Seyla Benhabib, The Rights of Others; Aliens, Residents and Citizens, New York, Cambridge University Press, 2004
In this book, Seyla Habib is concerned with the issue of political membership of non-citizens; refugees, migrants and asylum seekers in a post-national global world. Political membership according to her is “the principles and practices for incorporating aliens and strangers, and… into existing polities” (p.1).She bases all her principles under “democratic iteration” ( p.19); a process that allows people for debate and deliberation even on law, that one should not be only subject to law, but also to have a say in the making of laws which exclude them. However, throughout the book lacks to clarify the contradictions on territoriality of citizenship, legal boundaries of membership, as well as the gap between sovereignty and human rights in her discussion on political membership.
Following Kant’s principle of right of hospitality, Benhabib argues that despite the contradiction of human rights with legal boundaries of states, in that national laws exclude defining rights for all, “the right of hospitality demarcates a new level of international law which had been previously restricted to relations among sovereign heads of states” (p.21-22). She interprets these rights in the way that, when strangers or foreigners reaching to borders from other countries should not be treated as enemies and aliens as far as they do not harm the host society. They have the right to stay in the new society perhaps because of inability to stay in other places by reasons of war, or violence and prosecution. I agree that this right to hospitality does have a moral obligation, but is morality here compatible with legality and jurisdictions? It is only pointed out that the duration of such a hospitality can be authorized by “contract of beneficence” (p.28), but by who, based on which criteria, and that who is a guest and who is not, remains unexplored. This moral call in my view unfortunately is incapable to comply with a legal enforcement or even not a legal contract, it is just a temporary agreement to host the uninvited guests for a short period, and thus it cannot do justice for the non-citizens only by a moral plea. However, I would agree that it does provide an alternative on a volunteer basis, as she calls it “to create quasi-legally binding obligations through voluntary commitments and in the absence of an overwhelming sovereign power with the ultimate right of enforcement” (p.29). Even then, the contradiction between obligatory and voluntary remains unclear and problematic.
Secondly, Benhabib distinguishes the Westphalian concept of sovereignty of state in which, “states are free and equal; they enjoy ultimate authority over all objects and subjects within a circumscribed territory” (p.40), and the liberal international concept that, “the formal equality of states is increasingly dependent upon their subscribing to common values and principles such as… human rights and the rule of law and respect for democratic self-determination” (p.41). Defining these, to back her previous moral claim of Kant, she underestimates the role of laws in saying that in the modern liberal democracies legitimacy and source of authority of law is not just constitutional but also based on universal principles of human rights. She here focuses less on the functionality of laws and legal institutions such as police and courts in national levels that can violate the basic human rights such as deportation of refugees from Europe. It is agreeable that modern nation-states are signatories to a range of treaties of human rights and so on, but between legal control of state and inefficiency of human rights regime, we have to enforce legal actors to respect and protect human rights.
Based on Hannah Arendt’s idea of “right to have right” (p.56), Benhabib again tries to establish a moral and right-based principle of membership. She argues that “The right to have rights today means the recognition of the universal status of personhood of each and every human being independently of their national citizenship” (p.68). Here, this ideal does not benefit stateless people for example, who have no national citizenship. A second interpretation of right to have right accordingly is having the ability to stand against a law or a norm that excludes a person from membership. Ideally, this is a perfect principle that a person based on his/her personhood and moral belonging to society, has the right to be a political and civil member too, that allows him with a right to appeal for example, but Benhabib does not provide a mechanism to operationalize this theoretical principle here. Yes, we do have international treaties on recognition of statuses of all differently situated people, but are they enforced? If not, why not? This is what remains unanswered here under a right-based account of this principle.
Benhabib criticizes Rawl’s The Law of Peoples that says, “A democratic society, like any political society, is to be viewed as a complete and closed social system” (p.74). She is right that under such a closed system migration does not make sense at all, because it claims that it’s fine that all citizens within borders are having complete life and are satisfied with that. Her alternative, however, is that, “the right to membership ought to be considered a human right… and it ought to become a legal right as well by being incorporated into states’ constitutions through citizenship and naturalization provisions” (p.73). I totally agree with this, but what is the structure that we can build on, and to insert unrecognized rights in constitutions. An arbitrary legal boundary according to her is not moral, but as I mentioned previously, can morality alone work and do justice to strangers? She lacks a clear way to transform these rights and moralities to laws and privileges that strangers own based on their humanness.
Under her cosmopolitan federalism claim, in which Benhabib prioritizes human rights as universal facts over laws, and that states are agents to protect those rights, she adapts Kant’s “principle of outer freedom” (p.34), that says because we cannot stop migration, we have to consider the following: “first, that the earth’s surface will be apportioned in to the territory of individual republics; second, that conditions of right regulating intra- as well as inter-republican transactions, are necessary; and finally that among those conditions are those pertaining to the rights of hospitality and temporary sojourn”(p.34-35). This calls for a right-based admission of migrants to any state after borders are created, because originally the surface of earth belong to all. In modern thought, however, she forgets about freedom of insiders, and argues that once a person is admitted in a land, s/he should have the right to all civil and political rights; “right to association, property, and contract” (p.140). She is concerned enough about status of being a “permanent stranger” (p.140), but is she not forgetting that not all people get admission to states easily or legally. In my view despite her moral arguments, she lacks the issue of legal challenges to admission, crossing borders and so on, leave alone undocumented and dismissed strangers.
Benhabib examines her model of political membership as cosmopolitan federalism in the context of European Union citizenship. As she says EU citizenship is “intended to designate an active civic identity. Citizens of EU states can settle anywhere in the union, take up jobs in their chosen countries, and vote as well as stand for office in local elections and in elections for the Parliament of Europe” (p. 148). My criticism here is that even in the EU, membership is defined and limited by laws first. Then, supra-national privileges of citizenship that comes along the EU citizenship is also based on a national citizenship. Although she admits the differences of sovereign laws of each states in response to migration in Europe, which means not all states are sufficiently responsive to migration problems, she instead studies more treaties and agreements on the formation and grounds for the EU institution such as Council of Europe and European Parliament. My suggestion however is that we need to explore more on what makes states unfollow those rights and values that EU puts forward. Treaties may look fine on paper, but they are not practiced. We need to find ways to tackle them or to adapt our “globally federal” norms to local levels.
I acknowledge the application of democratic iteration in two case studies of “scarf affairs” (p. 183) in Germany and France that allowed the Muslim women to appeal against violation of their freedom to religious beliefs, and dismissal from public occupation, yet such examples by themselves show the role of arbitrary laws and strangers’ exposure to them. Contrary to Benhabib, I think rights can be universalized when the exclusive laws are reformed. Nonetheless, Benhabib, as such a great scholar in this very field disappoints us to not distinguish between “Afghani” (p.198), and Afghan in her case study of Fereshta Ludin in Germany.
In short, this book aims to provide a right-based appeal to human rights that would stand over laws, which exclude strangers from political membership. Following Kant and Arendt’s moral accounts of hospitality and right to have right Benhabib’s conception of those either do not provide a feasible mechanism to practice those rights. Instead, I think Rawls’s idea of complete and closed democracies, is practiced more, and to some extent even within EU. Nonetheless, her sample of EU citizenship as cosmopolitan federalist, despite the debate of sovereignty visive human rights, provides capacities for democratic iteration to challenge one-way normative laws effecting strangers, and it is proved in the case studies.
American University of Central Asia