Abstract
The debate between legal constitutionalists and critics of constitutional rights and judicial review is an old and lively one. While the protection of minorities is a pivotal aspect of this debate, the protection of disenfranchised minorities has received little attention. Policy-focused discussion—of the merits of the Human Rights Act in Britain for example—often cites protection of non-citizen migrants, but the philosophical debate does not. Non-citizen residents or ‘denizens’ therefore provide an interesting test case for the theory of rights as trumps on ordinary representative politics. Are they the ultimate success story of the human rights framework? Or was Michael Walzer correct to describe government of denizens by citizens as a modern form of ‘tyranny’? This paper argues that neither liberal rights theorists nor democratic republicans provide a coherent response to the existence of denizens. Liberal rights theorists overstate the extent to which a politically powerless status can secure individual rights, while democratic republicans idealise the political process and wrongly assume that all those affected by laws are eligible for political participation. The paper outlines an alternative model for assessing the accountability of states to their non-citizen population, informed by the republican ideal of non-domination. It identifies gaps in state accountability to denizens–such as where there is inadequate diplomatic protection—and argues that these gaps are particularly troubling if their exit costs of leaving the state are high.
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Notes
I depart from the more common term ‘legal constitutionalism’ in order to explore the wider human rights or sociology of immigration approach which sees immigrants as transnational rights holders, rather than confine myself to debates in democratic theory. The two positions are not identical, but are compatible in their fundamental principles, and together they constitute the dominant approach to the study of denizens. My use of ‘democratic-republican’ rather than ‘political constitutionalist’ is in a sense narrower – I wish to focus on the arguments of republicans who see political participation as fundamental to non-domination rather than on the wider category of critics of judicial review including republicans, political constitutionalists, and democratic liberals.
Statelessness is the state of lacking citizenship anywhere whereas denizenship is the state of lacking citizenship in one’s state of residence.
While Hammar employs the term to refer to long-term, legal, permanent residents, I use it to refer to all resident noncitizens–for brevity, because I am exploring the idea that noncitizenship is a type of status, and because I dislike the connotations of the term ‘alien’.
Plyer v Doe, 457 U.S. 202 (1982).
This list is adapted from Pettit (1997).
For a similar argument see Shapiro (2003, p. 45).
Or at least, it used to be. For example Pettit describes his early historical work as centred on republican freedom understood ‘as equivalent to citizenship in a republic’ (Pettit 1997, p.vii).
Pettit also makes this connection between the ‘egalitarian commitment’ of non-domination and Dworkin’s principle that people should be treated as equals (Pettit 1997, p. 111).
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Acknowledgments
I received very useful feedback from the audience of the York Political Philosophy Postgraduate conference, where an earlier draft of this article was presented. I am also grateful for comments from Cécile Laborde, Richard Bellamy, Katerina Mantouvalou and Jack Simson Caird. The questions raised by two anonymous reviewers were of particular help. The research for this article was undertaken as part of PhD research funded by the Arts and Humanities Research Council.
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Benton, M. The Tyranny of the Enfranchised Majority? The Accountability of States to their Non-Citizen Population. Res Publica 16, 397–413 (2010). https://doi.org/10.1007/s11158-010-9133-z
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DOI: https://doi.org/10.1007/s11158-010-9133-z