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International Sociology

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Jean L. Cohen International Sociology 1999 14: 245 DOI: 10.1177/0268580999014003002 The online version of this article can be found at: http://iss.sagepub.com/content/14/3/245

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Changing Paradigms of Citizenship and the Exclusiveness of the Demos


Jean L. Cohen
Columbia University abstract: Three distinct components of the citizenship principle have been identified in the literature: a political principle of democracy, a juridical status of legal personhood and a form of membership and political identity. The modern paradigm of citizenship was based on the assumption that these components would neatly map onto one another on the terrain of the democratic welfare state. Globalization, new forms of transnational migration, the partial disaggregation of state sovereignty and the development of human rights regimes have rendered this model anachronistic. Only if the various elements of the citizenship principle are disaggregated and reinstitutionalized on independent levels of governance, some national, some supranational, will the exclusiveness constitutive of the ideal of citizenship be tempered with the demands of justice. keywords: citizenship + democracy + disaggregation + identity + membership + rights

Due to the impact of 'globalization' the relationship between democracy, identity and justice is being vigorously debated these days. 'Globalization' involves a major intensification of transnational economic exchanges and competition, of communications, of migration and of social and cultural interactions, all made possible by key technological advances (Falk, 1992; Held, 1995; Ruggie, 1993; Sassen, 1996). These processes facilitate fantastic technical and social creativity. However, they also have side effects that transcend borders and which can be very destructive if uncontrolled: just think of the ecological issues or the new forms of inequality generated by the intensely competitive globalized market.
International Sociology+ September 1999 + Vol14(3): 245-268 SAGE (London, Thousand Oaks, CA and New Delhi) [0268-5809(199909)14:3;245-268;009947]

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Recently doubts have emerged about the ability of democratic nationstates to control developments directly affecting their citizens' lives. Both from the point of view of efficacy and moral legitimacy the nation-state is now considered by many to be obsolete (Archibugi and Held, 1995; Held, 1995; Soysal, 1994). That the revival of liberal cosmopolitanism focused on fostering international principles of justice (human rights) and global institutions able to back them up is hardly surprising in such a context (Ferrajoli, 1996; Nussbaum, 1996; Pogge, 1994; Soysal, 1994; Waldron, 1995). On the other side, identity politics have re-emerged in a number of shapes generating both legitimate multicultural demands for the recognition of diversity, and virulent forms of exclusionary nationalist movements. In response, democratic and republican political theorists try to theorize an inclusive 'civic' or constitutional patriotism that is distinct from 'ethnic' nationalism, based on democratic political principles and oriented toward the strengthening of egalitarian citizenship rights (Arendt, 1973; Brubaker, 1992; Cohen, 1996; Viroli, 1995). Some focus on revising citizenship laws so that they become less exclusionary and on strengthening democracy in existing states (Habermas, 1995; Miller, 1995; Tamir, 1993; Walzer, 1983). Others stress the need for democratic institutions to structure the power of emergent regional polities such as the European Union (Habermas, 1996b; Held, 1995; Poli, 1991; Preuss, 1996). In either case, for democratic and republican political theorists, only a strong polity of the appropriate size can preserve democracy and social justice from the disintegrative forces of globalization and from divisive, inegalitarian nationalisms. Thus the debate in recent political theory over the proper response to globalization is increasingly being cast as a choice between liberal cosmopolitanism and some form of democratic civic republicanism. The former considers illiberal and unjust the claims of any group, no matter how it is defined, to the special membership rights and privileges attached to citizenship in a particular polity. These allegedly violate the moral principle that posits the equal worth of all persons by elevating the good of members of the demos above non-members. Accordingly they push an orientation toward the universal rights of individuals as persons, seeking to foster a more cosmopolitan conception of political life (Bader, 1995; Ferrajoli, 1996; Pogge, 1992; O'Neill, 1996). The civic republican and committed democrat, on the other hand, argue that democracy and participation are intrinsically valuable, and should play the most important role in specifying, justifying and protecting citizens' rights. Democracy involves the sovereign self-determination of a people, and the will to act in its name and to make sacrifices for its sake. It requires a demos, a 'we' to which individual citizens feel they belong, in whose deliberations they have voice, and toward which they can 246
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Cohen Changing Paradigms of Citizenship accordingly feel a sense of shared fate and solidarity. If, however, the collective identity of the demos is understood in civic and political rather than ethnic and cultural terms, it can, so the republican or democratic theorist argues, be open and egalitarian and, hence, neither exclusionary nor unjust (Arendt, 1973; Habermas, 1995; Miller, 1995; Viroli, 1995). I want to challenge the terms of this debate as well as the political and institutional choices it delineates. I argue that it is based on a lack of analytical clarity regarding the concept of citizenship and a questionable core assumption that both sides share, even if they evaluate it differently: that the various dimensions of the citizenship principle must be aggregated into a uniform bundle of rights and protected by the same political instance: the national state. It is this assumption that in my view generates a set of false alternatives in the face of what can only be described today as the decomposition of the paradigmatic conception of citizenship that has been hegemonic in the West ever since the democratic revolutions of the 18th century. The mutual criticisms leveled by advocates of each position often hit their mark. It is certainly easy to point out the abstractness of cosmopolitan individualism, its failure to take particular identities (political and cultural), contexts and traditions into account, as well as its quixotic effort to conjure away the discreteness of the political and to replace it with universalistic juridical relations based on the most abstract identity of all: humanity (Arendt, 1973; Cohen, 1996). Republican and democratic theorists are right to insist that 'humanity', even if positivized into 'legal personhood', is too thin an identity to motivate much mobilization, participation or solidarity on its behalf. They are also right to insist that democratic political institutions and active citizenship are indispensable for determining the common good and for protecting liberty, both public and private. The reciprocal illusions of civic republicanism are less obvious, and I come back to them later, but certainly they include a peculiar naivete visa-vis the exclusiveness, particularism and arbitrariness that are usually at work when sovereign states or sovereign citizens delimit membership in the demos and articulate the special rights of citizens. Our choice is not between liberal universalism that is focused on human rights and the rule of law US democracy construed as the sovereign selfdetermination of a people whose representatives have exclusive rule over all the affairs and inhabitants of a territory. This old antinomy between rights and democracy (reminiscent of Carl Schmitt) re-emerges today because theorists fail to adequately analyze the citizenship principle and to transcend core assumptions of a now anachronistic paradigm. Thus neither approach is able to discern what I consider to be exciting possibilities for a new paradigm of citizenship and new political forms of organization.

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Before turning to these, I first briefly present an analysis of the citizenship principle. I then discuss the classic synthesis and its limits. I conclude by suggesting some new combinations and directions for the future that are made possible by the partial disaggregation of the various components of the citizenship principle - a salutary development in my view.

The Analytic of the Citizenship Principle


Three distinct components of the citizenship principle have been identified in the literature: citizenship as a political principle of democracy that involves participation in deliberating and decision-making by political equals for a body politic; citizenship as a juridical status of legal personhood that carries a set of legally specified rights including the all-important ability of the legal subject to sue in court and to claim the state's protection; and citizenship as a form of membership in an exclusive category that forms the basis of a special tie and affords a social status and a pole of identification that can itself become a rather thick and important identity able to generate solidarity, civic virtue and engagement (Pocock, 1995; Marshall, 1964; Tilly, 1995; Walzer, 1983; Brubaker, 1992). Depending on whether they are republican or democratic theorists for whom the active participatory dimension is the most salient, liberals concerned with personal rights and matters of justice, or communitarian theorists for whom the dimension of collective identity and solidarity matters most, political theorists have focused on (and often hypostatized) one or another component when conceptualizing citizenship. Analytic clarity about what each component logically entails facilitates insight into how an historically dominant paradigm of citizenship synthesizes them and at what cost. It is my thesis that the components of the citizenship principle can and do come into conflict, and that every historical synthesis entails a set of political choices and tradeoffs that tend to be forgotten once a conception becomes hegemonic. Since I also believe that we are experiencing the decomposition of the modem paradigm of citizenship and a new set of choices, it is worth the effort to become reflexive about the logic of each dimension and the nature of the now decomposing modem paradigm. Citizenship as a political principle of self-rule by a demos was first articulated by Aristotle and has been embraced in some form by all modem republican theorists (Aristotle, 1981; Pocock, 1995). In this approach citizenship is construed as an activity that involves participation in ruling and being ruled by equals who have uniform political status and rights. The citizen exercises his or her voice in the public sphere, participates in deliberations and decision-making about common concerns, and considers the common good as well as particular interests. Citizens are 248
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Cohen Changing Paradigms of Citizenship directly or through their elected representatives the authors of the laws and procedures of decision-making by which they are bound (Petit, 1997). This strong democratic conception of citizenship puts political equality and participation at its center, but it is also particularizing and exclusionary. Indeed, it has always been associated with certain prerequisites for membership that exclude important segments of the population. It has also entailed the rule of citizen peers not only over one another, but also over non-citizens. In short, in the republican conception, the competent exercise of public autonomy requires a unique set of capacities which, until very recently, meant that only some could become equals. We all know that in the classical ideal, the citizen had to be male, of known genealogy, propertied, the head of a household and able and willing to take up arms (Pocock, 1995). Even if today the prerequisites for the democratic and/ or republican conception of citizenship have changed, no democracy is completely free of them (Pocock, 1995). The circle of people endowed with full participation rights has everywhere remained narrower than the class of persons subject to the law (Neuman, 1996). The question that must be faced, then, is whether or not exclusion is constitutive of the very ideal of democratic citizenship. Modem struggles for inclusion in the category have reconfigured the ideal of citizenship by drawing on a juridical conception derived from Roman law (Pocock, 1995). The citizen in this approach is not a political actor but a legal person free to act by law and expect the law's protection. The focus of the juridical reconceptualization of citizenship is legal standing and personal rights: the citizen can sue in court and invoke a law that grants him rights. This does not entail having a hand in making the law. Nor does it require uniformity of rights among the citizenry. The juridical dimension of the citizenship principle is thus universalizing, elastic and potentially inclusive: it is not tied to a particular collective identity, or membership in a demos, it can go well with a plurality of different statuses, and it need not be territorially bound. The universalism inherent in the juridical model of citizenship as legal personhood is open to the politics of inclusion, and it is on this basis that transnational or global citizenship is at least conceivable. Indeed, once the juridical model of citizenship is taken up by liberals in the modem era it gets equated with the practice of claiming and asserting rights, logically open to all. The push toward the global positivization of human rights is an example of this trend. However, when dominant, the juridical model seems to be depoliticizing and desolidarizing. It undermines the will to political participation, as well as the strong identification with a particular republic and the social solidarity that the democratic/ republican conception deemed so desirable (Miller, 1995).
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Apparently the juridical and democratic components of the citizenship principle are in tension: the former universalizing and inclusive but apolitical and individualistic, the latter political, internally egalitarian and uniform but externally exclusive and particularizing. Certainly the democratic dimension coheres well with the membership component of the citizenship principle, for it seems to presuppose and to foster a common identity of the demos that is engaged in self-rule: as differentiated and bounded. But citizenship as membership, however it is acquired, is, as Brubaker (1992) correctly points out, a mechanism of social closure. It is obvious that the membership dimension of the citizenship principle is exclusionary. From this perspective, citizenship forms a special tie and a specific identity: it includes some while excluding others and it is always based on particularistic considerations regarding access to membership. Indeed citizenship itself is a special and privileged status of membership in a socially esteemed category. It is desirable apart from any democratic considerations regarding the intrinsic value of participation in deliberations or the instrumental value of the vote. Judith Shklar has understood well the status dimension of the membership/identity component of the citizenship principle. In her analysis, citizenship confers social standinghigher social status - on those allowed into the exclusive circle vis-a-vis those outside (Shklar, 1995). Indeed, she argues that the desire for status and honor attached to the citizenship principle (and not for voice or liberty) is the major motivation driving struggles for inclusion on the part of those categories of the population that have been denied full citizenship status (Shklar, 1995: 27-62). The desire for social esteem as distinct from the intrinsic or instrumental value of voice is also what seems to drive multiculturalist demands for recognition in the contemporary context (Honneth, 1995: 92-130; Taylor, 1992). The membership component of the citizenship principle is thus particularistic, exclusionary and exclusive. This is hardly news. But my point is to indicate that there is an 'elective affinity' between a strong democratic stress on citizenship as the self-rule of a sovereign demos (which presupposes membership) and a communitarian stress on belonging and identity, as Michael Walzer (1983) noticed long ago. Both involve a privileged status vis-a-vis the non-citizen. We cannot ignore this logic or Wahlverwandtschaft. Nor must we follow the democratic communitarian (Walzer) or liberal nationalist (Hollinger, Lind, Miller, Tamir) and conclude that democratic citizenship requires a thick, shared, homogeneous, national cultural tradition that is given, not chosen (Hollinger, 1995; Lind, 1995; Miller, 1995; Tamir, 1993; Walzer, 1983). For democratic communitarians focused on membership, this is necessary to motivate the commitment and engagement that make democracy work and to generate the solidarity necessary for civic virtue. The exclusiveness of the demos is not their 250
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Cohen Changing Paradigms of Citizenship worry. I, on the contrary, argue that the exclusionary thrust of the democratic component of the citizenship principle can and should be tempered, if articulated and institutionalized in the proper way: that is, if it is decoupled from the premises of exclusive territoriality and absolute sovereignty of the political body that confers citizenship and informed by the universalistic principles of justice. For only under such conditions can the tension between democracy and justice be lessened, although I do not believe it can ever be entirely abolished.

The Modem Synthesis and its Limits


The democratic constitutional nation-state synthesized the three elements of the citizenship principle in a particularly successful way. T.H. Marshall (1964) provides the classic articulation of the hegemonic paradigm for modernity. Marshall defined citizenship as a personal legal status that is bestowed on full members of a political community and endows them with a set of common rights and duties. This conception foregrounds the juridical component but links it to the principle of equality. Although it is a juridical status of personal freedom and legal standing, citizenship in the modem state involves uniform and equal rights that all members have in common. As such, modem citizenship is inclusive, universalizing and egalitarian and uniform. This is partly why democratic citizenship in liberal juridical terrain has important effects on social identities and a major role to play in social integration. It is also well known that Marshall offers an evolutionary scheme for the development of national citizenship whereby the emergence of the three sets of rights - civil, political and social - he sees associated with full citizenship is presented as a story of geographic fusion (a shift from local to national levels of belonging) and functional separation among the categories of rights. The trajectory involves the enrichment of the status of rights-bearing citizens (expansion of the civil rights of personhood) and a fuller measure of equality for all those subject to the law (the granting of political rights to ever more categories of the population) (Marshall, 1964). Yet equal citizenship also requires social rights not only to guarantee the worth of liberties to the working class but also as a mechanism of social integration: to ensure that workers feel like full members of society who are able to identify with the national community - as citizens. Indeed, the equality, uniformity and universality of the modem conception of citizenship require that social protections take the form of universal rights of citizenship and not group-differentiated benefits (Kymlicka and Norman, 1995). In short, Marshall assumes that on the terrain of the liberal democratic constitutional, national, territorial and, now, welfare state, the three components of the citizenship principle that I identified (the juridical status of 251
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the legal person, the political status of the active citizen and the dimension of the identity of the citizenry) would all map onto one another in a coherent and frictionless whole. Justice and the rule of law, the democratic demand for voice and equal rights, and the communitarian concern for solidarity and collective identity could come together on the terrain of the democratic welfare state provided that social rights of citizenship are acknowledged. This is the core of what I have called the modern paradigm of citizenship. It is this paradigmatic conception of citizenship that has lost its power to convince today. But it always had a disturbing ambiguity that has now become apparent: are the uniform equal rights and respect owed to every citizen due to their individual status as legal persons or to their membership status as belonging to a particular political community? To put this differently, is the legal recognition of the rights-bearing individual presumptively granted to all human beings on this model or only to the citizens of a particular state? Marshall's happy consciousness regarding citizenship as a principle of inclusion and equality and his assumption that the components of the citizenship principle come together in a frictionless way paper over this ambiguity. In fact, he never confronted it because he simply assumed, like so many others, that the identity component of the citizenship principle into which he hoped to integrate the working class through social rights was a given: the cultural identity of the demos construed as a nation. If we shift perspective away from the substantive rights of citizenship (Marshall's focus) to the formal dimension of membership things look rather different. The background presupposition of the modern paradigm of citizenship is that citizenship involves membership in a sovereign, territorial nation-state within a system of states. The nation-state is not only a territorial organization monopolizing legitimate rule within a bounded space, it is also, as Brubaker rightly argues, a membership organization (Brubaker, 1992). Citizenship in such a state is an instrument of social closure. It always has an ascriptive dimension and it always establishes privilege insofar as it endows members with particular rights denied to non-members (today, primarily, the resident alien or foreigner). Thus, in the modern system of states, the republican ideal of the self-determining demos merges with the sovereign state's interest in control over all those in the territory through the construction of national citizenship as a formal category of membership. Exclusion and inequality, not inclusion, thus attach to citizenship seen as a membership principle (Brubaker, 1992). To be sure, certain republican political theorists noted long ago the tendency of the nation-state to violate the egalitarian logic of constitutional democracy by fostering inequality and exclusion vis-a-vis national minorities and aliens. Hannah Arendt (1973) argued that this danger is 252
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Cohen Changing Paradigms of Citizenship intrinsic to the nation-state system. Because the nation-state equates the citizen with the member of the nation it collapses a political/legal category into a category of identity and perverts the egalitarian logic of the constitutional state by rendering those who are not members of the nation implicitly into second-class citizens. On the republican account, the problem lies in the reduction of the political principle of citizenship to a substantive exclusionary conception of collective identity: nationality. Accordingly Arendt argued for disaggregating citizenship from ascriptive criteria of national belonging (ethnic or cultural) and insisted that civil and political rights of citizens should not be allocated on the pre-political basis of nationality. States should not be nation-states but civic polities that grant citizenship on legal criteria (Arendt, 1973). Every attempt to distinguish civic from ethnic nationalism, or civic/ constitutional patriotism from nationalist communitarianism, relies on some form of this argument including contemporary theories of liberal nationalism (Brubaker, 1992; Habermas, 1995; Miller, 1995; Tamir, 1993; Viroli, 1995). The revival of this discourse in recent years is a response to the resurgence of ethno-, racialized and very illiberal or anti-democratic versions of nationalist/ cornrnunitarian identity politics. The fear that such nationalisms undermine liberal and democratic institutions motivates political theorists to draw distinctions between good and pernicious forms of political identity, and between open and inclusive as opposed to essentialized and inegalitarian criteria of belonging and access to citizenship. But we cannot leave the matter there. For there is another set of contradictions inherent in the nation-state system that Arendt noted, namely the tension between the rule of law and the concept of sovereignty regardless of whether it is attributed to the nation, to the state or to the people (the demos). Arendt understood that the attribution of exclusive territoriality and inviolable sovereignty to each nation-state over internal matters contributed to the willingness of states to deprive non-citizens of basic rights and to threaten the rights of national minorities, even if they were citizens. It is the presumed sovereignty of the territorial nation-state, however democratic, that is at the heart of the ambiguity noted above, namely whether the legal status of the rights-bearing individual is granted to all human beings or only to the citizens of a particular state. Until quite recently the dilemma was resolved everywhere in the same way: legal personhood was attached to citizenship status in a discrete state. Rights of non-citizens depended on the state's (as representative of the sovereign demos') will and on little else. Arendt and other democratic republican political theorists tried to reconcile the egalitarian universalistic principles they believed in with the discreteness and exclusionary logic of democratic citizenship in the modern paradigm in two ways: first, by applying universalism to the idea of citizenship as membership, such that 253
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citizenship itself becomes the core human right: everyone born into a territorial state has the right to citizenship within it and ought not to be deprived of it (Arendt, 1949). Second, democracy and the rule of law could be reconciled if, internally, the claim to unified sovereignty by the state (representing the demos) is resisted, disaggregated and controlled through a constitutionalism which establishes and limits powers by guaranteeing rights, by creating an overall separation and balance of powers, and by creating counter-powers through erecting a federalist structure. Constitutionalism of this sort would reconcile democratic selfrule of the demos, state power and the rule of law by denying the claim of absolute sovereignty (in the sense of legibus solutus) of 'the state' or any of its particular organs (Arendt, 1963; Arato, 1995: 202-4.) There are several theoretical and normative inadequacies with this solution. I address three of them. First, the assumption that the 'exclusiveness of the demos' is simply a function of rules of access to citizenship that stress pre-political (ethno/cultural) instead of universalistic legal criteria is wrong. As I already indicated, if the democratic component of the citizenship principle is interpreted to entail self-rule by a self-determining demos (directly or through its representatives), and if this idea merges with the concept of the sovereign state that rules all the inhabitants of a territory, then such a polity will be a nation-state, and the demos will inevitably understand itself as a nation. Democratic citizenship in a state entails a distinction between members and non-citizens, and it inevitably becomes a pole of identity-formation and identification even in the most liberal democratic constitutionally articulated states. The very ambiguity of the term 'national' implies as much: it is used both as a synonym for a state's citizenry (to be a French national is to be a French citizen) and, at the very least, as a cultural category of collective identity. Even if citizenship laws are open and 'civic', even if civic patriotism is all that is legally required of new and old citizens, even if the identity of the nation is understood as an amalgam and open to constant reinterpretation, national citizenship tends to 'thicken' and to take on a cultural connotation and identity over time (Hollinger, 1995; Lind, 1995). Democratic, republican citizenship understood in the above terms fosters this tendency, it does not limit it. Democratic self-rule does not and cannot exclude exclusion, because the political body in which it is institutionalized is inevitably particular (one among several) and because the demos must be defined and delimited. Who belongs to the demos cannot initially be democratically established: it always involves an ascriptive, unchosen, ethical-political element no matter how liberal the criteria of access for newcomers become (Whelan, 1983). In other words, the tension noted by Arendt between the political/ constitutional (potentially inclusive, egalitarian, and just) and 'pre-political' (potentially exclusive and
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Cohen Changing Paradigms of Citizenship unjust) conceptions of belonging exists within liberal constitutional democracy, between the juridical and democratic components of the citizenship principle and not only between liberal democratic constitutionalism and illiberal or anti-democratic nationalisms. To put this another way, states create nations when states are construed to be sovereign political entities that exist in a system of sovereign states, and when the demos, the citizenry, is construed as a membership organization that exercises self-determination through its own state. In short, the demos of the civic republican is, on the modem paradigm of citizenship, a nation. Second, as the case of Germany shows, federal states can still be nationstates with very restrictive rules regulating access to citizenship. Citizenship as a birthright does not redress the precariousness of the rights of non-citizens who are resident in a territory that is not their own state (Cohen, 1996). Third, as the example of the United States shows, even if they institutionalize a separation and division of powers, have a federalist structure, and positivize fundamental rights, constitutional democracies can still be sovereign entities if the international system of states (the international regime) accords sovereignty to them and to all other polities recognized as states. Such polities would still have full powers over internal affairs, over entry to the territory, access to citizenship, distribution of rights and privileges and so forth. Thus the attempt to disaggregate sovereignty by constitutionalism internally will not suffice if it is not complemented by similar developments on the supranational level (Cohen, 1996). My argument here is not intended as a critique of civic republicanism per se but as an analysis of the paradoxes of any democratic conception of citizenship in the modem paradigm and of the logic of the democratic component of the citizenship principle generally. It thus also applies to the idea of constitutional patriotism recently developed by Habermas (1992, 1995, 1996a). The latter wants to construct a liberal democratic conception that avoids the tendency of civic republicanism to thicken into communitarianism. In a series of important essays on citizenship, he offers the idea of constitutional patriotism as a way to address the problem of access to citizenship within existing states and the problem of how to construe the identity of the citizenry on the level of the nation-state or within emergent regional polities (the European Union), in a just way. Constitutional patriotism involves commitment to liberal and democratic principles and procedures of a constitution. That is all that can be required as a criterion of gaining access to citizenship. Neither cultural homogeneity nor ethnic lineage should play any role here. If, in addition, popular sovereignty is understood in procedural and communicative rather than substantive terms (as the will of a macro-subject) the exclusionary thrust of the demos can be blocked (Habermas, 1996a: 463-90).
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Habermas acknowledges the discreteness of the political and the unavoidable 'ethical' dimension of any actual, institutionalized constitution (Habermas, 1993: 1-19). Constitutional patriotism entails allegiance to 'our' particular constitution, not to any and every constitution. This entails attachment to the particular way in which a specific polity has institutionalized and interpreted abstract liberal and democratic principles, provided that these are open to reinterpretation. Accordingly, political identification with the specific constitution of a specific polity, and the political identity of the demos construed as those who so identify, is particular but not anti-universalist or illegitimately exclusionary. With this synthesis of liberal and democratic principles of constitutionalism Habermas apparently avoids the illiberal thrust of citizenship construed as membership in a territorially based, culturally specific, national identity. The trick is accomplished by linking the three components of the citizenship principle in a specific way: the 'ethical' or particular constitutional ethos is seen as a specification of universal moral principles through democratic procedures and discussion on the part of a particular political community. But there's the rub. The ethical component of constitutional patriotism cannot be reduced to a mere specification of universal moral principles (liberal or democratic). What makes a constitution American, German, French and so on, entails a lot more culture, tradition, habits of the heart, than this conception allows (McCarthy, 1991: 181-99). The ethical-political or collective identity component cannot be reduced to a contextual application of universal moral principles of justice. Moreover the problematic of the 'exclusiveness of the demos' is not resolved either on the national or supranational (regional) level so long as one assumes, as Habermas clearly does, that the various components of the citizenship principle will come together on the same institutional level. Habermas's constitutional patriotism remains within the modem paradigm of citizenship, even as he applies it to the supranational level of the European Union understood as a federal polity in the making (Habermas, 1996b). Europe, in this approach, once it has a democratically legitimate constitution and a European-wide societe politique (involving European political parties), would simply be a federalist mega-state with a new ethos forming around it. No other word would better capture the political identity that such a sovereign liberal democratic constitutional European federalist mega-state would foster, if successful, than nation. Constitutional patriotism even on this level would not avoid the paradoxical dialectic inherent in the modem paradigm of citizenship that drives republican or liberal democratic conceptions into the arms of thicker, more communitarian understandings of identity. It certainly does not exclude exclusion.
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Cohen Changing Paradigms of Citizenship

The 'Postmodern' Conundrum


While the modem paradigm of citizenship was never normatively satisfactory, it did promise to resolve the tensions between democracy, justice, and identity if only it was institutionalized in the right way. Today globalization has undermined its core presuppositions and made that promise appear hollow. The exclusive territoriality and sovereignty inherent in the nation-state model are being transformed due to the emergence of transnational economic practices, supranational legal regimes and postnational political bodies. The notion that the state must be a sovereign totality - bounded, self-sufficient and exercising uniform control over its citizen-subjects- is no longer empirically accurate (Sassen, 1996; Ruggie, 1993; Falk, 1992; Held, 1995; Mendovitz and Walker, 1990). That is why the image of the demos as a unified and homogeneous collective subject composed of sovereign self-determining citizens is no longer convincing. A new paradigm of citizenship has to be invented that is both adequate to empirical developments and normatively justifiable. The nation-state still exists and remains 'sovereign' in many respects. I disagree with strong versions of the globalization thesis that assert that the nation-state is an anachronism doomed to go the same way as the early modem city-state, because it no longer can provide the conditions for economic well-being, security or protection to its subjects. I also disagree with the overly eager pronouncements of the death of sovereignty as an empirical reality. We should be very clear here. The modem state continues to exercise jurisdictional authority, the power to sanction and to legitimately use force vis-a-vis those in its territory. Full citizenship in the state remains a very important form of membership, security, status and power. Nevertheless, the international system of states no longer grants exclusive sovereignty over internal or external matters to any polity. The nationstate may continue to exist, but as 'weak' versions of the globalization thesis correctly insist, the capacity of such states to act in fully autonomous ways in such areas as the environment, the economy and even defense has been seriously undermined. So has the normative legitimacy of imputing absolute or exclusive sovereignty to such states over inhabitants of the territory they continue to control. Claims to justice that call for moral and legal intervention regarding the rights of individuals or minorities within states have emerged, as has the insistence that states have obligations (for example in environmental policy) toward those outside its borders (O'Neill, 1996; Pogge, 1992; Soysal, 1994). Moreover, the drastic increase in transnational migration has rendered anachronistic the assumption (central to the republican model) that those present in the state are, for the most part, its citizens. So is the expectation 257
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that to have rights one has to become a full citizen and assimilate to the dominant cultural model. In the previous paradigm, all that equality required for permanent residents was that blockages to the opportunity to acquire citizenship and to assimilate be removed. Today, however, the challenge of multiculturalism raised by new immigrants and, increasingly, by minorities makes this expectation (cultural assimilation as a right but also as a precondition for rights and equal treatment) both practically and morally untenable. So does the claim to rights by non-citizens who have no intention or desire to become citizens of the place where they reside even for a large part of their working lives. These developments mean that we have to think the next step theoretically and see that legal personhood can and should be disassociated from citizenship status as a principle of membership in a discrete state or polity. It is not enough to disassociate the rights of citizenship from ascriptive (ethnoracial) criteria of belonging. Rather, we have to acknowledge the disaggregation of the three components of the citizenship and renounce the goal of resynthesizing them on a single political level of either a mega-state or, even more far-fetched, a world government. Instead I want to make a normative case for the partial disaggregation and reinstitutionalization of the three components of the citizenship principle on different levels of governance. We must, in short, abandon the modern ideal (and ideology) of unified, uniform citizenship with each component mapped onto the same institutional level and protected by the same sovereign legal/political instance. Once we take the step of disassociating legal personhood from citizenship status in a discrete state, once we see that the various dimensions of citizenship are open to a variety of new combinations, the appropriate institutionalizations of each level can come into view so that new meaning can be given to the dimensions of legal standing, democratic participation, identity and belonging. Some progress has already been made. It has long been the case that non-citizens enjoy legal rights. The expansion in the past four decades of the range of civil rights that residents enjoy (from freedom to associate and assemble, to social rights, and even to vote locally) and the explicit articulation of the principle of the right to have rights (and a legal persona) for non-citizens and even illegal aliens in various international and national codes can be understood as a healthy and desirable disassociation of the status of legal personhood from one's citizenship status (Soysal, 1994). Indeed, many rights that used to be construed exclusively as the rights of citizens are now deemed to be rights of persons that must be respected everywhere. Resident non-citizens have not only the most basic civil rights but also the rights to freedom of speech, assembly, association and even claims to social rights, cultural expression and local voting (Soysal, 1994). Thus the further extension and enrichment of the civil component of the

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Cohen Changing Paradigms of Citizenship citizenship principle discussed by Marshall is on the international agenda even though each step is hotly contested and despite reversals. States are coming increasingly under the pressure of international agreements, supranational courts, transnational institutions, including regional federations, to acknowledge and protect human rights. This emergent international regime signals the diminished legitimacy of claims to exclusive and absolute territorial sovereignty of the nation-state: national constitutions, parliaments, governments and courts are no longer necessarily the highest authority when it comes to basic rights. Indeed, vis-a-vis supranational courts and the quasi-governmental bodies of regional federations, 'citizenship' has come to mean legal personhood and legal standing, not active membership in a demos delimited with respect to a territorially defined polity. The multiple levels of belonging and membership that are involved transcend the modem citizenship paradigm. I have already said that one aspect of this complex situation is the ability of persons to enjoy a wide range of rights in states in which they are not citizens and do not have or demand the same political status as full citizens. Another is the right of individuals or groups (such as indigenous peoples and minorities) who are citizens of the member states to appeal to supranational courts and other political bodies to protect their rights against their own polities. This, together with the increasing importance of the decisions made by the quasi-governmental organs developed through regional treaties, indicates the degree to which rights and powers are being disassociated from 'sovereign' states and the importance of understanding where their claims to legitimacy come from. Liberal cosmopolitans are quick to point out that civil as distinct from political society has taken the lead in reviving human rights discourses including the crucial idea that everyone has the right to have rights (legal protection and legal personhood) (Falk, 1992; Held, 1995). Claims for expanding rights irrespective of citizenship status, for new sorts of rights and for new forms of protections for rights emerge first from civil rather than from political actors (Alter, 1996). For civil society is a locus for the spontaneous development of free association, civil publics and new powers. Civil actors establish connections and relations that render economic and technological interdependencies 'social', as the proliferation today on the transnational level of a wide and highly articulated range of associations, non-governmental organizations, networks, interconnected publics and social movements witnesses. Thus a context is being created in which people can act in concert as peers, exchange opinions and develop the civic competence and trust needed for exercising influence on political entities, administrative bodies and courts. The relations established by international civil society are what carry and give political weight to the universalist dimension of human rights discourses. 259
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The more important supranational organizational structures become, the more important the role of international civil society is in monitoring, gaining access to and influencing them and keeping them open to the concerns of relevant publics. Thus supranational courts and the administrative/political bodies of regional federations do not function in a vacuum, but they do lack the democratic legitimacy that courts and legislative bodies on the level of the constitutional territorial state enjoy. The only meaningful way to rectify this legitimization deficit is to construe such quasi-governmental institutions as the receptors of influence from civil society and to institutionalize access to these along with forums for public debate. But this influence not only has to be institutionalized, it must also be 'legitimate' in the sense of following certain standards. For this we must recognize the increased importance of human rights discourses and supranational courts in such a constellation. From the point of view of the liberal cosmopolitan, the most important development in this regard is the emergence of supranational legal regimes that take cognizance of interdependency by acknowledging new subjects of international law ranging all the way from individuals, indigenous peoples, and oppressed groups to non-governmental organizations (NGOs). These developments enable cosmopolitans to parry the charges of foundationalism and abstract, empty moralistic universalism. The referent of human rights is no longer a mere moral ought, a 'worldless' humanity stripped of all bonds, relationships and context. Rather, human rights discourse now have a context (various interdependencies) and refer to real subjects. This implies that the appropriate symbolic referent of legal personhood is not the territorial state but, rather and after all, a globally interrelated humanity whose rights are articulated in international discourses and defended by a multiplicity of legal and political instances (Cohen, 1996). The diversity of levels of governance articulating and backing up rights is the key innovation here. Indeed it is increasingly the case that the legitimacy of rights now lies at the level of the international order. The transnational discourse of human rights articulated in international law and incorporated increasingly in supranational (regional) covenants and national constitutions, backed up by supranational courts, and monitored by a range of NGOs provides a normative framework that constrains governmental actors, even if it remains the case that states are the entities that implement civil and political rights and provide for social rights (Alter, 1996). In short, human rights discourses are now a pervasive feature of global public culture. Their effectiveness goes well beyond moralistic exhortation: they constitute an international symbolic order, a political-cultural framework, and an institutional set of norms and rules for the global system that orients and constrains states.

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Cohen Changing Paradigms of Citizenship The fact that these discourses refer to the rights of man rather than citizens should not be misconstrued. It does not return us to natural law dogma, to empty abstractions, or to foundationalist forms of justification. But it does leave us with a question: if the new international institutions render discourses of human rights more effective, what serves to ground either the principle of universal human rights or particular interpretations and institutionalizations of them? In the best analysis of the political meaning and possible justification of the discourse of human rights that I know, Claude Lefort argues that it is precisely the indeterminacy of the concept of man as the subject of human rights, the impossibility of deciding once and for all the content of human rights, the fact that nobody and certainly no governmental instance can occupy the place from which one could claim full authority to grant rights, that gives to human rights discourses their 'groundless ground' and their political, creative thrust (Lefort, 1986). The indeterminacy of the discourse of human rights is its greatest advantage. Instead of opposing the 'concrete' rights of Englishmen to the rights of man like Burke, instead of attempting to show that the indeterminacy of the concept of man entails specific content - man as member of the nation, or man as the atomistic, natural, needy individual, or even man as the pouvoir constituant - Lefort suggests that one should construe human beings- the referent of such discourses- simply as those who declare and recognize one another's rights and press for their realization in law (Lefort, 1986). Human rights discourses are part of the same symbolic universe as democracy because both 'say' that we grant to one another the possibility of testing out rights which have not yet been institutionalized or incorporated in a particular body politic. The abstractness of 'man' entails the contestability of who belongs to this 'we' and what precisely his or her rights are (Lefort, 1986). Indeed it is the availability of this discourse that allows the marginalized and the excluded to claim inclusion, those who are treated unequally to challenge discrimination, and those who are silenced to exercise voice. This understanding of the discourse of human rights cannot be grounded in a transhistorical principle nor does it derive its justification from membership in a particular polity. But it has a context and a 'justification' nonetheless. In answer to the unavoidable question of 'who' man as distinct from the citizen is, Karl Marx answered that 'man' is the member of civil society. Indeed Marx was right, although he badly misunderstood the nature of the modern form of the social (Marx, 1972; Cohen, 1982). While he grasped that modern society is disincorporated, and hence can no longer be represented as a totality that transcends its parts, he nevertheless tended to base the new form of social relations on the model of the market economy. That was the mistake. Instead, one must 261
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represent modern civil society as a transversal domain of social relations characterized through the continually shifting establishment of contacts, relationships, associations, networks and publics which can be expanded across locales, regions and borders, and 'of which individuals are the terms but which confer on those individuals their identity just as much as they are produced by them' (Lefort, 1986: 257). I have thus far given a liberal interpretation and justification for a disaggregated 'postmodern' paradigm of citizenship. Nevertheless, I do not want to place myself in the camp of liberal cosmopolitans who hypostatize the juridical component of citizenship on the misleading assumption that we can make do with legal and administrative guarantees of human rights and legal personhood while ignoring issues of democratic participation, symbolic identity and legitimacy. Certainly the developments just discussed give body to the idea of universal human rights, institutionalizing them in a number of instances without reincorporating right and power on a single level (Lefort, 1986). The proliferation of instances (courts, various types of federation and pacts among polities) on the postand international level articulating and protecting the human rights of persons is indeed noteworthy. But even with such support, civil society cannot 'monitor' or influence these institutions or existing states on its own. Indeed, civil society itself requires monitoring. Civil organizations can be exclusionary, unjust, and anti-egalitarian, as we all know. Global justice requires attentiveness to the factors of exclusion and inequality in civil as well as political society. For this, and in order to keep states just, the democratic component remains indispensable in my view. Yet, as we have seen, it will always require a particular mode of identification to have any motivating force. Of course, the democratization of all existing states and emergent regional polities should accompany the development of supranational institutions of justice. But the crucial issue would then be to distinguish between the set of rights that should belong to citizens as members of a discrete polity, the rights associated with residence and the set of rights that should belong to everyone. What place should the democratic component of the citizenship principle have in a postmodern, disaggregated paradigm of citizenship applied to a political universe where institutional powers and sovereignties enunciating and partially defining rights exist on multiple levels and which renounces the phantasm of a final absolute authority incorporating right, power, and embodying the identity of the whole? Let me try to approach this question from a democratic civic-republican point of view. Recall that the concern here is with participation, the ideal of selfgovernment, and the democratic legitimacy of law and policy. If full citizenship in a state is to continue to have any meaning in a postmodern paradigm, its core would have to be democratic participation, involving 262
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Cohen Changing Paradigms of Citizenship at the very least the right to vote and stand for office and hence to participate (directly or though representatives) in legislation and policymaking. Citizenship from this perspective involves the exercise of power and not only of influence. But who then decides who gets to enjoy full democratic citizenship rights in this sense and on what basis? Membership in the active demos must, as we already saw, be delimited, and it has an irreducible ethical and symbolic dimension to it. Identification with one another as a demos, as a democratic community with something in common, and with a shared fate is necessary to motivate participation and solidarity among the citizenry. Moreover, the demos cannot initially be defined through democratic procedures without infinite regress regarding who is an initial member. Communitarians conclude that history and tradition supply the answers here: the identity of a demos and its thickness are not chosen but given. If the political community wishes to condition membership on commonalties formed over time, if it wishes to preserve its cultural identity through political means, it has every right to do so in this approach. The democratic civic republican, however, would insist that the relative thickness of national identity be open to democratic redefinition and, hence, could be made thinner, more open and receptive to diversity than a more traditionalist communitarian would prefer, should the demos so decide. Where the democratic conception would be 'postmodem' and 'disaggregated' from this point of view, is in the readiness (already exhibited by Arendt) to acknowledge the right of everyone to full citizenship somewhere. This is, of course, a universal moral principle that would have to constrain every demos's citizenship laws. The liberal and republican approach could converge even more if the principle of non-discrimination also informed whatever criteria the demos articulated regarding access to citizenship so as to avoid unjustifiable exclusions. Finally, there are good democratic as well as liberal grounds for avoiding the permanent presence of a large immigrant population that is permanently denied access to citizenship: this tends to tum democracy despotic (the rule of privileged 'peers' over a subject minority or even majority). Beyond these strictures, however, the understanding of the thickness or thinness of the identity of the demos would have to be left to the democratic political process to decide. This is where the democratic dimension of the citizenship principle has to lead. If, however, the above principles are observed by every self-governing democratic polity, and if the basic rights of non-citizens as well as citizens are respected and backed up by supranational instances, including their right to exercise voice in civil publics, then the exclusiveness of the demos would be tempered in an

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important way. After all, political freedom always presupposed personal autonomy, at least for the citizenry, even if the justification for personal freedom through the doctrine of rights had to wait for modem liberal theorists. It is democracy that opens a creative and permanent tension between the person and the citizen, the juridical and the political. But there is one more concern of the democratic civic republican that must be attended to. A key objection to liberal cosmopolitanism is that as the human rights that are enunciated on the supranational level, backed up by courts and other governmental instances, become more extensive, the less is left to the demos of any polity to do. This makes the democratic component of the citizenship principle paper-thin and cheapens participation. It would, moreover, violate the principles of democratic legitimacy to leave the specification of all or the most basic rights up to courts, lawyers and bureaucrats. The starting point for a disaggregated model of citizenship and the imperative behind the articulation of universal rights of persons is the presence of large numbers of non-citizens in most countries and hence the impossibility of pretending that all those subject to or affected by the law (given interdependency) are also its authors. Consequently, the rights of non-citizens have not been elaborated as special rights but as universal rights to which, as indicated earlier, citizens themselves make claim, triggering the intervention of supranational courts on their behalf against their own states. There is no convincing democratic argument against the legal personhood of non-citizens. However, when the articulation of universal rights applies to the citizenry as well, this raises the legitimate fear that in the long run there will be nothing left for the demos to decide. The demos, in order to be politically autonomous, must have the competence to articulate and specify certain principles, certain areas and certain key rights regarding the citizenry, otherwise democracy is eviscerated. Thus even in the postmodem disaggregated conception, there remains a tension between the various components of the citizenship principle: the liberal and democratic components, not to mention the identity dimension, pull in opposite directions. But I believe that in the disaggregated model the tensions can be reduced if the ideal of exclusive state sovereignty and territoriality is abandoned, if a plurality of instances of governance are acknowledged, and if some key rights are articulated and justified in the civil public spaces of transnational civil society and guaranteed by the supranational instances of a partly post-national international regime. Sovereignty must be made ever more democratic and guided by principles of justice. Serious reflection on the institutional structure, competencies and powers of the components of the emergent supranational regime, especially of supranational courts and the quasi-governmental bodies of regional federations but also of member states, is now crucial.
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Cohen Changing Paradigms of Citizenship New meaning can certainly be given to the multiple levels of belonging, the various loci of identity (local, national, regional, global), the differing forms of participation and the intersecting complexes of rights, duties and loyalties that characterize multicultural polities existing in a global context. But we must honestly acknowledge that the distribution of competencies in specifying rights is an issue that can only be resolved politically. Hopefully this will be done democratically, informed as much as possible by considerations of justice. We will avoid the Scylla of foundationalism and the Charybdis of democratic despotism only if we acknowledge that substance and process, justice and democracy are in a recursive relationship to each other. The assertion of basic rights in civil public spaces requires moral justification through the giving of substantive reasons and free argumentation. An independent judiciary to protect rights is crucial. But so are democratic political institutions that legislate and make policy in light of publicly justifiable reasons (Gutman and Thompson, 1997). Democracy cannot guarantee justice, but neither can moral justification appeal to some absolute truth that exists independently of consensus. My abstract discussion of the logic of citizenship on a 'postmodern' paradigm has institutional implications. I would like to suggest that instead of assuming that the future will entail either a new system of sovereign federal mega-states, a return to liberally national nation-states, a world government, or some sort of cosmopolitan world legal order, one must imagine a combination of the elements of all of these. The idea of world government in which liberal and democratic considerations would merge is both implausible and undesirable since it would threaten political diversity. As already stated, quasi-governmental institutions must be open to the influence of civil society. Governmental structures on the national, supra- and subnationallevels must have 'receptors' for this influence. Indeed, it is entirely possible that political parties might emerge on the supranational level to supplement national parties and help to articulate and redesign political institutions in a democratic direction, as Habermas hopes. Institutional redesign that makes federations more democratic and states more open to norms articulated on higher levels and to the diversity emerging internally is also called for. But it is not necessary to envisage federations replacing the territorial state. Instead we must be open to a plurality of forums, and of modes of institutionalizing voice on the supranational level. Existing state jurisdictions would certainly retain control in many areas and be the instances that implement many rights and norms articulated on other political and legal levels (covenants, court decisions and so forth). Democratic, constitutional nation-states could remain a level of political identification for the local citizenry. But new identities and new forms of representation could follow
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new institutionalizations, complicating the levels of belonging and allegiance in salutary ways. At the same time each state's sovereignty could be tempered by the rules of the federation and other supranational bodies. My theoretical point is that only if the various elements of the citizenship principle are disaggregated and reinstitutionalized on independent levels of governance with different powers articulating and backing them up will they be able to counter the flaws intrinsic to each of them and function productively as mutual counter-powers. For example, the disaggregation of the rights of persons from the rights of citizens has already diminished the opposition between citizen and alien, allowing for a greater separation of the identity component and the rights component of the citizenship principle. It is only a further development in this direction that would allow for the universalistic principles of justice (equal concern and respect for every individual) and the principle of democracy (participatory parity in public life) to be mutually reinforcing and to inform everyone's conception of the good.

Note
I thank Gerald Newman of Columbia Law School and Nadia Urbinati of Columbia University's Department of Political Science for very helpful comments on an earlier draft of this article. I also thank Jeff Alexander for inviting me to deliver this article at the plenary session on 'Ethnos and Demos' at the 1998 ISA meeting in Montreal.

References
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Biographical Note: Jean L. Cohen is Professor of Political Theory at Columbia University. She is the author of Class and Civil Society: The Limits of Marxian Critical Theory and co-author with Andrew Arato of Civil Society and Political Theory. Her current project is a book on Sex, Law Privacy and the Constitution: Dilemmas of Juridification in the 'Domain of Intimacy'.

Address: Department of Political Science, Columbia University, New York City, NY 10027 (739 I.A.B.), USA. [email: JLC5@Columbia.edu]

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