Abstract
A defining feature of democracy is the inclusion of members of the political association. However, the corresponding right to exclusion has attracted undeservedly scant attention in recent debates. In this paper, the nature of the right to exclusion is explored. On the assumption that inclusion requires the allocation of legal power-rights to the people entitled to participate in the making of collective decisions, two conceptions of the right to exclusion are identified: the liberty-right to exclude and the claim-right to exclude. The choice between them depends on the nature of the interests that justifies the power-rights of people included. The position is defended that if rights to democratic participation are power-rights, we must also accept that the people included have claim-rights to the exclusion of non-members.
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Notes
The right to membership could also be explained in terms of the ‘right to rights’, first introduced by Hanna Arendt and later elaborated by Seyla Benhabib and others. According to Benhabib’s analysis, the ‘right to have rights’ refers to membership rights in a political community (Benhabib 2004, p. 56). The issue raised in our analysis could also be explained in this terminology and would accordingly refer to the question whether the right to rights, however construed, gives rise to rights against those who do not have the right to rights within a particular political community.
See also Morss (2009) for the analogous claim that rights to self-determination can be understood to imply either the no-right of others to participate or the duty of others not to participate.
On the assumption that permanent non-resident citizens count as ‘non-members’, the position identified here challenges the present tendency of extending voting rights to expatriates. For the details of this development, see IDEA (2007).
Additional to exclusion from participatory rights, Fine (2013, p. 254) identifies exclusion from territory, settlement and membership. The claims made in this paper on the exclusionary implications of participatory rights do not automatically translate into claims about other forms of exclusion.
The category of ‘legal power’ derives from Hohfeld’s well-known analysis of legal rights (see Jones 1993 for an overview). Yet, there are several ambiguities in the concept of legal power that are not discussed here. For example, it is not entirely clear whether legal power is exercised when a person undertakes changes in the non-legal aspects of his or her situation that implies a change of legal position (should we conclude that a person entering a foreign jurisdiction thereby exercises legal power if, by this fact, the person looses certain legal powers while regaining others?). For further analysis of this point, see Haplin (1996). As a note on terminology, we should observe that ‘legal power’ is more often known as ‘legal competence’ in the context of Scandinavian legal theory (see Spaak 2005).
However, I will speak of participatory rights as short for the variety of legal rights required for effective opportunities for political participation.
The claim that rights serve to protect ‘interests’ contrasts with the claim that rights serve to protect either fundamental needs, autonomy, freedom or capabilities (Cruft 2010, p. 442). However, it appears that whether rights are justified by appeal to interests, needs or capabilities, the assumption is that rights serve to protect some urgent features of the rights-holder. In this paper, the view that rights serve to protect ‘interests’ is taken to refer to the more general doctrine according to which rights are justified only by virtue of some urgent features of the rights-bearer.
Kelsen (1945, p. 236) defines the demos as equal to the citizenry and therefore does not consider subjection to collective decisions as sufficient for participatory rights. He nevertheless pondered extending political rights to non-citizens and therefore appears to view exclusion as a privilege rather than as a claim-right.
Note that this claim is distinct from the claim that the value of self-legislation is fundamentally at odds with subjection to collective decisions (see Ceva 2011).
Elsewhere, Preda (2014) has explored the ontological status of groups necessary for them to be bearers of ‘choice-rights’.
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Acknowledgements
This paper has benefitted from discussions in several places, including the CSMN Workshop, Democracies Today: Constitutions, Cultures, Practices, Oslo University 2013; the annual meeting of the Nordic Network in Political Theory, Oslo 2013 and the SCAS symposium ‘Democracy’s others’, Uppsala 2013. I am also grateful for comments from Jonathan Kuyper and two anonymous reviewers of this journal.
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Beckman, L. Democracy and the Right to Exclusion. Res Publica 20, 395–411 (2014). https://doi.org/10.1007/s11158-014-9253-y
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DOI: https://doi.org/10.1007/s11158-014-9253-y