choice of a partner or the choice of an environment to spend someone’s life). Doing so the human and the economic as well as politic and economy within the individual himself become hybrid. Its specific logic of function is strategic and economic in contrasts with the political and juridical one, which has on the contrary permanently expressed modernity hinging on the concept of sovereignty.

          This assumes a radical work of sensibilization towards the responsibility as well as the ability of the individual to take in full responsibility (i.e. someone’s own health and well-being). Therefore uprooting the culture of dependency, welferism and state parasitism. The ability of the paradigm “biopolitical” reveals a productive and incrementing characteristic of power. Power is considered as government of lives, whose political profile appears as a sort of Vitalpolik. It implies a practice of government where individuals are recognized as rational and economic actors, prior to social. In addition they are subordinated to the principles of competitiveness and encouraged to pursue their own self-government and to take “care of themselves.” For this reason Foucault and Rose proposed a model aimed at encouraging the spreading of entrepreneurial ethos as well as the reduction of state involvement in the economy; based not only on the assumption of their inefficiency, in comparison to the regulatory mechanisms of the economy, but also for pursuing a kind of cultural revolution focused on strengthening the values associated with the market.

 

  1. From Foucault to Hayek, to Leoni and to Einaudi

However, this sort of “common economics” view, where economy is supposed to represents some innovative sort of indirect control, is nothing but another misunderstanding of the political contents of liberalism.

          Theorists of liberalism think that the market order is not a control strategy. No sort of “biopolitical” function, neither mental law on the environment, nor on the life and ethos of the individual can be reproduced with the help of optimization and rationalization of the actors’ life plans. Nevertheless through the abstract and impersonal law and Rule of Law. Institutional processes are not, in this case, the expression of some power. They are more likely a barrier against the power itself. The concept of market proposed by the Austrians, and particularly by Hayek is a good example: a process that describes wide “catallactics” horizons for whoever participates, never static, but in a process of constant change. Another important theory is by Bruno Leoni where law is seen as an exchange of individual claims. His perspective on power and politics are always more than an institutional framework, represented by the State and its legislative apparatus, since they may not work other than on the basis of pre-existing relations of powers.

          In this sense, both the perspective of Foucault, although exotic and not without risk, and the one of the post-Foucauldian, do not seem to take into account the possible familiarity that the same concept of power drawn by the French philosopher may share with the tendency, shared by the theoretician of liberalism themselves, to define the use and monopoly. It is equally possible to support that in both theories, despite the obvious and undeniable political and methodological differences, we reach an ergodic organization, which is reversible and spontaneous of inter-individual relations, who does not have a decision-making center nor a fixed origin, but it is characterized by a high frequency of changes and modifications.

          Since there is no way to establish fixed positions in such contexts nor to make predictions about how these positions will be distributed within the structure, the final outcome of the entire process will be unpredictable and will not be determined in advance unless by the nature of the exchange. At the core of the idea of power described by Foucault, starting from “La Volonté de Savoir”, there is never a single center of decisionmaking, from which rays propagate into forms of descendant sovereignty. Then again there is always a distribution of “individual sovereignty “, relevant or less relevant, found in relations among individuals.

          The situation that arises from such exchange looks like a network of strategic relationships originated by different locations. A condition in which these relations are carried on in a binary dualism or a rigid exchange pyramid could never resolve — quoting Leoni — the arkomenoi are always in an inferior condition to arkoi. This sort of “simmachia” in the exchange of power relations does not involve, as matter of fact, a static and rigid situation in which the exchange is exercised from a straight or perpendicular line, as to its origin there is never a binary and global opposition between dominant and dominated.

          My suggestion is, due to these reasons, to look over the link between politics and political subjects as a process of exchange, continuous and indefinite, in which the claims of each individual are to be exchanged, accepted or denied. The government of the individuals is actually seen as spontaneous society of free men starting from the aim, shared even by Foucault himself, of not being over governed and of reducing the legal monopoly of power[ccxxiii]. Such monopoly could never be entirely cancelled, being in itself necessary to the extent in which it can be in an asymptotic way reduced, overturning the forms in order to avoid “states of the domain”, or as Hayek would say, in stable forms of coercion.

          On this path, rather than seeing in politics a bioeconomical, increasing and productive capability of life, you can read through a search for different forms of freedom within unavoidable relationships of power, where — as Luigi Einaudi once said — the empire of the law is condition for the anarchy of the spirits.

 

Endnotes

 

[i]              As to a short bibliography, see (in alphabetical order): Awad I. (2011), “Critical Multiculturalism and Deliberative Democracy: Opening space for more inclusive communication”, in Javnost -The Public, 18(3), pp. 39-54; Bell D. (2015), The China Model: Political Meritocracy and the Limits of Democracy, Princeton University Press, Princeton; Berry B. (2001), Culture and Equality: An Egalitarian Critique of Multiculturalism, Blackwell Publishing Ltd, Oxford; Blais A. (2013), “The Source of Turnout Decline New Values or New Contexts?”, in Comparative Political Studies, 2013, Vol. 46 (1), pp. 95-117; Bohman J. (1996), Public Deliberation: Pluralism, Complexity, and Democracy, MIT Press, Cambridge; Cameron, D. (2011). PM’s Speech at Munich Security Conference, link <http://www.number10.gov.uk/news/speeches-and-transcripts/2011/02/pms-speech-at-munichsecurity-conference-60293>; Cohen J. (1996), “Procedure and substance in deliberative democracy”, in Seyla Benhabib, ed., Democracy and Difference, Princeton University Press, Princeton; Correira J. C. (2008), “Democratic Deliberation and Multiculturalism: new Chalenges to regulation and self- regulation”, presented at 2nd European Communication Conference for European Communication Research and Education Association, Barcelona, 25 -28 November, 2008, link: <https://www.academia.edu/385838/DEMOCRATIC_DELIBERATION_AND_MULTICULTURALISM_NEW_CHALENGES_TO_REGULATION_AND_SELF-REGULATION>; Kukathas C., (2003), The Liberal Archipelago: A Theory of Diversity and Freedom, Oxford University Press, Oxford; ID., (1997), “Survey Article: Multiculturalism as Fairness: Will Kymlicka’s Multicultural Citizenship”, in Journal of Political Philosophy, Vol. 5 (4), pp. 406–427; Kymlicka W. (1995), Multicultural Citizenship: A Liberal Theory of Minority Rights, Clarendon Press Oxford, Oxford; Goode L. (2005), Jürgen Habermas: Democracy and the Public Sphere, Pluto Press, London; Habermas J. (1995), “Reconciliation throught the Public use of Reason: Remarks on John Rawls’s Political Liberalism”, in The Journal of Philosophy, Vol. 92, pp. 109-31; ID., (1996a), Between Facts and Norms, MIT Press, Cambridge; ID., (1996b),“Three Normative Models of Democracy”, in S. Benhabib (ed.), Democracy and Difference, pp. 21-30, Princeton University Press, Princeton; ID., (1998), The Inclusion of the Other, MIT Press, Cambridge; Merkel A. (2010), “Angela Merkel: German multiculturalism has “utterly failed”, http://www.theguardian.com/world/2010/oct/17/angela-merkel-german-multiculturalism-failed; Parekh B. (2005), Rethinking Multiculturalism: Cultural Diversity and Political Theory, 2nd edition, Palgrave Macmillan, Basingstoke; Rawls J. (1993), Political Liberalism, Columbia University Press, New York; Sarkozy N. (2011), available at http://www.dailymail.co.uk/news/article-1355961/Nicolas-Sarkozyjoins-David-Cameron-Angela-Merkel-view-multiculturalism-failed.html; Young I. M. (2000), Inclusion and Democracy, Oxford University Press, Oxford.

[ii]           Kukathas C., (2003), The Liberal Archipelago: A Theory of Diversity and Freedom, Oxford University Press, Oxford, p. 123.

[iii]           Kymlicka W. (1995), Multicultural Citizenship: A Liberal Theory of Minority Rights, Clarendon Press, Oxford.

[iv]          Berry B. (2001), Culture and Equality: An Egalitarian Critique of Multiculturalism, Blackwell Publishing Ltd, Oxford.

[v]           Merkel A. (2010), “Angela Merkel: German multiculturalism has “utterly failed”., available at http://www.theguardian.com/world/2010/oct/17/angela-merkel-german-multiculturalism-failed.

[vi]          Sarkozy N. (2011), available at http://www.dailymail.co.uk/news/article-1355961/Nicolas-Sarkozyjoins-David-Cameron-Angela-Merkel-view-multiculturalism-failed.html.

[vii]          See, http://www.bbc.com/news/uk-29008316.

[viii]         Cameron, D. (2011). PM’s Speech at Munich Security Conference, link <http://www.number10.gov.uk/news/speeches-and-transcripts/2011/02/pms-speech-at-munichsecurity-conference-60293>.

[ix]          Awad I. (2011), “Critical Multiculturalism and Deliberative Democracy: Opening space for more inclusive communication”, in Javnost -The Public, 18(3), pp. 39-54.

[x]          Correira J. C. (2008), “Democratic Deliberation and Multiculturalism: new Chalenges to regulation and self- regulation”, presented at 2º European Communication Conference for European Communication Research and Education Association, Barcelona, 25 -28 November, 2008, link: <https://www.academia.edu/385838/democratic_deliberation_and_multiculturalism_new_chalenges_to_regulation_and_self-regulation>.

[xi]          Awad, (2011), p. 39.

[xii]          Cohen J.A. (1989), On the Currency of Egalitarian Justice, in Ethics, Vol. 99, No. 4 (Jul., 1989), pp. 906-944.

[xiii]         Cohen J. (1996), “Procedure and substance in deliberative democracy”, in Seyla Benhabib, ed., Democracy and Difference, Princeton University Press, Princeton.

[xiv]         Rawls J. (1993), Political Liberalism, Columbia University Press, New York.

[xv]         Habermas J. (1996b), “Three Normative Models of Democracy”, in S. Benhabib (ed.), Democracy and Difference, pp. 21-30, Princeton University Press, Princeton.

[xvi]         Habermas, (1996b), p. 244.

[xvii]         See Habermas, (1996b), p. 245.

[xviii]        Habermas J. (1996a), Between Facts and Norms, MIT Press, Cambridge, p. 360.

[xix]         Bohman J. (1996), Public Deliberation: Pluralism, Complexity, and Democracy, MIT Press, Cambridge, p. 43.

[xx]          Similarly to Awad (2011), Correira (2008), argues that Habermas’ deliberative democracy provides a suitable model to face the increasing multiculturalism if we conceive “many alternative media are themselves the organs of the new public sphere concept of public sphere is extended to the new alternative media”, p. 7.

[xxi]         Awad, (2011), p. 41.

[xxii]         I borrow the term “social prospective” from Young I. M. (2000), Inclusion and Democracy, Oxford University Press, Oxford, p. 136.

[xxiii]        Awad, (2011), p. 52.

[xxiv]        “Secondly, communication and the consequences of communication of the deliberative model cannot be separated from the structural conditions in which discourse occours. Communication operates at all levels of socil justice and arguing that a communicative approach is apolitical is misunderstanding this”, Awad, (2011), p. 52.

[xxv]         Habermas, (1996a), p. 359.

[xxvi]        Habermas, (1996a), p. 363.

[xxvii]        Habermas, (1995), p. 124.

[xxviii]       Parekh, (2005), Rethinking Multiculturalism: Cultural Diversity and Political Theory, 2nd edition, Palgrave Macmillan, Basingstoke.

[xxix]        Parekh, (2005), p. 305.

[xxx]         Parekh, (2005), pp. 304-305.

[xxxi]        Bell D. (2015), The China Model: Political Meritocracy and the Limits of Democracy, Princeton University Press, Princeton, p. 56.

[xxxii]        This idea is often expressed in public debates. For theoretical defenses of the trade-off between restrictions on immigration and development aid, see e.g. Th. Pogge, “Migration and Poverty” in Robert Goodin and Philip Pettit (eds.) Contemporary Political Philosophy: An Anthology, Oxford, Blackwell, 2005; E. Cavallero, “An immigration-pressure model of global distributive justice” Politics, Philosophy & Economics, Vol. 5, No. 1, 2006; A. Shachar, Birthright lottery: Citizenship and Global Inequality, Cambridge Mass. and London, Harvard University Press, 2009.

[xxxiii]       “Separate” nation-states can be understood in two senses: separate jurisdictions without control of entry to the territory and separate jurisdictions with control of territory. Separate jurisdictions are, of course, compatible with freedom of movement as historical reality shows. For an account on the origins and construction of the exclusionary power of the states, see e.g., Plender, Richard, International Migration Law, Leiden, A. W. Sijthoff, 1972, esp. Ch. 1-3. Nowadays, European Union is a clear example of nation-states where separate jurisdictions are compatible with the right to freely move for their citizens.

[xxxiv]       Equality of opportunity as an ideal of global justice was most notably defended by S. Caney Cosmopolitan Justice and Equalizing Opportunities” Metaphilosophy, 2001, vol. 32. n° 1-2, pp. 113-134; D. Moellendorf, Cosmopolitan Justice, Boulder, Colorado, Westview Press, 2002; A. Shachar Birthright lottery: Citizenship and Global Inequality, Cambridge Mass. and London, Harvard University Press, 2009. Gillian Brock defends a decent rather than an equal set of opportunities in her Global Justice. A Cosmopolitan Account, Oxford, Oxford University Press, 2009 esp. p. 62.

[xxxv]       Equality of opportunity has been recognized as one of most popular ideals, by philosophers of different political orientations whether they endorsed this ideal themselves or not. See e.g., Schaar, John “Equality of Opportunity”, in Nomos IX: Equality, ed. James Pennock and John Chapman, NY, Atherton Press, 1967, p. 228; Nozick, Robert, Anarchy State and Utopia, London, Blackwell, 1974, p. 235; Levin, Michael, “Equality of Opportunity”, Philosophical Quartely, vol. 31, 1983, p. 110; Moellendorf, Darrell, Cosmopolitan Justice, Westview Press, 2002, p. 49.

[xxxvi]       Eric Cavallero, “An immigration-pressure model of global distributive justice” Politics, Philosophy & Economics, Vol. 5, No. 1, 2006, n. 17, p. 123.

[xxxvii]      See 163 US 551 (1896).

[xxxviii]      The revival of equality of opportunity research is owed to authors like Richard Arneson, Gerald A. Cohen, Amartya Sen, James Fishkin, and John Roemer, among others. Since the debate has been focused on the concept of equality and its relation to responsibility, this literature lacks, except for Arneson’s writings, a clear definition of the word “opportunity”. For literature defining the concept of opportunity, see the following note below.

[xxxix]       For some definitions, see D.A. Lloyd Thomas, “Competitive Equality of Opportunity”, Mind, Vol. 86, No. 343, 1977, pp. 388-404 (“One has an opportunity to do something or to have something provided that one can do it or have it if one choses. One has no opportunity to do something or to have something if one cannot do it or have it even if one wishes” at p. 388); Peter Western, “The Concept of Equal Opportunity”, Ethics, vol. 95, 1985, pp. 837-850 (identifying three elements of the concept of opportunity: an agent, a goal and a relationship between them); S. J. D. Green, “Is Equality of Opportunity a False Ideal for Society?” The British Journal of Sociology, Vol. 39, No. 1, 1988 pp. 1-27 (“An opportunity is a chance of getting something if one seeks it. It is about the presence or absence of obstacles limiting what an agent may do or have if he wishes” at p. 4); Alan H. Goldman, “The justification of equal opportunity”, in Equal Opportunity, Ellen Frankel Paul, Fred D. Miller, Jeffrey Paul and John Ahrens, Blackwell, 1987, pp. 88-103 (“An opportunity is a chance to attain some goal or to obtain some benefit. More precisely, it is the lack of some obstacle or obstacles to the attainment of some goal” at p. 88); Richard Arneson, 1989, “Equality and Equality of Opportunity for welfare”, Philosophical Studies, vol. 56, No. 1, pp. 77-93 (“An opportunity is a chance of getting something if one seeks it” at p. 85).

[xl]          Sven Ove Hansson, “What Are Opportunities and Why Should They Be Equal?” Social Choice and Welfare, vol. 22, 2004, p. 306.

[xli]   The definitions come, respectively, from the Merriam Webster Online http://www.merriam-webster.com/dictionary/opportunity and from Cambridge English Dictionary. http://dictionary.cambridge.org/dictionary/british/opportunity.

[xlii]         Biku Parekh, Rethinking multiculturalism : cultural diversity and political theory, Basingstoke, Macmillan, 2000, p. 241.

[xliii]         Bernard Boxill, “Global equality of opportunity and national integrity”, Social Philosophy and Policy, vol. 5, n°1, 1987, pp. 143-168.

[xliv]         Miller, David “Against Global Egalitarianism”, Journal of Ethics, vol. 9, n° 1-2, 2005, pp. 55-79.

[xlv]         Miller, ibid. p. 62.

[xlvi]         Assumptions about substitutability can be used to classify political theories: the more a theory presupposes that opportunities are substitutable, the more illiberal it is.

[xlvii]        See for instance, D. Miller who considers the idea that global equality of opportunity can mean that “people with the same talent and motivation should have identical opportunity sets no matter which society they are born to” but rejects it suddenly: “surely such a requirement would be too strong. It would for instance require unlimited rights of migration coupled with unrestricted admission to citizenship” ibid. pp. 59-60.

[xlviii]        The example comes from Peter Western, who once remarked that “the marital obstacle differs from insurmountable obstacles like race, color, and sex because marriage in America is a legal status that a person himself may change”, cfr. “The Concept of Equal Opportunity”, Ethics, vol. 95, 1985, p. 840.

[xlix]         John Rawls, A Theory of Justice, Oxford University Press, 1999, p. 62.

[l]            An important literature has emerged in the last decade to criticize “methodological nationalism” in most social sciences. While the term “methodological nationalism” has been coined by Martins (1974: 226) to criticize the social sciences’ tendency to equate “society” with the bounded nation-state, the idea had been discussed in the 1970s by Giddens (1973: 265) and Smith (1979: 191). Recently, it has been revived by Beck (2000: 24) who has opposed it to methodological cosmopolitanism as an alternative way to analyze social phenomena and political organization. Its impact on migration studies has been firstly highlighted by Wimmer & Glick Shiller (2003).

[li]           Speranta Dimitru coined this term in his anaysis of brain drain ethics “L’éthique du débat sur la fuite des cerveaux”, Revue Européenne des Migrations Internationales, No. 25, vol. 1, 2009, pp. 119-135.

[lii]           For an exception, see Hammar, Tomas and Tamas, Kristof “Why do People Go or Stay”; Fischer, Peter A., Martin, Reiner and Straubhaar, Thomas ‘Should I Stay or Should I go?” in International Migration, Immobility and Development. Multidisciplinary Perspectives, Hammar, Tomas, Brochman, Grete, Tamas Kristof and Faist, Thomas (eds.), Oxford, NY, Berg, 1997, pp. 1-20 and 49-89; Fischer, Peter A., Holm, Einar, Malmberg, Gunnar and Straubhaar, Thomas,”Why do People Stay? Insider Advantages and Immobility” HWW Discussion Paper 112, Hamburg Institute of International Economics, 2000, in http://www.econstor.eu/dspace/bitstream/10419/19439/1/112.pdf.

[liii]          For a review of the economic literature measuring the costs of restrictions to international labor mobility see Michael Clement, “Economics and emigration: trillion-dollar bills on the sidewalk?” Journal of economics perspectives, vol. 25, n°3, 2011, pp. 83-106.

[liv]          Michael Walzer, Spheres of Justice: a defense of pluralism and equality, Basic Books, 1983, p. 38.

[lv]          Eric Cavallero, “An immigration-pressure model of global distributive justice” Politics, Philosophy & Economics, Vol. 5, No. 1, 2006, p. 105.

[lvi]          Shachar Birthright, p. 5.

[lvii]         To see why it is a mistake, compare it to the reasoning “most people who eat are forced by hunger, then eating is generally coerced by hunger”.

[lviii]         Pogge, Thomas, “Migration and Poverty” in Robert Goodin and Philip Pettit (eds.) Contemporary Political Philosophy: An Anthology, Oxford, Blackwell, 2005, p. 713.

[lix]          To see why it is a mistake, compare it to the reasoning “political oppression generated a new literary style; struggling political oppression is a worthy cause, then struggling the new literary style is a worthy cause”.

[lx]          Cavallero, Eric, “An immigration-pressure…” p. 97.

[lxi]          For a similar argument, see Hillel Steiner, “Hard Borders, Compensation and Classical Liberalism” and Loren Lomasky, “Toward a Liberal Theory of National Boundaries”, in Boundaries and Justice. Diverse Ethical Perspectives, David Miller and Sohail Hashmi (eds.), Princeton and Oxford, Princeton University Press, 2001, pp. 55-88.

[lxii]         Brian Barry, “The Quest for consistency: A skeptical view” in Brian Barry and Robert E. Goodin, eds. Free Movement: Ethical Issues in the Transnational Migration of People and of Money. University Park, Pa.: Pennsylvania State University Press, 1992 pp. 279.

[lxiii]         As to a short bibliography, see (in alphabetical order): Banting K-Kymlicka W. (eds.) (2006), Multiculturalism and The Welfare State: Recognition and redistribution in contemporary democracies, Oxford University Press, Oxford; Barry B. (2001). Culture and Equality: An Egalitarian Critique of Multiculturalism, Cambridge: Polity Press; Cambridge, Mass.: Harvard University Press; Carter I. (2011), Respect and the Basis of Equality, in “Ethics”, vol. 121, 3, pp. 538-71; Ceva E. (2011), Self-legislation, Respect and the Reconciliation of Minority Claims, in “Journal of Applied Philosophy”, 281, pp. 14-28; Ceva E.-Zuolo F., “Il rapporto tra maggioranze e minoranze in democrazia: una questione di rispetto”, in E. Ceva, A.E. Galeotti (eds.), Lo spazio del rispetto, Bruno Mondadori, 2012, pp. 103-126; Darwall, S. (1977), Two Kinds of Respect, in “Ethics” vol. 88, 1, pp. 36-49; Id., (2006) The Second Person Standpoint: Morality, Respect, and Accountability, Harvard University Press; Fraser N. (1995a), Recognition or Redistribution? A Critical Reading of Iris Young’s Justice and the Politics of Difference, in “Journal of Political Philosophy”, vol. 3, 1995, pp. 166-180; Fraser N. (1995), From Redistribution to Recognition? Dilemmas of Justice in a ‘Postsocialist’ Age, in “New Left Review”, vol. 212, 1995, pp. 68-93; Fraser N., Honneth A. (2003) Redistribution or Recognition?: A Political-Philosophical Exchange, co-authored with Nancy Fraser Verso, New York; Galeotti A.E. (2002), Toleration as Recognition, Cambridge University Press, Cambridge; Id., (2010a), Respect as recognition: Some Political Implications, in The Plural States of Recognition, M. Seymour (ed.), Palgrave, Basingstoke; Id., (2010b) Multicultural claims and equal respect in “Philosophy Social Criticism” vol. 36, no. 3-4, pp. 441-450; Gitlin T. (1995), The Twilight of Common Dreams: Why America is Wracked by Culture Wars. New York, NY: Metropolitan Books; Gurr T. (1993), Minorities at Risk: A Global View of Ethnopolitical Conflict, Institute of Peace Press, Washington; Id., (2000), People versus States: Minorities at Risk in the new Century, Institute of Peace Press, Washington; Kymlicka W. (1995), Multicultural Citizenship: A Liberal Theory of Minority Rights, Oxford University Press, Oxford; Id., (1997), Do We Need a Liberal Theory of Minority Rights?, “Constellations” vol. 4, 1, pp. 72-87, reprinted in Kymlicka, W. (2001), Politics in the vernacular: Nationalism, multiculturalism, citizenship, Oxford University Press, Oxford; Id., (2007) Multicultural Odysseys: Navigating the New International Politics of Diversity, Oxford University Press, Oxford; Miller D., (1995) On Nationality, Oxford, Clarendon Press, 1995; Id., Multiculturalism and the welfare state: Theoretical reflections, in Banting K. Kymlicka W. (eds.) (2006), Multiculturalism and The Welfare State: Recognition and redistribution in contemporary democracies, Oxford University Press, Oxford, pp. 323-338; Ottonelli V. (2012), I principi procedurali della democrazia, Il Mulino, Bologna; Rorty R. (1998), Achieving our Country: Leftist Thought in Twentieth Century America. Cambridge, Mass.: Harvard University Press; Id., (2000), ‘Is “Cultural Recognition” a Useful Concept for Leftist Politics?’ Critical Horizons, 1: 7–20;  Testino C. (2010), Nomadism’ and Housing Policies. Roma in Italy: a Hard Case for the Theory of Minority Rights, in “Notizie di Politeia”, vol. 99, 26, pp. 97-112; Young, I.M. (1996), Justice and the Politics of Difference,Princeton University Press, 1990; Id., (1997), A Multicultural Continuum, A Critique of Will Kymlicka’s Ethnic-Nation Dichotomy, “Constellations”, vol. 4, 1, pp. 48-53; Id., (2000), Inclusion and Democracy, Oxford University Press, Oxford; Wolfe, A.-Klausen, J. (1997). ‘Identity Politics and the Welfare State’. Social Philosophy and Policy, 14(2): 231–55; Id., (2000). ‘Other Peoples’. Prospect (Dec.): 28–33; Wolff J., de-Shalit A. (2007), Disadvantage, Oxford University Press, Oxford.

[lxiv]         On the complexity of defining and measuring disadvantage see Wolff J., de-Shalit A., Disadvantage, Oxford University Press, Oxford, 2007.

[lxv]         For an in-depth discussion of such a distinction see Fraser N., Honneth A., Redistribution or Recognition?: A Political-Philosophical Exchange, co-authored with Nancy Fraser, Verso, New York, 2003.

[lxvi]         Galeotti A.E., Toleration as Recognition, Cambridge University Press, Cambridge, 2002.

[lxvii]        Young, I.M., Justice and the Politics of Difference,Princeton University Press, 1996; see also Id., Inclusion and Democracy, Oxford University Press, Oxford, 2000, and Kymlicka W., Multicultural Odysseys: Navigating the New International Politics of Diversity, Oxford University Press, Oxford, 2007.

[lxviii]        Kymlicka (2007).

[lxix]         See Gurr T., Minorities at Risk: A Global View of Ethnopolitical Conflict, Institute of Peace Press, Washington, 1993; Id., People versus States: Minorities at Risk in the new Century, Institute of Peace Press, Washington, 2000, cited in Kymlicka (2007).

[lxx]         Kymlicka W., Multicultural Citizenship: A Liberal Theory of Minority Rights, Oxford University Press, Oxford, 1995, p. 76.

[lxxi]         Kymlicka (1995), p. 14.

[lxxii]        Kymlicka (2007), pp. 66-8.

[lxxiii]        Kymlicka (2007), p. 77.

[lxxiv]          Kymlicka (2007), p. 61.

[lxxv]        Banting K., Kymlicka W. (eds.), Multiculturalism and The Welfare State: Recognition and redistribution in contemporary democracies, Oxford University Press, Oxford, 2006, p. 3.

[lxxvi]        Among those, Kymlicka cites Barry B., Culture and Equality: An Egalitarian Critique of Multiculturalism, Cambridge: Polity Press; Cambridge, Mass.: Harvard University Press, 2001; Gitlin T., The Twilight of Common Dreams: Why America is Wracked by Culture Wars. New York, NY: Metropolitan Books, 1995; Rorty R., Achieving our Country: Leftist Thought in Twentieth Century America, Cambridge, Mass.: Harvard University Press, 1998; Id., (2000), ‘Is “Cultural Recognition” a Useful Concept for Leftist Politics?’ Critical Horizons, 1: 7–20; Wolfe, A., and Klausen, J. (1997). ‘Identity Politics and the Welfare State’. Social Philosophy and Policy, 14(2): 231–55; Id., (2000). ‘Other Peoples’. Prospect (Dec.): 28–33.

[lxxvii]       Banting, Kymlicka (2006), pp. 10-30.

[lxxviii]       Young, I.M., A Multicultural Continuum, A Critique of Will Kymlicka’s Ethnic-Nation Dichotomy, “Constellations”, vol. 4, 1, 1997, pp. 48-53.

[lxxix]        In Testino C., Nomadism’ and Housing Policies. Roma in Italy: a Hard Case for the Theory of Minority Rights, in “Notizie di Politeia”, vol. 99, 26, 2010, pp. 97-112, the author  describes the case of Roma in Italy as such an anomaly.

[lxxx]        Kymlicka (2007), p. 78.

[lxxxi]        Young, I.M., Inclusion and Democracy, Oxford University Press, Oxford, 2000.

[lxxxii]       Young (2000), p. 89.

[lxxxiii]       Young (2000), pp. 90-1.

[lxxxiv]      Kymlicka (2007), p. 45.

[lxxxv]       Miller D., Multiculturalism and the welfare state: Theoretical reflections, in Banting K. Kymlicka W. (eds.), Multiculturalism and The Welfare State: Recognition and redistribution in contemporary democracies, Oxford University Press, Oxford, pp. 327-338, 2006.

[lxxxvi]      Fraser N. (1995), From Redistribution to Recognition? Dilemmas of Justice in a ‘Postsocialist’ Age, in “New Left Review”, vol. 212, 1995, pp. 68-93; see moreover Kymlicka (2007), Young (2000).

[lxxxvii]      Darwall, S. (1977), Two Kinds of Respect, in “Ethics” vol. 88 ,1, pp. 36-49.

[lxxxviii]     Carter I. (2011), Respect and the Basis of Equality, in “Ethics”, vol. 121, 3, pp. 538-71.

[lxxxix]      Galeotti A.E. (2010), Respect as recognition: Some Political Implications, in The Plural States of Recognition, M. Seymour (ed.), Palgrave, Basingstoke, p. 444.

[xc]          Darwall S., The Second Person Standpoint: Morality, Respect, and Accountability, Harvard University Press, 2006.

[xci]         Galeotti A.E. (2010) Multicultural claims and equal respect in “Philosophy Social Criticism” vol. 36, no. 3-4, p. 445.

[xcii]         On the procedural nature of equal respect see Ceva E. (2011), Self-legislation, Respect and the Reconciliation of Minority Claims, in “Journal of Applied Philosophy”, 281, pp. 14-28; Ceva E.-Zuolo F., “Il rapporto tra maggioranze e minoranze in democrazia: una questione di rispetto”, in E. Ceva, A.E. Galeotti (eds.), Lo spazio del rispetto, Bruno Mondadori, 2012, pp. 103-126; Ottonelli V., I principi procedurali della democrazia, Il Mulino, Bologna, 2012.

[xciii]        Cf. David Martin, A General Theory of Secularization, London 1978; and Andrew Greeley, Religion in Modern Europe at the End of the Second Millennium, London 2003.

[xciv]        Grace Davie, Religion in Britain Since 1945: Believing without Belonging, Oxford 1994, and Religion in Modern Europe: A Memory Mutates, Oxford 2000.

[xcv]         Danièle Hervieu-Léger, “Religion und sozialer Zusammenhalt”, Transit 26 (2003/2004).

[xcvi]        José Casanova, “Das katholische Polen in säkularisierten Europa”, Transit 25 (2003).

[xcvii]        Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order, New York 1996, 139.

[xcviii]       About all these aspects, visit the Centro studi Medì – Migrazioni nel Mediterraneo di Genova (Italy), as well as the San Remo Institute of International Law (Italy).

[xcix]        Karen Isaksen Leonard, Muslims in the United States. The State of Research, New York 2003.

[c]           José Casanova, “Beyond European and American Exceptionalisms: towards a Global Perspective,” in G. Davie, P. Heelas, and L. Woodhead, eds., Predicting Religion, Aldershot 2003.

[ci]          Will Herberg, Protestant-Catholic-Jew, Chicago 1983, 27-8.

[cii]          Indeed, one of the most questionable aspects of Huntington’s thesis is his nativist anti-immigrant and anti-multi-culturalist posture in order to protect the supposedly Western civilizational purity of the United States from hybridization.

[ciii]         Elaine Sciolino, “Debate Begins in France on Religion in the Schools”, New York Times, 4 February 2004.

[civ]         This point was forcefully made by Dieter Grimm at his keynote address, “Integration by Constitution – Juridical and Symbolic Perspectives of the European Constitution”, at the Conference “Toward the Union of Europe – Cultural and Legal Ramifications”, at New School University, New York, 5 March 2004.

[cv]          Bronislaw Geremek, “Welche Werte für das neue Europa?”, Transit 26 (2003/2004).

[cvi]         Even in his new post-secular openness to the religious “other” and in his call for the secular side to remain “sensitive to the force of articulation inherent in religious languages”, Jürgen Habermas still implies that religious believers must naturally continue to suffer disabilities in the secular public sphere. “To date, only citizens committed to religious beliefs are required to split up their identities, as it were, into their public and private elements. They are the ones who have to translate their religious beliefs into a secular language before their arguments have any chance of gaining majority support.” Jürgen Habermas, “Faith and Knowlwdge”, in The Future of Human Nature, Cambridge 2003, 109. Only by holding to a teleological philosophy of history can Habermas insist that “postsecular society continues the work, for religion itself, that religion did for myth” and that this work of “translation”, or rational linguistification of the sacred, is the equivalent of “non-destructive secularization” and enlightenment.

[cvii]         Transit 26 (2003/2004).

[cviii]        For this interpretation, see for example M. Nussbaum, The New Religious Intolerance: overcoming the politics of fear in an anxious age (Cambridge, MA: Harvard University Press, 2012).

[cix]         These terms are taken from B. Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge: Polity, 2001), ch. 2.

[cx]          See the powerfully argued critique of the approach in Barry, Culture and Equality, ch. 2. For responses to Barry, see P. Kelly (ed.), Multiculturalism Reconsidered (Cambridge: Polity, 2002).

[cxi]         See the valuable survey in S. Allevi, Conflicts over Mosques in Europe: policy issues and trends (London: Alliance Publishing Trust, 2009).

[cxii]         Allevi, Conflicts over Mosques, p. 45.

[cxiii]        Lukas Reiman in Neue Zürcher Zeitung, 21/10/2009.

[cxiv]        Oskar Freysinger, cited in T. Green, ‘The Resistance to Minarets in Europe’, Journal of Church and State, 52 (2010), p. 637.

[cxv]         Green, ‘Resistance to Minarets’, p. 636.

[cxvi]        P. Freudiger, ‘Kurz-Argumentarium zur Minarettverbots-Initiative’, available at http://www.minarette.ch/downloads/kurz-argumentarium_minarettverbot.pdf.

[cxvii]        Even at federal level, there are a number of different referendum formats that can be used: see W. Linder, Swiss Democracy: Possible Solutions to Conflict in Multicultural Societies, 3rd ed. (Basingstoke: Palgrave Macmillan, 2010), ch. 3.

[cxviii]       What ‘neutrality’ means is a much-debated topic in liberal political theory. For present purposes, the relevant sense of state neutrality is ‘neutrality of treatment’ as explained and defended by Alan Patten in ‘Liberal Neutrality; A Reinterpretation and Defense’, Journal of Political Philosophy, 20 (2012), 249-72.

[cxix]        I do not treat official human rights documents as having canonical status for the understanding of human rights, but they may as in the present case provide a useful starting point for philosophical reflection and interpretation.

[cxx]         I. Brownlie and G. Goodwin-Gill (eds.), Basic Documents on Human Rights, 5th ed. (Oxford: Oxford University Press, 2006), p. 364.

[cxxi]        C. Evans, Freedom of Religion under the European Convention on Human Rights (Oxford: Oxford University Press, 2001), ch. 7, esp. pp. 160-4.

[cxxii]        For a discussion of the nature of such a right, concluding that it must be conceived as a collective rather than individual right, see E. Ceva and F. Zuolo, ‘A Right to a Mosque? Access to Public Space, Religious Freedom and Participatory Goods’ (unpublished).

[cxxiii]       See D. Miller, ‘Grounding Human Rights’, Critical Review of International Social and Political Philosophy, 15 (2012), 407-27; also D. Miller, ‘Personhood versus Human Needs as Grounds for Human Rights’ in R. Crisp (ed.), Griffin on Human Rights (Oxford: Oxford University Press, 2014).

[cxxiv]       There is a carefully nuanced discussion of this issue in A. Eisenberg, Reasons of Identity: A Normative Guide to the Political and Legal Assessment of Identity Claims (Oxford: Oxford University Press, 2009), ch. 5.

[cxxv]       Indeed rather than trying to distinguish between what is essential and what is not, American constitutional doctrine asks whether a government measure imposes a ‘substantial burden’ on religious exercise, and assesses this primarily from the perspective of the individual practitioner: see K. Greenawalt, Religion and the Constitution, vol. 1: Free Exercise and Fairness (Princeton and Oxford: Princeton University Press, 2006), ch. 13. Thus some aspect of religious practice that matters a great deal to the individual in question will qualify even if religious authorities do not require it. Greenawalt defends this focus, but notes that it cannot apply in the same way ‘when claimants ask for an action that would be reasonable only if it affects a larger group’ such as preserving a sacred forest (p. 207).

[cxxvi]       Evans, Freedom of Religion, p. 123.

[cxxvii]      See R. Ahdar and I. Leigh, Religious Freedom in the Liberal State (Oxford: Oxford University Press, 2005); c.f. Eisenberg, Reasons of Identity, ch. 5.

[cxxviii]      Allevi notes that where such applications have been refused, local Muslims have often accepted the outcome, sometimes choosing instead to depict a minaret on the entrance door of the mosque (Allevi, Conflicts over Mosques, pp. 46-7).

[cxxix]       See J. Bloom, Minaret: Symbol of Islam (Oxford: Oxford University Press, 1989), chs. 4-5.

[cxxx]       Bloom, Minaret, pp. 190-91.

[cxxxi]       See D. Miller, ‘Justice, Democracy and Public Goods’ in K. Dowding, R.E. Goodin and C. Pateman (eds.), Justice and Democracy: Essays for Brian Barry (Cambridge: Cambridge University Press, 2004). There the author defends the principle of equal net benefit – the state should endeavour to supply a package of public goods in such a way that each citizen benefits to the same extent compared to a baseline in which no goods are supplied, while conceding that the principle may not be fully realisable in practice, and also that it may not be appropriate for all classes of public goods.

[cxxxii]      See M. Barberis, Populismo digitale. Come Internet sta uccidendo la democrazia, Milano, Chiarelettere, 2020. The author advances a diagnosis of digital populism: today politics is now done on smartphones, with shots of alarmist posts, morning tweets and selfies with voters. The people thus have the illusion of being able to directly influence public affairs, but this disintermediation is nothing but a new mediation. Barberis analyzes the phenomenon in all its aspects, but not only: it indicates specific, constitutional, political and media remedies. Instead of disconnecting from the network, as many are now tempted to do, it is necessary to act like Ulysses with the sirens: to remain closely tied to the tree of rationality.

[cxxxiii]      An interesting case to ponder here is Syndicat Northcrest v. Amselem in which five Jewish occupants of an apartment building in Montreal claimed the right to erect succahs on their balconies for the nine days of the festival of Sukkot, in defiance of their co-ownership agreement which prohibited any edifices being built on balconies. The majority on the Canadian Supreme Court, finding in favour the five, argued that the aesthetic and property-value objections to such temporary structures were not sufficient to outweigh the religious rights of the tenants. For a discussion of the case, see Eisenberg, Reasons of Identity, ch. 5.

[cxxxiv]      This kind of position is defended in D. Miller, ‘Territorial Rights: Concept and Justification’, Political Studies, 60 (2012), 252-68.

[cxxxv]      On the ‘national identity’ side of the debate, see for instance Y. Tamir, Liberal Nationalism (Princeton: Princeton University Press, 1993), chs. 5-6, D. Miller, On Nationality (Oxford: Clarendon Press, 1995), chs. 3-4, and M. Canovan, Nationhood and Political Theory (Cheltenham: Elgar, 1996), ch. 4; on the ‘citizen identity’ side, see for instance J. Habermas, The Inclusion of the Other, ed. C. Cronin and P. De Greiff (Cambridge: Polity, 1998), ch. 4, A. Mason, Community, Solidarity and Belonging (Cambridge: Cambridge University Press, 2000), ch. 5, D. Weinstock, ‘Prospects for Transnational Citizenship and Democracy’, Ethics and International Affairs, 15 (2001), 53-66, A. Abizadeh, ‘Does Liberal Democracy Presuppose a Cultural Nation? Four Arguments’, American Political Science Review, 96 (2002), 495- 509.

[cxxxvi]      W. Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995), ch. 2.

[cxxxvii]     See D. Miller, National Responsibility and Global Justice (Oxford: Oxford University Press, 2007), ch. 8.

[cxxxviii]     D. Miller, ‘Immigrants, Nations, and Citizenship’, Journal of Political Philosophy, 16 (2008), 371-90. A rather similar idea lies behind Kymlicka’s concept of ‘fair terms of integration’: see W. Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship (Oxford: Oxford University Press, 2001), ch. 8.

[cxxxix]      See the careful discussion of this issue in C. Laborde, ‘Political Liberalism and Religion: On Separation and Establishment’, Journal of Political Philosophy, 21 (2013), 67-86. Laborde shows convincingly that Rawlsian political liberalism cannot adjudicate between what she calls ‘moderate separation’ and ‘moderate establishment’. She goes on to argue that the former is required on republican grounds; I disagree, but will not pursue the argument here.

[cxl]         Although formal establishment is less common, the practical relation between church and state in other European countries is far closer to the second model than the first. See J. Klausen, The Islamic Challenge: Politics and Religion in Western Europe (Oxford: Oxford University Press, 2005), ch. 5.

[cxli]         They will do this if they fear that the consequence of disestablishment is to entrench radical secularism instead. For a defence of a pluralised version of religious establishment, see T. Modood, ‘Muslims, religious equality and secularism’ in G. Levy and T. Modood (eds.), Secularism, Religion and Multicultural Citizenship (Cambridge: Cambridge University Press, 2009).

[cxlii]        See M. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2008), Introduction. Nussbaum concedes, however, that in some European countries with ‘few religious differences that inspire real passion’ it may be acceptable to permit an established church to exist for historical reasons (p. 13).

[cxliii]        It is worth underlining here that the Swiss decision took the form of a prohibition – a restriction of the freedom of one particular religious group – and this will be harder to justify than a policy of providing aid in non-neutral fashion. Thus a state might decide to use tax revenues to cover part of the costs of restoring the fabric of churches but decline to do the same for synagogues or mosques, in the name of national identity, but although this is a violation of the equality principle, it is less discriminatory in its impact than a building ban.

[cxliv]        As to the Italian scenario: see Giuseppe Sciortino, Rebus immigrazione, Bologna, Il Mulino, 2017, pp. 176. Immigration is a problem present on the lips of many but in a clear and defined way perhaps in the mind of few, given the huge number of interpretations and solutions feared in this regard, often without any basis: from total rejection to unconditional reception.

            Giuseppe Sciortino, professor of Sociology at the University of Trento, in his latest book Rebus immigration tries to shed light on a theme, that of immigration, which he considers so difficult but not impossible to deal with. The treatment, alternating a more general analysis in the first chapters with a more specific one and linked to a chronological scan in the remaining and most part of the text, does not give a primary weight to the solutions, although important, of the author on the subject; rather it aims to make people understand the reason for the rebus, and the modalities of its manifestation.

            The thesis supported by Sciortino, with a simple but not simplistic syntax and a sarcastic and lashing language, almost like a pamphlet, is that immigration is a puzzle because since the mid-sixteenth century there has been one ius emigrandi but not one ius immigrandi. Along the pages of the text, the author will implicitly indicate to the reader what in his opinion are the causes of this lack: on the one hand the definition, starting from the French Revolution, of the modern concept of citizenship; on the other, the dynamics of the work that have taken place over time.

            Citizenship and work will in fact determine all the choices made by men and states in terms of immigration, directing them between internal liberalism-external liberalism, opening-closing, immigrant-refugees, thematic nuclei of the entire narrative.

            Since the time of the Peace of Augusta in 1555, with the affirmation of the principle of cuius regio eius religio, to this day the presence of an ius emigrandi but not an ius immigrandi has been constant (making the exit is a right but the enter a concession), with different basic reasons. In modern Europe, as well as in medieval Europe, the mobility of peoples was not a rare or denied phenomenon, being the rulers of the time constantly looking for arms for agriculture, especially after particularly bloody events such as the religious wars of the 16th century and 17th century. If anything, it was the emigration, for which compensation for all those orphaned rulers of their subjects was often provided.

            The migrants (including the Huguenots post-Edict of Fontainebleau of 1685, the first refugees in the strict sense of the story for the author) did not cause major concerns: often economically affluent, these “had the aim of not merging with the local population of the new state , asking the sovereigns conditions that would allow the reproduction of a distinct social and legal identity” (p. 43). Exception made in some situations for some categories of people, including the Jews as non-Christians. Currently, however, in the liberal states (precision is a must as you will see), although only 3.3% of the population is on the move (of which 0.5% is made up of refugees, a significant number – see: Abel and Sander , Quantifying global international migration flows [2014]), there is a cyclical impatience of the public opinion on the matter, immigrants being always in a greater number than citizens are willing to tolerate.

            However, this dissatisfaction is not present in authoritarian states, where the share of the non-native population can reach 85% thresholds as in Qatar. For the author, this is due both to the lack of freedom of protest in these situations and to the nature of the reception: if the foreigner is placed in subordinate conditions in authoritarian states, running the constant risk of being expelled ipso facto at the behest or whim of the local satrap; instead in liberal democratic states it can take advantage of a long series of rights and guarantees. In essence: authoritarian states can afford a less restrictive policy because there is a caste system, not unlike that existing in medieval and modern Europe, where the autocrat is the only one to determine who enters. Liberal-democratic states, founded on the concept of equality of men, must instead be more restrictive by necessity because they tend to include foreigners: in many cases only partial; in some total with the recognition of citizenship.

            While not flattening the immigration rebus on a single dynamic of possible or non-recognition of citizenship, Sciortino pays close attention in his writing to the definition of the same in the years of the French Revolution, when the modern opposition between citizen and foreigner arises. If in its first cosmopolitan phase the Revolution tended not to create any difference between these categories, granting the foreign revolutionaries the same rights as the French ones for the pélerins de la libertè; later, with a national-republican turn required by the need to establish a new army, which can no longer be assembled as in the past with mercenaries, things change: in fact, only those who serve in the armée will be citizens.

            The consequences, already prophesied by Rousseau, are tangible: if the citizen is asked for more (in the duties) than the foreigner, it is logical to give him something more (in the rights) to which the foreigner cannot access if not rarely. During the Revolution, the figure of the emigré was born, a new type of emigrant no longer religious but political, belonging to transnational social bodies (clergy, nobility) and generally stabilized in a neighboring state in the hope of an imminent restoration. It will be precisely these new emigrants, French become étrangers, extraneous to the nation as enemies of the Revolution and ready to plot with all those foreign anti-republican forces, to feed the image of the foreigner as an enemy of the people. In the centuries to come, work, in an increasingly globalized world, will be responsible for the maturation and complication of the immigration puzzle. In the nineteenth century, due to the first massive forms of economic inequality induced by the Industrial Revolution, the image of the migrant changed again: no longer, with the exception of patriots from all over Europe, a man who moves away from his land to preserve his being (Protestants, clerics, nobles) but an individual who emigrates to change it, who moves to live better and earn more. The repercussions are evident: by resuming Weber (p. 67) “migration leads to a break from the patriarchal domestic and economic community and from the power relations of the starting areas”; the migrant becomes the one who, for example, no longer takes his hat off when the lords pass by. The constant demographic increase makes immigration, in Nitti’s words, “a powerful safety valve against class hatred” for the starting states but a problematic one for the welcoming ones, ready to close the borders in harmony with ethnic motivations and nationalistic (pp. 79-80).

            In these realities, the main anti-immigration demonstrations come from the working classes, being the foreign worker generally paid less or used as a strikebreaker. The major western states try to overcome the problem by imposing equal pay for all workers, with the aim of making foreign work complementary but not a substitute for indigenous work. This measure, for the author, however, implies not only to request the same duties from the foreign worker (in the mountain hours of activity) but also the same rights (in pay and social assistance) as a native worker. Doing so saves the union between internal liberalism (protecting the citizen from the abuses of power) and the external one (same practice for foreigners present in the territory) but it feeds the image of the parasitic migrant of society, who enjoys the same rights of a citizen despite not often being such yet.

            Contrary to Hobsbawn’s thesis, for Sciortino the twentieth century is instead, at least on the immigration side, a long century. If with the First World War many of today’s control tools (visas, permits, detention centers) and the discretion, recognized by law, for each state to fix autonomously the conditions of entry and permanence of foreigners emerge; with the Second, the bearer of a huge excess population (stateless, exiled, veterans of the Shoah), the international right to asylum (individual, not collective) was born, sanctioned by the Geneva Convention of 1951. It, pivoting on the principle of non-refoulement, of non-refoulement, defines the refugee as someone who because of his political opinions or belonging to a particular social group has a well-founded fear of persecution (pp. 107-109).

            These tools will bring with them a certain and desired ambiguity: a mass of potential refugees will come to Europe’s doors, however as migrants, potential workers, being the economies of the Old Continent in the glorious thirty years in the constant search for labor in cheap. See the French case (where the Algerian labor force, of French citizenship if born before the independence of 1961, prefers the low-cost and immediately settable Mediterranean one) or the German case (with the celebrations in Cologne in 1964 for the arrival of the millionth foreign worker). When, however, the positive joint in the seventies end up being affected, these foreign workers will be the least qualified; who, however, although they can no longer contribute to the welfare of the state of residence, will continue to receive forms of assistance since they have become denizens, semi-citizens for the work done for years. Once again for the author, the just defense of the combination of internal and external liberalism feeds the image of parasitic immigrants in society; who from now on will almost always present themselves as refugees to enter Europe.

            One of the most interesting aspects of the text, written by Sciortino with clear exposition and evident human transport (p. 164), is the description made in the concluding chapters of the “gentle monster” (the expression is by H. Enzensberger, who coined to define the EU as a whole), sum of the measures taken in recent decades by the EU to tackle the immigration node and culminating in the Dublin Convention (1990 but revised in 2003 and 2013). These measures, including inter alia the establishment of Eurodac (fingerprint database of all asylum seekers and irregular immigrants) and robust actions against the facilitation of illegal immigration, will allow respect for international asylum law but they will make it difficult to get to Europe to get it; much more difficult to choose where to ask; difficult to achieve it as perennial protection (p. 130).

            The beauty of this “monstrous creation” will disappear when the main transit countries of the migratory routes (especially Libya) with the outbreak of the Arab Springs are reduced to pale memories of state entities, while at the same time making some structural differences emerge strongly in within the EU. On the one hand, the countries of Northern Europe that have long been able to reform their economies and are not eager for cheap and unskilled labor; a reality where the often unemployed foreigner is a negative voice on the welfare budget, constantly calling for containment of asylum seekers and ready to push the other states of the Union to improve their welcome (not to be no longer the only sought-after destinations). On the other, the countries of Mediterranean Europe, with fully unreformed economies and a large demand for low-skilled foreign workers (see Cvajner, The presentation of Self in emigration: Eastern European women in Italy [2012]; see also Sciortino, Immigration in Italy: Subverting the logic of welfare reform? [2013]). This resulted in a general short circuit since the latter states, for the Dublin agreement (“the first safe country crossed by the refugee must grant him the right to asylum”), welcome people who are eager but unable to go to the North; which obtain the maximum result while contributing minimally to border controls and to the planned redistribution of refugees.

            Despite this, in the face of the cretineries of both the muscular populism of the right and that of beautiful souls on the left (“proletarian internationalism revised by John Lennon”, p. 153) the gentle monster appears to Sciortino as the only answer to the immigration rebus; of course, by amending it from its limits: in Europe looking for a collaboration with neighboring transit countries as well as really redistributing refugees and the costs of border checks between member states; in Italy by tackling the problem structurally and not in an emergency (by checking the beds, the procedures for applying for asylum and the related assessment times); cutting off illegal work with the action of the competent inspectors (since once the recent economic crises have passed, irregular flows of foreign workers will return); granting citizenship to those who grew up in the Peninsula and decent places of worship for the Muslim population; selecting refugees directly in the camps (this measure actually leaves doubts: wouldn’t you “risk” choosing only the best?).

            At the moment these proposals appear difficult but not impossible to implement: perhaps only, as Sciortino reiterated, a competent political class that has the ability and the courage to do so.

[cxlv]        See http://hudoc.echr.coe.int/sites/eng-press/Pages/search.aspx#{“itemid”:[“001-115881”]} [Accessed 29 April 2013].

[cxlvi]        Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge: Polity, 2000), p. 45.

[cxlvii]       ECHR, 1952, Art. 9). European Convention on Human Rights (1950). Council of Europe. Available at <http://www.echr.coe.int>.

[cxlviii]       See for example David Miller, ‘Liberalism, Equal Opportunities and Cultural Commitments’ in Paul Kelly (ed.), Multiculturalism Reconsidered (Cambridge: Polity, 2002): 45-61; Jonathan Quong, ‘Cultural Exemptions, Expensive Tastes and Equal Opportunities’ Journal of Applied Philosophy 23 (2006) 53-71; Paul Bou-Habib, ‘A Theory of Religious Accommodation’ Journal of Applied Philosophy 23 (2006): 109-26.

[cxlix]        Martha Nussbaum, Liberty of Conscience (New York: Basic Books, 2008).

[cl]          Nussbaum, Liberty of Conscience, p. 169.

[cli]          Interview in the Daily Mail 13 July 2008.

[clii]         Paul Bou-Habib, ‘A Theory of Religious Accommodation’ Journal of Applied Philosophy 23 (2006): 109-26.

[cliii]         Bou-Habib, ‘A Theory of Religious Accommodation’, pp.116-7.

[cliv]        See Mauro Barberis, Non c’è sicurezza senza libertà. Il fallimento delle politiche antiterrorismo, Bologna, Il Mulino,  2017, pp. 136. What if all we know about security is fake? This is the question that the book puts before us, in its stringent analysis of the anti-terrorism policies adopted by the main western powers since September 11th, 2001. Subjected to the controls of adequacy, necessity and proportionality, commonly used by the great constitutional and international courts, most of the measures against terrorism prove to be useless or counterproductive. The same irrationality, moreover, also pervades most of the current opinions regarding emergency, public order and self-defense.

[clv]         John Rawls, A Theory of Justice (Oxford: Oxford Univeristy Press, 1999 revised edn.), Sect. 67.

[clvi]         Thomas Hill Jnr., ‘Self-Respect Reconsidered’ in his Autonomy and Self-Respect (Cambridge: Cambridge University Press 1991), p. 22.

[clvii]        See http://news.bbc.co.uk/1/hi/england/oxfordshire/8621703.stm [Accessed 29 April 2013].

[clviii]       As to the Italian legal debate, see: C. Volpato (2019), Le radici psicologiche della disuguaglianza, Roma-Bari, Laterza. How do inequalities feed? What psychological processes prevent those in disadvantaged conditions from rebelling? And who dominates, how does he justify his privilege to himself and to others? A new and original key to fully understand one of the central issues of our time. Inequalities are among the main causes of collective unhappiness: they sow mistrust, weaken social cohesion and put democracy at risk. Why, then, are there few and weak attempts to counter them? This book examines how inequalities are constructed, concealed, accepted, interpreted, contrasted. Explore the game of the mechanisms of acquittal or blame respectively of the dominant and the dominated following two different perspectives: the first dwells on the cognitive and motivational processes that ensure that the privileged, who benefit from inequality, are convinced of having the ‘right stuff ‘and to deserve their advantages. The second reconstructs the processes of those who suffer from inequality and accepts it, internalizing it.

[clix]         See http://www.bailii.org/uk/cases/UKHL/2006/15.html [Accessed 29 April 2013].

[clx]         See http://news.bbc.co.uk/1/hi/england/london/7087346.stm [Accessed 29 April 2013].

[clxi]        A very updated book is the following: M. Ambrosini-P. Naso-C. Paravati (2019), Il Dio dei migranti. Pluralismo, conflitto, integrazione, Il Mulino, Bologna. The historical fact is that no migratory movement has ever been reversible. The migratory processes write the paths of the table and conviviality with the indelible pen of the maternal kitchens; families that have never guessed who came to dinner since the times of the Lombards mingle; they interweave the vocabularies of Arabs and Normans, insert barbaric culture into the Romanistic conception of marriage, remodel mentalities. And therefore the most recent migratory process has brought back to our religious landscape physiognomies and looks to the sky that are destined to remain forever: even when the democratic forms that our pride believes to be eternal will have been perfected or eroded by the wind of time.

            How many imams are there in Italy? How do they prepare? How do the different Christian churches live in our metropolis? What are the activities and actions carried out by the Romanian Orthodox Church, which in Italy has a basin of over one million people? The volume presents three unpublished investigations on the imams of Italian mosques, on the Romanian Orthodox and on the different faces of Christianity among Milanese immigrants. Three hitherto unexplored paths, which show how immigration constitutes one of the most incisive vectors of a post-secularization process and a new movement of religious ferment.

            See also M. Ambrosini, (2005), Sociologia delle migrazioni, Il Mulino, Bologna. (The author – Professor of General Sociology and Sociology of Migration Processes at the Faculty of Education of the University of Genoa -, presents with this book an introduction to an increasingly frequent discipline in university curricula. While insisting on the socio-economic dimension, the author has given the necessary importance to those aspects of the problem that concern the family, the education of minors, migration policies, the problems of deviance and xenophobia). Id., (2008), Un’altra globalizzazione: la sfida delle migrazioni internazionali. (Much has been said in recent years about economic, political and cultural globalization. Indeed, there is some tiredness in a debate subject to the inevitable cycle of intellectual fashions. One aspect, however, has not yet been explored as it deserves: while it is now commonplace to preach the free movement of capital, goods, media products and ideas, we tend to think that borders should remain closed to people, or at least to those that move from south to north in the dramatic geography of planetary inequality. This closure is countered by the idea of emigration as a response of the dispossessed to the overbearing globalization of dominant interests. Suggestive interpretation, which however risks leaving in the shadows the fact that migrants are required by developed economies to fill the gaps in the “jobs of the five Ps”: precarious, heavy, dangerous, underpaid, socially penalized. This study takes a point of view that considers migrants as actors of globalization, exploring the complex web of ties that cross borders, influence the societies of origin, reshape the identity of the migrants themselves and also that of the countries that welcome them). Id., (2017), Migrazioni, Pixel Edit.; Id., (2018), Irregular immigration in Southern Europe: actors, dynamics and governance, Palgrave Macmillan.

[clxii]       As to culture and ethics of immigration: Carens, J. (2014). “An overview of the ethics of immigration”, Critical Review of International Social and Political Philosophy, Volume 17, Issue 5, Special Issue: New Challenges in Immigration Theory; Id., (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; Id., (2013). The ethics of immigration. New York: Oxford University Press.

[clxiii]       Laborde, C. (2017). Liberalism’s Religion, Cambridge, MA: Harvard University Press, 344 pp. This book offers the first extensive engagement with religion from liberal political philosophers. The volume analyzes, from within the liberal philosophical tradition itself, the key notions of conscience, public reason, non-establishment, and neutrality. Insofar as the contemporary religious revival is seen as posing a challenge to liberalism, it seems more crucial than ever to explore the specific resources that the liberal tradition has to answer it. Disaggregating religion into its various dimensions, as Laborde does, has two clear advantages: first, it shows greater respect for ethical and social pluralism by ensuring that whatever treatment religion receives from the law, it receives because of features that it shares with nonreligious beliefs, conceptions, and identities. Second, it dispenses with the Western, Christian-inflected conception of religion that liberal political theory relies on, especially in dealing with the issue of separation between religion and state. As a result, Liberalism’s Religion offers a novel answer to the question: can Western theories of secularism and religion be applied more universally in non-Western societies?

[clxiv]       Laborde, C. (2017), cit., p. 234.

[clxv]        As to the French scenario: Bolzman, C. (2007). Migrants au quotidien: les frontaliers. Pratiques, représentations et identités collectives, Zurich, Éditions Seismo, 264; see also the accurate analysis carried out by Delpla, I. (2014). «Cosmopolitisme ou internationalisme méthodologique», Raisons politiques, 2014/2 N° 54, 87-102.

[clxvi]       Laborde, C. (2017), cit., p. 237.

[clxvii]       Locke, J. (1689). Two Treatises of Government. Ed. Peter Laslett. Cambridge: Cambridge University Press (1988), 137.

[clxviii]       See also Laborde, C. Critical Republicanism. The Hijab controversy and political philosophy, Oxford: Oxford Political Theory, 2008. The first comprehensive analysis of the philosophical issues raised by the hijabcontroversy in France, this book also conducts a dialogue between contemporary Anglo-American and French political theory and defends a progressive republican solution to so-called multicultural conflicts in contemporary societies. It critically assesses the official republican philosophy of laïcité which purported to justify the 2004 ban on religious signs in schools. Laïcité is shown to encompass a comprehensive theory of republican citizenship, centered on three ideals: equality (secular neutrality of the public sphere), liberty (individual autonomy and emancipation) and fraternity (civic loyalty to the community of citizens). Challenging official interpretations of laïcité, the book then puts forward a critical republicanism which does not support the hijab ban, yet upholds a revised interpretation of three central republican commitments: secularism, non-domination and civic solidarity. Thus, it articulates a version of secularism which squarely addresses the problem of status quo bias – the fact that Western societies are historically not neutral towards all religions. It also defends a vision of female emancipation which rejects the coercive paternalism inherent in the regulation of religious dress, yet does not leave individuals unaided in the face of religious and secular, patriarchal and ethnocentric domination. Finally, the book outlines a theory of immigrant integration which places the burden of civic integration on basic socio-political institutions, rather than on citizens themselves. Critical republicanism proposes an entirely new approach to the management of religious and cultural pluralism, centred on the pursuit of the progressive ideal of non-domination in existing, non-ideal societies.

            Moreover, see: Id., Pluralist thought and the State in Britain and France, 1900-25, Palgrave Macmillan, 2000. This is the first comparative study of early twentieth-century French and British schools of political pluralism. A wide-ranging survey of the works of thinkers such as JN Figgis, GDH Cole, Harold Laski, Edouard Berth, Maxime Leroy and Léon Duguit, Pluralist Thought and the State in Britain and France, 1900-25 is a major contribution both to the study of national tradition of political thought and to the understanding of relationships between state, groups and individuals in democratic societies. Cécile Laborde has written a remarkable comparative analysis of how six leading British and French writers formulated pluralist ideas in the first quarter of the twentieth century. It embeds their striking views in their contemporary context but is particularly welcome at a time when pluralism is making a comeback in France. Couched in a clear and lively style, it merits clear reading on both sides of the Channel.

[clxix]       Laborde, C. (2017), cit., p. 58.

[clxx]        In the Oxford Dictionary of Quotations. New York, NY: Oxford University Press, 1999.

[clxxi]        Krastev, Ivan. “A Greek Farce, Then Gloom”. In New York Times. July 16th, 2015. <http://www.nytimes.com/2015/07/17/opinion/a-greek-farce-then-gloom.html?smid=fb-share&_r=0>.

[clxxii]       Nussbaum, Martha C. Political Emotions: Why Love Matters for Justice. Cambridge, MA: The Belknap Press of Harvard University, 2013.

[clxxiii]       Although emotions play a role in all types of political regimes, they will be reviewed in light of attaining political liberalism. As put forward by John Rawls, liberalism denotes a state, in which political principles are not built upon any type of comprehensive doctrine about the meaning and purpose of life, but a state, in which a commitment to equal liberties and rights and guarantees for a number of social and economic entitlements exist. These definitely limit the ways, in which public emotions can be manifested and cultivated at the level of policy-makers and ordinary citizens.

[clxxiv]      Rawls, John. Theory of Justice. Cambridge, MA: Belknap Press of Harvard University, 1971. N.pag. Ipad File, and Id., Political Liberalism. New York, NY: Columbia University Press, 1993/1996, N.pag. Ipad File.

[clxxv]       Berlin, Isaiah. “The Counter-Enlightenment” in The Proper Study of Mankind: An Anthology of Essays. New York: Vintage Classics, 2013. <http://berlin.wolf.ox.ac.uk/published_works/ac/counterenlightenment.pdf>, p. 101.

[clxxvi]      Kuran, Timur and Cass Sunstein. “Availability Cascades and Risk Regulation”. Stanford Law Review 51 1999, pp. 683-768.

[clxxvii]      Again, elaborated in A Theory of Justice (1971) and Political Liberalism (1993).

[clxxviii]     Damasio, Anthony. Descartes’ Error: Emotion, Reason, and the Human Brain. New York, NY: Penguin Books; Reprint edition, 2005, and Dennett, Daniel. Consciousness Explained. New York, NY: Back Bay Books, 1992.

[clxxix]      Colapinto, John. “Lighting the Brain: Karl Deisseroth and the optogenetics breaktrough.” The New Yorker. May 18th, 2015, pp.75-83.

[clxxx]       Kahneman, Daniel. Thinking, Fast and Slow. Penguin Books, New York, NY: 2012.

[clxxxi]      Hume, David. A Treatise of Human Nature. Ed. by L.A. Selby-Bigge. Oxford, UK: Clarendon Press, 1896, p. 217. <http://michaeljohnsonphilosophy.com/wp-content/uploads/2012/01/5010_Hume_Treatise_Human_Nature.pdf>.

[clxxxii]      Darwin, Charles, The Expression of the Emotions in Man and Animals, London, UK: Harper Collins, 1998 [1896].

[clxxxiii]     These seven physical and cognitive indicators are taken from John Elster. Alchemies of the Mind: Rationality and the Emotions. UK: Cambridge University Press, 1999.

[clxxxiv]     James, William, 1884. “What is an Emotion?” Mind, 9: pp.188–205.

[clxxxv]      For instance, the emotion of anger occurs by first undergoing bodily changes and then becoming aware of them.

[clxxxvi]     de Sousa, Ronald, “Emotion”, The Stanford Encyclopedia of Philosophy (Spring 2014 Ed.), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/spr2014/entries/emotion/>.

[clxxxvii]     Hume, David. An Enquiry Concerning the Principles of Morals. 1751. Ed. by Tom L. Beauchamp. Oxford Philosophical Texts. New York: Oxford University Press, 1998, p.67.

[clxxxviii]    Ibid. Elster, p.1.

[clxxxix]     Ekman, Paul. Emotions in the Human Face, New York, NY: Pergamon Press, 1972.

[cxc]         Ibid. de Sousa.

[cxci]        Feeling sympathy appears to start as early as in six-month old infants. In one study infants watched as a climber was hiking up a hill and another figure was either aiding him or derailing his efforts. The infants expressed signs of approval at the former and disapproval at the latter. In Mlodinow, Leonard. Subliminal: How Your Unconscious Mind Rules Your Behavior. New York, NY: Vintage Books, A Division of Random House, Inc., 2013.

[cxcii]        Similarly, fear has often been detected in very young babies and is related to their inability to take care of themselves and ensure their comfort. Ibid., Nussbaum.

[cxciii]       Shklar Judith. N. The Liberalism of Fear. Ed. Nancy L. Rosenblum. Cambridge, MA: Harvard University Press, 1989.

[cxciv]       Gould, Deborah B. Moving Politics: Emotion and ACT UP’s Fight against AIDS. Chicago: University of Chicago Press, 2009.

[cxcv]       Thompson, Simon and Paul Hoggett, Eds. Politics and the Emotions: The Affective Turn in Contemporary Political Studies. New York, NY: Continuum International Publishing Group, 2012, p.103.

[cxcvi]       Ibid. Thompson, p.103.

[cxcvii]      Ibid. Thompson, p.106.

[cxcviii]      Jasper, James, “The emotions of protest: affective and reactive emotions in and around social movements”, Sociological Forum, 1998, 13(3), pp. 397 – 424. The discussion is also found in Ibid. Thompson, p.3.

[cxcix]       Williams, R., Marxism and Literature. Cambridge: Cambridge University Press, 1977. In Ibid. Thompson, p. 4.

[cc]          Marcus, George. The Sentimental Citizen: Emotion in Democratic Politics. University Park: Pennsylvania State University Press, 2002.

[cci]         Lakoff, George. The Political Mind. New York, NY: Penguin Books, 2009.

[ccii]         Goodwin, J., Jasper, J. and Poletta, F., Eds. Passionate Politics: Emotions and Social Movements. Chicago: Chicago University Press, 2001.

[cciii]        Ibid. Nussbaum.

[cciv]        Ibid. Thompson and Hoggett, p.6.

[ccv]         Emotions are a powerful factor in determining the outcomes of constitution-making assemblies. See Sajo, Andras. Constitutional Sentiments. New Haven, CO: Yale University Press, 2011, and Elster, Jon. The Political Psychology of Constitution-Making. <https://www.sss.ias.edu/files/pdfs/Rodrik/workshop%2014-15/Elster-CM_2015.pdf>.

[ccvi]        Frazer, Michael L. The Enlightenment of Sympathy: Justice and the Moral Sentiments in the Eighteenth Century and Today. New York: Oxford University Press, 2010.

[ccvii]        Head, N. “A politics of empathy: encounters with empathy in Israel and Palestine”. Review of International Studies, 2015.

[ccviii]       See Sardo, A., Emotivism is not dead. Relation held during the Convegno “Interpretazione giuridica e teoria del diritto. Intorno a Riccardo Guastini”, held on 21-22 October 2016, University of Genoa (Italy), Faculty of Law.

[ccix]        HAGEN SCHULZ-FORBERG & BO STRÅTH, THE POLITICAL HISTORY OF EUROPEAN INTEGRATION: THE HYPOCRISY OF DEMOCRACY-THROUGH-MARKET 43 (2010).

[ccx]            Namely, the Währungsunion-Finanzstabilisierungsgesetz, (Monetary Union Financial Stabilisation Act), which grants the authorization to provide aid to Greece, and the Gesetz zur Übernahme von Gewährleistungen im Rahmen eines europäischen Stabilisierungsmechanismus, (Act Concerning the Giving of Guarantees in the Framework of a European Stabilisation Mechanism).

[ccxi]             Judgment of Sept. 7, 2011 at paras. 121–23.

[ccxii]            Id. at para. 124.

[ccxiii]          Id. at paras. 130–32.

[ccxiv]          Id. at para. 116 (referencing the decisions on Maastricht [BVerfGE 89, 155, 175] and Honeywell [BVerfGE 126, 286, 302 et seq.]); in the Maastricht decision, see also paras. 129 & 137 on commitment to the stability concept.

[ccxv]       Bundesverfassungsgericht [BVerfG – Federal Constitutional Court], Case No. 2 BvR 2661/06 (July 6, 2010), https://www.bundesverfassungsgericht.de/entscheidungen/rs20100706_2bvr266106en.html.

[ccxvi]          Judgment of Sept. 7, 2011 at para. 129. The court adds: “In this connection, particular mention should be made of the prohibition of direct purchase of debt instruments of public institutions by the European Central Bank, the prohibition of accepting liability (bailout clause) and the stability criteria for sound budget management (Articles 123 to 126, Article 136 TFEU).” Id. This remark attracted considerable attention but has not been taken too seriously by the ECB.

[ccxvii]      Id. at para. 98.

[ccxviii]      Mattias Ruffert, Die europäische Schuldenkrise vor dem Bundesverfassungsgericht – Anmerkung zum Urteil vom 7. September 2011, EUROPARECHT 842, 844 (2011).

[ccxix]       Judgment of Sept. 7, 2011 at para. 109.

[ccxx]        Id. at para. 116.

[ccxxi]       See Daniel Thym,  Annotation to GCC, Judgment of 7.9.2011, 66 JURISTENZEITUNG 1015 (2011).

[ccxxii]      Kukathas C. (1997), “Survey Article: Multiculturalism as Fairness: Will Kymlicka’s Multicultural Citizenship”, in Journal of Political Philosophy, Vol. 5 (4), pp. 406–427.

[ccxxiii]      See AGAMBEN, G. (1995), Homo sacer: il potere sovrano e la nuda vita, Einaudi, Torino; AUDIER, S. (2008), Le Colloque Lippmann. Aux origines du “néolibéralisme”, Le Borde de l’Eau, Lormont; Id., (2012), Néo-libéralisme(s). Un archeologie intellectuelle, Grasset, Paris; Id., (2014), Foucault, le Néolibéralisme et nous, Grasset, Paris; BARRY, A. & OSBORNE, T. & ROSE, N. (1996) Foucault and Political Reason, Chicago University Press, Chicago, Illinois; BAZZICALUPO, L. (2006), Il governo delle vite. Biopolitica ed economia, Laterza, Bari-Roma; Id., (2010), Biopolitica. Una mappa concettuale, Carocci, Roma; BECKER, G. (1964), Human capital: a theoretical and empirical analysis, with special reference to education, National Bureau of Economic Research, NY; Id., (1974), Essays in the economics of crime and punishment, National bureau of economic research, NY; Id., (1976), The economic approach to human behavior, Chicago University Press, Chicago, Illinois; Id., (1981), A treatise on the family, Harvard University Press, Cambridge, Massachusetts; BECKER, G. & STIGLER, J. (1977), De Gustibus Non Est Disputandum, in “The American Economic Review”, Vol. 67, No. 2 (March 1977), pp. 76-90; BONNAFOUS-BOUCHER (2011), Un libéralisme sans liberté: pour une introduction du terme “libéralisme” dans la pensée de Michel Foucault, L’Harmattan, Paris; BURCHEL, G. & GORDON, C. & MILLER P. (1991), The Foucault Effect: Studies in Governmentality, Chicago University Press, Chicago, Illinois; CALDWELL, B., (2004), Hayek’s Challege. An intellectual Biography of F. A. 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(2010), Liberalismo delle regole: genesi ed eredità dell’economia sociale di mercato, Rubbettino, Soveria Mannelli; FOUCAULT M. P. (1975), Surveiller et punir: naissance de la prison; Id., (1976), Historie de la Sexualité, I. La volontè de Savoir, Gallimard, Paris; Id., (1977), Microfisica del Potere. Interventi politici, a cura di A. Fontana e P. Pasquino, Einuadi, Torino; Id., (1981), Omnes et singulatim: Towards a Criticism of Political Reason, Université de Stanford, 10 et 16 Octobre 1979, in “The Tanner Lectures on Human Values”, McMurrin Ed., University of Utah Press, Salt Lake City, pp. 223-254; Id., (1982), The Subject and the Power, Chicago University Press, Chicago, Illinois; Id., (1984a), Un’estetica dell’esistenza. Intervista con A. Fontana, in “Le Monde”, July 1984, in FOUCAULT, (1994), Tome IV; Id., (1984b), L’ethique du souci comme pratique de la liberté, interview by H. Becker, R. Fornet-Bétancourt and A. Gomez-Muller, January 1984, in “Concordia. Revista international de filosofia”, n. 6, December 1984, pp. 99-116, in FOUCAULT (1994), Tome IV; Id., (1984c), Michel Foucault, an Interview: Sex, Power and the Politics of Identity, interview by B. Gallagher and A. Wilson, Toronto, June 1982, in “The Advocate”, n. 400, August 1984, pp. 26-30, in FOUCAULT (1994); Id., (1988), Techonologies of the Self. A seminar with Michel Foucault, University of Massachussetts Press, Amherst; Id., (1990), Qu’est-ce que la critique? Critique et Aufklärung, publication Bulletin de la société française de philosophie, 84ème année, n. 2, Avril-Juin; Id.,  (1994), Dits et écrtis, Tomes I-IV, Gallimard, Paris; Id., (1997), Il faut défendre la société. Cours au Collège de France (1975-1976), Gallimard, Paris; Id., (2001), Hermeneutique du Sujet. Cours au collège de France (1981-1982), Gallimard, Paris; Id., (2004a), Sécurité, territoire, population. Cours au Collège de France (1977-1978), Gallimard, Paris; Id., (2004b), La Naissance de la Biopolitique. 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Lippmann and Hayek on Economic Planning, in “Journal of the History of Ideas”, vol. 73, n. 1; INFANTINO, L. (1998), Individualism in Modern Thought: From Adam Smith to Hayek, Routledge, London; Id., (2013), Potere. La dimensione politica dell’azione umana, Rubbettino, Soveria Mannelli; LEPAGE, H. (1978), Demain le capitalisme, Le livre de poche, Paris; LEONI, B. (1961), Diritto e politica, in LEONI (2004); Id.,  (2004), Il diritto come pretesa individuale, Liberilibri, Macerata; LILLA, M. (2003), The Reckless Mind: Intellectuals in Politics, New York Review Books, NY; MASALA, A. (2003), Il Liberalismo di Bruno Leoni, Rubbettino, Soveria Mannelli; Id., (2012), Crisi e rinascita del liberalismo classico, Edizioni ETS, Pisa; MARCHETTI, J. (2015), Mercato, potere e libertà. Un percorso liberale tra Hayek e Foucault, in “Materiali per una storia della cultura giuridica”, Il Mulino, Bologna, a. XLX, n. 1, June 2015, pp. 235-264); MARZOCCA, O. (2001), Biopolitica e liberalismo. 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Leeson, ed. by, Hayek: a Collaborative Biography, Palgrave MacMillan, London; SORRENTINO, V. (2012), Biopolitica, libertà e cura. Saggio su Michel Foucault, Aracne, Roma; VANGERG, V. J. (2006), L’école de Friburg: Walter Eucken e l’ordoliberalisme, in P. NEMO & J. PETITOT (2006), pp. 911-936; ZAMORA, D. (2014), by, Critiquer Foucault. Les années 1980 et la tentation néolibérale, Aden, Bruxelles, 2014; ZANINI, A (2010), L’ordine del discorso economico. Linguaggio delle ricchezze e pratiche di governo in Michel Foucault, Ombre Corte, Verona.

A Theory of Citizenship Rights. Formal Membership in the Framework of (in)determinability of European Union Values

«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. Histoire du suffrage universel en France, Gallimard, Paris; Schade, H. (1995) ‘The Draft European Convention on Nationality’, in Austrian Journal of Public and International Law, vol. 49, n. 2, pp. 99-103; Scott, A., Bee, C., Scartezzini, R. (2008) ‘Special Issue of European Societies – Cultural Spaces in Europe. Editors’ Introduction’ in European Societies, vol. 10, n. 2, pp. 143-145; Shaw, J. (2007) The Transformation of Citizenship in the European Union. Elctoral Rights and Restructuration of Political Space, Cambridge University Press, Cambridge; Sherwin-Withe, A.N. (1939) The Roman Citizenship, Clarendon Press, Oxford;  Sills, D. (1968) ‘Citizenship’, in International Encyclopedia of the Social Sciences, Macmillan, New York; Turner, B.S. (ed.) (1993) Citizenship and Social Theory, Sage, London; Verwilghen, M. (1999) ‘Confict de nationalités. Plurinationalité et apatridie’, in Recueil des cours de l’Academie de droit international, vol. 277, Martinus Nijhoff, Den Haag.

[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? Les frontières, État, le peuple, La découverte, Paris 2001; Id., Droit de cité, PUF, Paris 2002; Id., Citizenship, Basic Books, Cambridge 2012; Balibar E., Wallerstein I., Race, Nation, Classe, Éditions La Découverte, Paris 1988; Barbalet J.M., Citizenship, Rights, Struggle and Class Inequality, Open University Press, Milton Keynes 1988;   Barnes J., Aristotle and Political Liberty, in G. Patzig (ed.), Aristoteles’ ‘Politik’, Vandenhoeck & Ruprecht, Göttingen 1990; Basdevant J. (ed.), Dictionnaires de la terminologie du Droit international, Sirey, Paris 1960; Bastide S., L’affaire Nottebohm devant la Cour Internationale de Justice, «Revue critique de droit international privé», 45, 1956; Bauböck R., Citizenship and National Identities in the European Union, «Jean Monnet Working papers», now in Antalosvky E., Melchior J., Puntscher-Riekmann S., (eds., Integration durch Demokratie. 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 (ed. by 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.

 

 

References

 

Bohman, James, 1998, “The Globalization of the Public Sphere. Cosmopolitan Publicity and the Problem of Cultural Pluralism”, in: Philosophy and Social Criticism, vol. 24 No. 2/3.

 

Bohman, James, 2004, “Expanding Dialogue: The Internet, the Public Sphere and Prospects for Transnational Democracy”, in Crossley, Nick & Roberts, John Michael (ed.), 2004, After Habermas. New Perspectives on the Public Sphere, Oxford: Blackwell.

 

Bohman, James & Rehg, William, 2002, “Discourse and Democracy: The Formal and Informal Bases of Legitimacy in Between Facts and Norms”, in: Baynes, Kenneth & Schomberg, von René (ed.), 2002, Discourse and Democracy. Essays on Habermas’s Between Facts and Norms, New York: State University of New York Press.

 

 

Cox, Robert, 1981, “Social Forces, States and World Orders. Beyond International Relations Theory”, in: Keohane, Robert O. (ed.), 1986, Neorealism and its Critics, New York: Columbia University Press.

 

Cox, Robert, 2010, “On World Orders, Historical Change, and the Purpose of Theory in International Relations”, in Theory Talks, 37, http://www.theory-talks.org/2010/03/theory-talk-37.html.

 

 

Fraser, Nancy, 1993, “Rethinking the Public Sphere: a Contribution to a Critique of Actually Existing Democracy”, in: C. Calhoun (ed.), 1993, Habermas and the Public Sphere, The MIT Press.

 

Fraser, Nancy, 2008, Scales of Justice. Reimagining Political Space in a Globalizing World, Cambridge: Polity Press.

 

 

Habermas, Jürgen, 1991, The Structural Transformation of the Public Sphere. An Inquiry into a Category of Bourgeois Society (1962), The MIT Press.

 

Habermas, Jürgen, 1996, Between Facts and Norms (1992), Cambridge: Polity Press.

 

Habermas, Jürgen, 1999, Moral Consciousness and Communicative Action (1983), The MIT Press.

 

Habermas, Jürgen, 2007, “Kommunikative Rationalität und grenzüberschreitende Politik”, in: Niesen, Peter & Herborth, Benjamin (ed.), 2007, Anarchie der kommunikativen Freiheit. Jürgen Habermas und die Theorie der internationalen Politik, Frankfurt a.M.: Suhrkamp.

 

Habermas, Jürgen, 2008a, “Hat die Demokratie noch eine epistemische Dimension? Empirische Forschung und normative Theorie”, in: Habermas, Jürgen, 2008, Ach, Europa. Kleine Politische Schriften XI, Frankfurt a.M.: Suhrkamp.

 

Habermas, Jürgen, 2008b, Between Naturalism and Religion (2005), Cambridge: Polity Press.

 

Habermas, Jürgen, 2012, The Crisis of the European Union. A Response (2011), Cambridge: Polity Press.

 

 

Held, David, 2010, Cosmopolitanism. Ideals and Realities, Cambridge: Polity Press.

 

 

Herborth, Benjamin, 2007, Verständigung verstehen. Anmerkungen zur ZIB-Debatte”, in: Niesen, Peter & Herborth, Benjamin (ed.), 2007, Anarchie der kommunikativen Freiheit. Jürgen Habermas und die Theorie der internationalen Politik, Frankfurt a.M.: Suhrkamp.

 

 

Lafont, Cristina, 2008, “Alternative visions of a new global order: what should cosmopolitans hope for?”, in Ethics and Global Politics, (http://journals.sfu.ca/coaction/index.php/egp/article/view/1813/1780).

 

 

Linklater, Andrew, 1990 Beyond Realism and Marxism, London: Macmillan.

 

Linklater, Andrew, 1998, The Transformation of Political Community: Ethical Foundations of the Post-Westphalian Era, Columbia: University of South Carolina Press.

 

 

Müller, Herbarth, 1994, “Internationale Beziehungen als kommunikatives Handeln. Zur Kritik der utilitarischen Handlungstheorien”, in: Zeitschrift für Internationale Beziehungen (ZIB) 1/1994.

 

 

Nanz, Patrizia & Steffek, Jens, 2007, “Zivilgesellschaftliche Partizipation und die Demokratisierung internationalen Regierens”, in: Niesen, Peter & Herborth, Benjamin (ed.), 2007, Anarchie der kommunikativen Freiheit. Jürgen Habermas und die Theorie der internationalen Politik, Frankfurt a.M.: Suhrkamp.

 

 

Peters, Bernhard, 1993, Die Integration moderner Gesellschaft, Frankfurt a.M.: Suhrkamp.

 

Peters, Bernhard, 2001, “Deliberative Öffentlichkeit”, in: Wingert, Lutz & Günther, Klaus (ed.), 2001, Die Öffentlichkeit der Vernunft und die Vernunft der Öffentlichkeit. Festschrift für Jürgen Habermas, Frankfurt a.M.: Suhrkamp.

 

 

Postone, Moshe, “Political Theory and Historical Analysis”, in: C. Calhoun (ed.), 1993, Habermas and the Public Sphere, The MIT Press.

 

 

Scheuerman, William, 1999, “Between Radicalism and Resignation: Democratic Theory in Habermas’ Between Facts and Norms”, in: P. Dews (ed.), 1999, Habermas. A Critical Reader, Oxford: Blackwell.

 

 

 

 

 

 

 

 

 

 

 

 

 



[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.

 

 

Conclusion

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.

 

References

Aristotle (1977), Politics, The Loeb Classical Library XXI, Cambridge Massachusetts and London, Harvard University Press & William Heinemann.

Aristotle (1982), The Nicomachean Ethics, The Loeb Classical Library XIX, Cambridge Massachusetts and London, Harvard University Press & William Heinemann.

Arendt, Hannah (1958), The Human Condition, Chicago & London, The University of Chicago Press.

Augustine (1998), The City of God Against the Pagans, Cambridge, Cambridge University Press.

Habermas, Jürgen (1962), Strukturwandel der Öffentlichkeit – Untersuchungen zu einer Kategorie der bürgerlichen Gesellschaft, Neuwied, Hermann Luchterhand Verlag.

Habermas, Jürgen (1968), ‘Arbeit und Interaktion. Bemerkungen zu Hegels Jenenser ‘Philosophie des Geistes’, i: Jürgen Habermas (1968), Technik und Wissenschaft als ‘Ideologie’, Suhrkamp Verlag, Frankfurt am Main, s. 9 – 47.

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

Hansmann, Otto (1992), Moralität und Sittlichkeit, Weinheim, Deutscher Studien Verlag.

Hegel. G. W. F. (1923a), Schriften zur Politik und Rechtphilosophie, Georg Lasson (Hrsg.), Sämtliche Werke band VII, Leipzig, Verlag von Felix Meiner.

Hegel. G. W. F. (1923b), ‘System der Sittlichkeit‘, in Hegel. G. W. F. (1923a), Schriften zur Politik und Rechtphilosophie, Georg Lasson (Hrsg.), Sämtliche Werke band VII, Leipzig, Verlag von Felix Meiner, s. 414 -499.

Hegel, G. W. F. (1952), Phänomenologie des Geistes, Philosophische Bibliothek Band 114, Hamburg, Felix Meiner Verlag.

Hegel, G. W. F. (1955), Grundlinien der Philosophie des Rechts, Hamburg, Felix Meiner Verlag.

Hegel, G. W. F. (1991), Elements of the Philosophy of Right, Cambridge, Cambridge University Press.

Honneth, Axel (1992), Kampf um Anerkennung – Zur Moralischen Grammatik sozialer Konflikte, Frankfurt am Main, Suhrkamp.

Honneth, Axel (2011), Das Recht der Freiheit; Frankfurt am Main, Suhrkamp Verlag.

Lukács, Georg (1981), Der junge Hegel, 3. Au?age, 1968, Neuwied und Berlin, Hermann Luchterhand Verlag.

Marx, Karl (1968), „Thesen über Feurbach“ i Karl Marx, Die Frühschriften, Stuttgart, Alfred Kröner Verlag, s. 339 – 341.

OED – Oxford English Dictionary: practice, noun, Third edition, December 2006; online version June 2012. <http://www.oed.com/view/Entry/149226>; accessed 10 July 2012. An entry for this word was first included in New English Dictionary, 1907

OED – Oxford English Dictionary: practise | practice, verb, Third edition, December 2006; online version June 2012. <http://www.oed.com/view/Entry/149234>; accessed 10 July 2012. An entry for this word was first included in New English Dictionary, 1907.

OED – Oxford English Dictionary: praxis: praxis, noun, Third edition, March 2007; online version June 2012. <http://www.oed.com/view/Entry/149425>;; accessed 10 July 2012. An entry for this word was first included in New English Dictionary, 1907.

Plato (1999), Republic, Books I – V, The Loeb Classical Library 237, Cambridge Massachusetts and London, Harvard University Press.

Plato (1956), Republic, Books VI – X, The Loeb Classical Library, Cambridge Massachusetts and London, Harvard University Press & William Heinemann.

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.

Bibliography

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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.

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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?

Introduction

The global developments discussed at this conference have 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.

 

Conclusion

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.