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The Cosmopolitan StateH Patrick Glenn

Print publication date: 2013Print ISBN-13: 9780199682423Published to Oxford Scholarship Online: Sep-13DOI: 10.1093/acprof:oso/9780199682423.001.0001

Cosmopolitan Citizens

H. Patrick Glenn

DOI: 10.1093/acprof:oso/9780199682423.003.0010

Abstract and Keywords

This chapter examines the nature of citizenship. It discusses how thedefinition of citizenship has been difficult since the beginnings of thecontemporary state. It would be a problem ‘endemic in modern state-building’ and has only become more acute given the contemporary mobilityof populations. It is also argued that an exclusivist conception of citizenshipis increasingly incompatible with state practice in the world. This is reflectedboth in a decline in the actual use and importance of citizenship and inincreasing flexibility and accommodation in its definition.

Keywords: citizenship, nation, contemporary state, population mobility

Throughout the nineteenth and twentieth centuries major efforts weremade to bring about the closure of each contemporary state around aparticular nation. Given the fluidity of the idea of a nation, however, theywere accompanied by more formal and positive efforts to institutionalizethe connection between people and the territorial state, through thenotion of citizenship. This already tells us something about the inoperativeor impossible notion of a nation, which would require this type of ‘finalcement’of national belonging. The closure around a single nation wasunsuccessful, given the inexorable diversity of populations.1 The notionof citizenship has survived, however, and many people of the world todaydefine their identity, at least in some measure, in terms of their formalcitizenship. Yet there are ongoing questions as to its nature, and thesequestions ultimately have their source in the underlying ambiguity of the

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idea of a nation. How is citizenship to be defined? Can it be unequivocal incharacter, over time, or will it be marked by the underlying cosmopolitanismof the population to which it applies?

Citizenship over Time

In the circumstances of the eighteenth century it was impossible to definecitizenship in terms of the main characteristics of alleged nations. Languageboundaries did not coincide with those of the territorial state; religions werediversifying themselves within state territory; descent was a personal andnot territorial connection. None of these criteria could provide by itself aunified population base in a given state territory. Some form of connectionof people to state was essential, however, even if thinner than language,religion, or descent. The notion of citizenship therefore had to be invented,or perhaps reinvented, as an indication of loyalty to a territory. This modernnotion of citizenship was appropriate for a state territorially defined butit presents two major deficiencies. The first is that it has no inherent,historically justified, content. Content had to be provided by legislation, sowe see clearly in relation to citizenship the fundamental information baseof all forms of human identity. The citizens of a state are perhaps mostclearly of all an epistemic community. There is no inherent citizenship; it isstipulated by national legislators for each state.2 Just as each state (p.188)is different from every other state, moreover, so each national definitionof citizenship differs from every other definition of citizenship. Bellamytells us that ‘different national traditions of citizenship emerge from theinteractions between…various factors’, just as the structure of each stateis dependent on the interaction of common laws and local circumstance.3Citizenship thus emerges, in general terms, as a ‘mechanism for allocatingpersons to states’,4 a status that is formal and unsentimental, in German‘Staatsangehörigkeit’ (belonging to the state).5 Any sentiment of belonginghas to be developed by other means.

The second deficiency of citizenship is that it could only function as anadditional status or criterion of membership in a community. No nationallegislator could abolish linguistic or religious communities, for example, sothe sense of belonging to a state had to be fashioned alongside, and notin place of, other senses of belonging. The logic of territoriality would evencontradict the ‘communal construction’ of the social, so while citizenshipwould be egalitarian and liberal in character (at least within a state) it couldnot by simple enactment overcome the communally constructed.6 Equalityof citizens yes, but much remained to be said on the place, priority, and




entitlements of citizenship, as opposed to other loyalties, and this mostobviously in jurisdictions in which the contemporary state has not been anentirely indigenous production.

Contemporary states did look to historical precedent in fashioning their lawsof citizenship, or even ‘nationality’. Given a certain form of democracy inancient Greece the Greek notion of citizenship (politeia) was an obviousmodel. Aristotle held an expansionist view of citizenship, moreover,identifying it in large measure with active participation in political life.7 Thiswas understandable, since the ancient Greeks had other forms of humangrouping and the Greek model of democracy had to make its way amongstthem. It was participation for civic purposes, beyond earlier groupings.‘Citizenship is civic’ and the civic notion of the association was whatdistinguished the Greek city-states, in their view, from the ‘barbarians’.8Aristotle’s participation, however, was based on a prior status (p.189) and hisinsistence on democratic participation camouflaged to a considerable degreethe limited or restrictive nature of this status. It passed by descent, but inAthens in the fourth century BCE there were 21,000 citizens, 10,000 metics(foreign residents), and 400,000 slaves.9 Women who had Greek citizenshipdid not vote and there is debate as to their status as citizens.10 Aristotle’sdefinition of citizenship was meristic (from the Greek meros, or part), sincea part of the phenomenon (here participation) was taken as the whole whilethe rest was abandoned or ignored.

The Aristotelian idea of citizenship as participation is one that remainsalive today since it is essential to a functioning democracy. Citizenship isspoken of as a ‘desirable activity’ and distinctions are made between ‘thick’and ‘thin’ or ‘active’ and ‘passive’ forms of citizenship.11 This is all to thegood, though the hortatory notion of active citizenship speaks to politicalparticipation rather than to the underlying legal notion of status. The lattercame rather brutally to the fore with the Romans (whose civitas has given usthe modern word), not themselves convinced of the virtues of democracy butvery committed to the idea of membership in empire. By 212 CE citizenshipwas extended to all those living under Roman rule, eliminating earlierdistinctions between cives and peregrini in the provinces.12 Distinctionsthereafter would be drawn only on the basis of class and wealth (andthey remained plentiful).13 This Roman notion of the status of citizenship,unencumbered by notions of democratic participation,14 was that whichwould be taken over by the monarchies and then by the contemporary statesof Europe. It was a very slow process, linked closely to the development of




territorial states and to the slow articulation of how citizenship could possiblybe defined.

(p.190) The necessity of some modern form of citizenship became clearerwith the slow emergence of the territorially bounded, hierarchicallyorganized, contemporary state. In the sixteenth century Bodin wrote of the‘franc sujet’, the free subject, and the expression is indicative both of theexclusionary nature of the status and its feudal and personal nature.15 In1608 in England Calvin’s Case decided that a Scot born in Scotland afterJames VI of Scotland became James I of England in 1603 was a subjectof the English crown and therefore entitled to succeed to real propertyin England.16 The underlying notion was feudal: the crown subject wasthe person born in a territory subject to the crown’s authority.17 Thesenarrow and personal links of allegiance had no wider spatial dimension;they clearly could not exclude other loyalties and other laws. Bodin did seeclearly, however, the need for conceiving of the population as composed ofindividuals if the law of his sovereign was to be effective. His view of societywas ‘atomistic’.18 A century later Hobbes too saw the necessity of placingthe ‘subject’ under the sovereign’s exclusive law, in the face of the anarchyotherwise perceived.19 Pufendorf followed, citizenship for him including theprerogatives of the members of the commonwealth.20 The necessity of anotion of citizenship was thus becoming evident in the circumstances of thecontemporary state. The key conceptual development would then have beenrecognition that the definition of citizenship fell within the domain of politicaland legal authority; the emerging state was capable of bringing about theclosure of its own population.21 We have seen that this involved the sleightof hand that ‘the people’ could form the state,22 and now it could provide anongoing definition of who that people was. The challenge of definition thenhad to be met.

(p.191) Of contemporary states France was the theoretical leader inattempting to define its citizens. Prior to the French revolution there wasno legislative definition of citizenship and subjects were determined whereit was necessary to do so, in a large and casuistic case law dealing mostlywith succession to land in France, from which non-subjects were precludedby royal powers of escheat (the ‘droit d’aubain’). Having the ‘qualité deFrançais’ depended over time and cases on various combinations of birthin France, a parent or parents recognized as French subjects, and havingresidence on French soil. Residence in France was seen as paramount, oftencomplemented by circumstances of birth given the absence of controls onentry onto the territory.23 Being French meant largely not being subject




to the disabilities attached to those determined to be foreign, requiringjudicial determination in all cases.24 There was naturalization, but this wasdependent on previous determination of status and did not yield the fullstatus of a ‘natural’ French person.25 The most dramatic effect of the Frenchrevolution was to give effect to Bodin’s idea of a sovereign commonwealthand its subjects, with no distinctions to be drawn amongst them. Jewsbecame citizens like all others and for the first years after the Revolutioneveryone living in France was automatically taken to be a French citizen.26

Then the inevitable doubt and complexity set in. French revolutionarythought was liberal in the classical sense and citizenship should therefore belargely a matter of individual autonomy and consent. Yet this was difficultto implement given the necessity of a citizenship ascribed from birth, andthere were also strong national or communitarian concerns, emphasizingthe need for a homogeneous citizenry.27 Simple residence would not do.Was the criterion to be birth on the territory (the ius soli) or descent fromexisting citizens (ius sanguinis)? The French Civil Code of 1804 opted for thelatter, nationality being attributed by fatherhood and accorded at birth.28 Bythe end of the century, however, the wind had changed and the ius soli hadincreased in importance.29 Neither of these principles was seen, however,as free-standing and autonomous; complementary and exceptional criteriawere inevitable. Nationality became ‘an object fraught with contradictoryrepresentations, beliefs and stereotypes’.30

(p.192) In contrast to the French revolution, that of the USA did notbring about radical and egalitarian change in understanding of the newcitizenry. Smith surmises that the great aim of a ‘more perfect Union’compelled silence or ambiguity on crucial issues of definition, and the writtenConstitution scarcely mentioned citizenship or nationality.31 Citizenshipitself would not have escaped the clutches of earlier group understandings,those of race, ethnicity, gender, and religion.32 It was not until the secondhalf of the the nineteenth century that the Fourteenth Amendment to theUS Constitution overcame US case law excluding blacks from citizenship,establishing the ius soli as an operative and even constitutional principle,for everyone.33 It was not, however, an autonomous and exclusive principleand was complemented by birth citizenship based on parentage where birthoccurred outside US territory, though subject to further exceptions andconditions.34

Most see the USA as adhering to a common law principle of the ius soli,though it is much tempered and very complex in operation. England too hashistorically been seen as adhering to what would be a territorial common




law principle, though the feudal territoriality of Calvin’s Case has been muchaffected by legislation, gradually becoming subject to many exceptions.35

Notably, a move towards citizenship by parentage or descent has beenidentified as early as 1350.36 There have been important contemporarydevelopments.37

The visibility of a ius soli principle in France, the USA, England, and manyCommonwealth countries is often contrasted with a more anchored iussanguinis principle in continental countries such as Germany or Austria. Hereagain, however, nuances are essential. If Germany originally followed thenineteenth-century French ius sanguinis model it did so in continuation ofa primacy of (p.193) descent that prevailed prior to the emergence of theterritorial German state, in the ‘Kleinstaaterei’ of the times. There were iussoli-type exceptions.38 Germany became a state, moreover, in 1871, at theheight of notions of nations and nationalities, so some preponderance ofthe idea was to be expected.39 It would be inaccurate, however, to contrastFrench and German law in terms of ius soli and ius sanguinis. The oppositionsimply would not hold up as a matter of comparative history.40

Defining citizenship has therefore been difficult from the beginnings ofthe contemporary state. It would be a problem ‘endemic in modern state-building’41 and has only become more acute given the contemporarymobility of populations.

Citizenship and Mobility

People have always moved: locally, nationally, even in an intercontinentalmanner.42 Most people, however, do not move and migration remainstherefore an exceptional phenomenon.43 It is increasing in absolutenumbers, however, and this has a more profound effect on what have beenperceived as nation-states. The foreign-born population of contemporarystates is now systematically increasing. It now represents one-third ofthe entire population of Luxemburg, one-quarter of the population ofSwitzerland, one-fifth of that of Canada.44 In the OECD countries thepopulations of France and Italy contain the lowest foreign-born percentages,at 11 and 7 per cent respectively.45 In both cases this involves (p.194)millions of people. At present 214 million people in the world live outsidetheir state of origin.46 The figure is only that of first generation migrants.The number of international marriages is increasing significantly, on a globalbasis.47 The predictions are for ‘more and more ethnically heterogeneouspolitical communities’.48




In the face of increasingly mobile populations, states in the last centurydeveloped highly sophisticated means to control their territorial borders.The passport was invented about the time of the French revolution and itsuse in traversing borders became generalized and mandatory in the earlyyears of the twentieth century.49 There have also been less sophisticatedmeans such as walls. The twentieth century in general can therefore beseen as one of ‘liberal nationalism’ in which states sought to implement aprinciple of human equality internally but brutally abandoned it at territorialborders.50 Human beings may become ‘illegals’ by their simple geographicalpresence, though there are immense problems of detection and sanction.51

The movement has been well away from, and not towards, Kant’s notion of aius cosmopoliticum (p.195) of universal hospitality.52 Global governance hasyet to take such a first, fundamental step.53

The dimensions of international human mobility are such, however, thatno state can exercise the control that its political authorities might preferto exercise. Control of both citizenship and immigration is affected. Sincecitizenship has no fundamental core, it consists at present of the residueof nineteenth-century national attempts to provide a lasting definition,combined with current efforts to implement a national ‘demographic policy’.The results in each case are highly complex, the complexity itself indicatingongoing perplexity and contest.54 In some destination states, such as theUK, the ius soli has been sharply limited; in others, such as Germany, it hasbecome more significant.55 Each state responds to its particular place in thepatterns of international mobility. Immigration can be channelled in somemeasure but many western states are dependent on it for economic growth,given declining birth rates and employment needs. There are intermittentbut recurring outbursts of xenophobia amongst local populations, longimmersed in notions of the nation-state, but some have concluded thatit is currently ‘impossible’ for states to shape their populations and thatcurrent migration processes are irreversible.56 Current efforts to test the‘cultural integration’ of newcomers are highly problematic in terms of theircontent and are (p.196) subject to open ridicule.57 Notions of citizenship areunhelpful in providing criteria for social integration.58

National control of migration is further hindered by international and evennational efforts to impose rule-of-law constraints on the process of control.Executive decisions on claims to entry become part of the normal processesof administrative review and even broadly drawn privative clauses may besubject to judicial reading-down.59 Today refugees are a particular categoryof migrants. They emerged with the population movement attendant on the




idea of a nation-state,60 and it is fitting that they are now broadly protectedby treaty from immediate refoulement.61 This leaves much room forexpedited national procedures, particularly for return to ‘safe’ third countriesthrough which a refugee may have passed, but the most exaggerated formsof refoulement are now largely excluded.62 The refugee has even beenseen, given the decline of the state, as the ‘central figure of our politicalhistory’.63 The challenge of human mobility to state resources is indicated byan emerging pattern of outsourcing control, territorial and extraterritorial, toprivate actors.64 There is also a widespread practice of amnesties for thosehaving gained entry illegally, so that residence and even eventual accessionto citizenship do not depend on adherence to state norms.65

Given mobility, millennia-long human loyalties, and the inherent thinness ofcitizenship, multiple and overlapping forms of human identity are inevitableon any national territory. Citizenship cannot pretend to hold the status ofa ‘unique categorization’ of people and arguably does not do so. Even if itdid, important objections have been raised to any such unique categoricaldevice for human beings. For Amartya Sen, civilizational clashes would evenbe conceptually parasitic on efforts to implement such an exclusivist conceptof identity.66 Others insist on the primacy of non-state identities in moststates of the world, where notions of territoriality and citizenship are onlypart of the ‘imported state’.67 This is not fatal to contemporary forms of stateorganization; they remain justifiable for many in the abstract, and justifiedin their implementation in many parts of the world.68 It is only an exclusivistconcept of citizenship and the state that appears both unjustifiable andimpossible to realize. No ‘stark dichotomy’ between a political society’sinside and outside would be either possible or desirable. The contested andhistorical variation of citizenship also precludes any exclusivity of its role.69

An exclusivist conception of citizenship is also increasingly incompatiblewith state practice in the world. This is reflected both in a decline in theactual use and importance of citizenship and in increasing flexibility andaccommodation in its definition.

(p.198) Citizenship, domicile, and residence

The decline in the importance of national citizenship is best seen in historicalperspective, and in relation to alien status. Until the nineteenth centuryaliens were not only precluded from participation in national public life,they were also in considerable measure excluded from enjoyment of rightsof private law. In common law jurisdictions this flowed from particular




restrictions or prohibitions under the common law, for example on inheritingland by intestate succession; in many civil law jurisdictions it flowed from amore general denial of the ‘capacity of enjoyment’ (‘capacité de jouissance’,‘Rechtsfähigkeit’) of private law rights, principally again in matters ofsuccession. Aliens were in some measure outlaws.70 These specific andgeneral restrictions on legal personality were laboriously done away withthrough the late eighteenth and nineteenth centuries, so that today thealien is subject only to those private law disabilities that are the object ofspecific enactment, and now these are usually subject to constitutionalreview.71 Paradoxically, citizenship thus declined in significance through theheyday of the nation-state, as the human person became widely recognizedin national laws as a subject of rights. It did acquire some greater visibilityin the implementation of the rights of aliens, since many states followed theteaching of Mancini in the nineteenth century and chose to submit manyquestions of private law, in matters of family law and successions, to the lawof a person’s nationality. This was a so-called ‘bilateral’ rule, however, andoperated in favour of both local and foreign national laws.72

The story of citizenship or nationality in the twentieth century, however,was one of steady decline. If the rights of human beings were ‘positivized’ innational laws, these same national laws often extended them beyond citizensto ‘persons’ in general.73 Similar considerations led to alienage or nationalitybeing judicially established as a ‘suspect’ category in US constitutionallaw, subject therefore to ‘strict’ judicial scrutiny and requiring particularjustification to avoid incompatibility with the guarantee of equal protectionof laws.74 In the European Union discrimination on the basis of citizenshipis formally proscribed, as a means of ensuring freedom of movement, andits interpretation extends to ‘indirect’ (p.199) national discrimination wherethe touchstone or operative criterion of the legislation is residence (affectingforeign nationals more than local ones).75 The actual legal use of citizenshipas a criterion for benefits or entitlements has correspondingly declinedin most states, while more cosmopolitan notions of domicile or residence(requiring no grant or conferment by a state) have become more frequentin application.76 US law would be decidedly ‘ambivalent’, and not uniformlyhostile, towards the alien.77 When local or national politics turns xenophobic,as in a ‘nation-state’ it inevitably must, correctives often come at otherlevels of government. Given toughening of welfare rules against aliens at thefederal level in the USA in the 1990s, ‘almost all’ individual states extendedbenefits, while there was later restoration of many benefits at the federallevel.78 There is also a discernible movement towards granting rights ofpolitical participation, at least at local or municipal levels, to non-nationals.




Even the articulation of rights and duties is not an exclusive preserve of thecitizen.79

The decline of citizenship is most obviously evidenced by a general declinein its acquisition. In their vast majority aliens who have acquired permanentresidence status in a new state do not acquire the citizenship of that state.The percentage of those who do is remarkably small, under 10 per cent inEuropean Union countries but also not high, and declining, in other countries (p.200) of immigration.80 In the USA acquisition rates increased followinglimitation of welfare rights of aliens in the 1990s but has declined onceagain. In 1970, 63.5 per cent of resident aliens in the USA acquired UScitizenship; by 2000 the figure had declined to 37.4 per cent.81 The benefitsof citizenship (principally the right to vote) would not outweigh the hassle.82

The decline in the use and importance of citizenship has had importanteffects on its definition.

Accommodating citizenships

A first indication of a more accommodating concept of citizenship is foundin the multiplication of expressions used to describe it, in less than preciseterms. There is much discussion of ‘transnational’, ‘global’, ‘world’, ‘post-national’, ‘multi-cultural’, ‘differential’, and ‘plural’ citizenship, though thereis also much criticism of the illusory or inexact use of these expressions.83

Some of them are terminological attempts, in the language of citizenship, tocapture notions we have already seen, such as the participatory characterof membership or cosmopolitan and transnational obligations.84 Discussionof ‘denizens’ is more precise in its objective, in designating those lackingformal citizenship but having associated themselves with state structures insome appropriate degree and enjoying many of the attributes of citizenship.It has historical pedigree and speaks clearly to present circumstance, alsopresenting the advantage of challenging ‘the dichotomizing language’ ofmembership.85

(p.201) The most precise examples of cosmopolitan citizenship, however, arethose in which citizenship is aggregated, so that it is cosmopolitan accordingto the dictionary meaning of the term, as having characteristics that arisefrom different countries.86 The most visible example in the world of thisaggregation of citizenships is now found in the European Union, where thecreation of European citizenship has been by way of addition to the existingcitizenships of the states of Europe.87 The citizen of France is now also a




citizen of the wider legal and political community of Europe. This is notsimply a declaration of ultimate objectives or a meaningless reaffirmationthat France is found in Europe. It attracts notably the right of mobility intoand within the European Union, which is one of the primary characteristicsof citizenship in any state.88 This has had profound consequences for thelives of people in Europe. It has also had great importance for the denizensof Europe, those citizens of third countries who have acquired long-standingpermanent residence in Europe, so that they too can exercise their denizenrights within the community.89 Territory is not what it was.

The European developments must be situated, however, in a still broadercontext of cosmopolitan citizenship. There are general ‘liberalizingtrends’, with new entitlements to citizenship granted to second- and third-generation migrants and facilitated naturalization rules (with lower residencerequirements).90 This (p.202) general widening of the criteria for citizenshipnecessarily means more possibilities of overlapping citizenships, and perhapsthe most striking development of the law of citizenship over the last centuryhas been the slow overturning of the principle of a single and exclusivecitizenship. At the beginning of the twentieth century almost all Europeanstates allowed only one nationality and it was said polemically that one couldno more have two mother countries (‘patries’) than two mothers.91 In Europeall but five states now allow dual citizenship and Europe is symptomatic ofa world-wide phenomenon.92 The movement attracts general approbation,even Winston Churchill having supported it as a means to reduce conflict.93

The rise of dual or plural citizenship is significant in two respects. It is afurther indication of the thin and abstract nature of the concept, presentingthe advantage (however) of being more potentially inclusive than thickerand more historically rooted forms of belonging. It is more cosmopolitanthan ethnicity and may prove to be more cosmopolitan in potential thaneither religion or language, though this will depend in some measure onthe religion and the language. Plural citizenship is also significant for thecontribution it makes to the knowledge base of the citizenry. If each citizenof a state must learn to become a cosmopolitan citizen,94 this is facilitated bymultiple personal loyalties. The dual citizen becomes a source, moreover, ofcosmopolitan education for others.95

Notes:

(1) See Ch. 5.


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(2) See Spiro (2008), Citizenship, at 7 (citizenship ‘historically contingentinstitution’, a modern phenomenon ‘not inherent to social existence’).

(3) Bellamy (2004), ‘Making of Modern Citizenship’, at 3 (listing notablystructure of state, its political regime, tensions between centre andperiphery, available legal and political languages for expression of demandsof different groups) and 15 (many of differences antedate era of masspolitics and ‘even the nation-state’, reflecting church–state relations, arrivalof industrialization, growth of monarchies).

(4) Brubaker (1992), Citizenship and Nationhood, at 31.

(5) Joppke (2010), Citizenship and Immigration, at 17 (this ‘nothing newto the lawyer’ though contrasting with participatory views of sociologists,notably those of T. H. Marshall (1950) in his Citizenship and Social Class).

(6) Badie (2000), The Imported State, at 58 (citizenship ‘ambiguous ordebateable’ in the face of membership in tribe, clan, or extended family);and for citizenship as ‘monocontextual citizen concept’ (monokontexturalenBürgerbegriff’) opposed to ‘polycontextual tradition’ (polykontexturaleTradition), Di Fabio (1998), Das Recht offener Staaten, at 135.

(7) Aristotle (2008b), Politics, Bk. III, Ch. 1, s. 6 (person sharing inadministration of justice and holding of office).

(8) Joppke (2010), Citizenship and Immigration, at 7 (also allowing aliens tobecome associates); and for the ‘barbarians’, Jones (1977), Law of Greeks, at53.

(9) Sealey (1987), Athenian Republic, at 6; and for ‘millennia-long practice’ offorbidding many members of society from equal participation, Román (2010),Citizenship and its exclusions, at x (while seeming ‘to extol the virtues ofequality’), 8 (‘gradations’ of citizenship) and 11 (‘vast majority’ of literatureon subject ‘focusses on the more appealing, inclusive component of theconstruct’).

(10) Sealey (1987), Athenian Republic, at 9, 22, 23, 30; MacDowell (1978),Law in Classical Athens, at 67 (‘Athenian women’); Hunter and. Edmondson(2000), Law & Status in Classical Athens, at 66, note 45 and 14, note 6(‘[b]ecause women lacked direct political rights, scholars generally denythe title “citizen” to the female relatives of Athenian male citizens…TheAthenians disagreed…’ (with references)).


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(11) Kymlicka and Norman (1995), ‘Return of the Citizen’, at 284–5 (fordesirable activity (emphasis added), and notion of ‘thick’ and ‘thin’citizenship); Pocock (1995), ‘The Ideal of Citizenship’, at 29 (for activeand passive), though speaking at 29 of citizen as ‘member’ of polis and at34 of citizens as ‘persons acting on one another’. For citizenship as ‘fullparticipation’ in or ‘effective enjoyment’ of a society, Woehrling (1999),‘Droits et libertés’, at 271–2; and for the history of the idea, Magnette (2005),Citizenship, at 182 (for essential structure of citizenship found neverthelessin notions of exclusion and legality). Cf. Gardner (1997), Citizenship, at 9(‘active’ citizen does not exist in English law).

(12) Whittaker (2004), Rome and its Frontiers, at 206 (Constitutio Antoninianaof 212 only formal recognition of long process of diminishing concept ofcitizen); Román (2010), Citizenship and its exclusions, at 23 (though only to‘free peregrine’).

(13) Whittaker (2004), Rome and its Frontiers, at 207 (Roman Empire offourth century ‘reverse image’ of nation-state of nineteenth century, though‘sharper distinctions’ of class and wealth); Román (2010), Citizenship and itsexclusions, at 23 (for those lacking property, different classes).

(14) For citizenship becoming a ‘legal status’ under the Romans, compared tothe Greek ‘political term’, Pocock (1995), ‘Ideal of citizenship’, at 36.

(15) Bodin (1986), Six Livres, Bk. I, at 112 (‘holding from the sovereignty ofanother’).

(16) (1609) 7 Co. Rep. 1a, 77 ER 377.

(17) McPherson (2007), Reception of English Law Abroad, at 181 (‘nationality’as ‘status of being a subject of the king’, depending on birth in a placeunder king’s dominion); Smith (1997), Civic Ideals, at 41 (re-emphasizingolder feudal conceptions of status and obligation, rejecting sixteenth-century currents toward more territorially and ethnically defined sense ofnationality); Hulsebosch (2005), Constituting Empire, at 22–5 (emphasizingpersonal nature of allegiance, to person of crown as opposed to head ofpolitical unit, though created naturally on birth in crown territory); Spiro(2008), Citizenship, at 11 (‘subject, but not a citizen’ since no rights againstthe crown); Bellamy (2004), ‘Making of Modern Citizenship’, at 14 (on‘subjecthood’ short of full rights of citizenship).




















(18) Magnette (2005), Citizenship, at 62, 65 (rejecting organistic conceptionof society, contributing to notion of individual rights).

(19) For this view of Hobbes and citizenship, Magnette (2005), Citizenship, at75.

(20) Pufendorf (2005), Law of Nature and Nations, I.1.xx (‘all Acts peculiarto the Members of that City’); Magnette (2005), Citizenship, at 77 (thoughwomen and slaves not citizens).

(21) Picq (2005), Histoire et droit des États, at 270 (from simple statementof being ‘franc sujet’ to generalized decision making on conditions ofnationality).

(22) See Ch. 7, ‘The United States of America’ and ‘France and theworld’; and for US citizenship being created by necessary implicationwith the Declaration of Independence in 1776, Blackman (2010),‘Original Citizenship’, at 98, 112 (though no definition of its content).For contemporary challenge to this possibility, however, Lindahl (2011),‘Recognition as Domination’, notably at 208 (‘reciprocity as deliberationbetween citizens presupposes a closure that by definition cannot itself be theoutcome of reciprocal deliberation between citizens’).

(23) Weil (2008), How to Be French, at 11–12 (with shifting sixteenth-centurycase law); Wells (1995), Law and Citizenship Early Modern France, at 33 (andunderlying notion of choice), 36 (though various reliance on both ius soliand ius sanguinis), 103 (even ‘triumph’ of ius sanguinis in mid-seventeenthcentury).

(24) Sahlins (2004), Unnaturally French, at 1 (neither ethnicity, nor language,nor national identity capable of providing justification for membership), 5(status determined ‘tacitly, in a singularly unmarked fashion’ and principally‘by what they were capable of doing’).

(25) Sahlins (2004), Unnaturally French, at ix (both foreigners and‘naturalized foreigners’ standing opposed to ‘naturals’).

(26) Weil (2008), How to Be French, at 4, 13 (also for serfs, Protestants,slaves).

(27) Laborde (2004), ‘Republican Citizenship’, at 46 (for ensuing ‘tension’ indebate, ‘theoretical impasse’).


















(28) Batiffol and Lagarde (1981–3), Droit international privé, vol. I, at 86(eliminating ius soli ‘almost completely’); Weil (2008), How to Be French, at4, 21 (and nationality not lost on residence abroad).

(29) Batiffol and Lagarde (1981–3), Droit international privé, vol. I, at 87(increasing number of French citizens, notably from families founded inFrance by foreigners).

(30) Weil (2008), How to Be French, at 1 (notably on political divisions, iussoli defended by ‘left’, ius sanguinis by ‘right’); and see Laborde (2004),‘Republican Citizenship’, at 52 (even advocates of ius soli not accepting it assufficient, ‘socialization’ and residence also ‘mattered’).

(31) Smith (1997), Civic Ideals, at 115 (though mentioned as requirementfor federal office, in defining congressional power over naturalization,and in fixing jurisdiction of federal courts), 139, 153 (for ongoing politicalcontroversy on definition).

(32) Smith (1997), Civic Ideals, at 1–2 (‘a white nation, a Protestant nation…native born men with Anglo-Saxon ancestry’), 75 (yet an ‘asylum nation’);Smith (2009), ‘Beyond Sovereignty and Uniformity’, at 912 (throughnineteenth century no belief in identical bundle of rights for all citizens);Magnette (2005), Citizenship, at 86 (Locke, Spinoza also excluding womenand ‘servants’ from citizenship).

(33) See notably Dred Scott v. Sandford, 60 US 393 (1857); and for the USSupreme Court’s adoption of ‘differentiated levels of membership’ in theUSA, Román (2010), Citizenship and its exclusions, at 94–5 (until 1922);Spiro (2008), Citizenship, at 9 (controversy not centred on citizenship buton race). The Fourteenth Amendment provides in its first sentence that‘[a]ll persons born or naturalized in the United States, and subject to thejurisdiction thereof, are citizens of the United States and of the State whereinthey reside’.

(34) Notably that one of the parents must have some period of previousresidence (varied by legislation) in the USA: Spiro (2008), Citizenship, at 10(where US citizen ‘temporarily abroad’).

(35) Harris (2004), ‘Nationality, Rights and Virtue’, at 76 (listingnaturalization, private bills, children of British subjects born overseas, formerBritish subjects owning property in Britain but in USA).

















(36) McPherson (2007), Reception of English Law Abroad, at 182 (statuteDe Natis, making children born abroad of English mothers or fathers ableto inherit in England); Kim (2000), Aliens Medieval Law, Ch. 5 (for fifteenth-century English courts protecting those born ‘overseas’ from proprietarydisputes).

(37) See this chapter, ‘Citizenship and Mobility’.

(38) Preuss (2004), ‘Citizenship and German Nation’, at 31–2 (toleration ofthose with residence or business for ten years, ius soli birthright for childrenof stateless and homeless parents).

(39) See Ch. 1, ‘Readings of the State Tradition’; Joppke (2010), Citizenshipand Immigration, at 44 (ius sanguinis ‘epitome of modernity and progress’at dawn of nineteenth century); and see Schirmer (2004), ‘Closing theNation’, at 48 (‘closing’ of German nation in citizenship law of 1913 thatdid not accept ius soli); though for ongoing strength of identities of beingBavarian, Prussian, or Saxon even in 1913, Herbert (2001), Geschichte derAusländerpolitik, at 335 (German citizenship formulated only in reaction toimmigration).

(40) Weil (2008), How to Be French, at 173; Bellamy (2004), ‘Making ofModern Citizenship’, at 15 (notions of ius sanguinis and ius soli both requireadded nuance, former because of exceptions, latter because of need forintegration).

(41) Smith (1997), Civic Ideals, at 40 (that of ‘asserting a measure of commongovernance over otherwise distinct societies’).

(42) See Ch. 2, ‘Early Cosmopolitanism’ (for history of humanity as one ofmigration); and for the three large-scale migrations in the century from 1840to 1940 (to Americas, to south-east Asia, the Indian Ocean rims, the southPacific, and to northern Asia), Hoerder (2012), ‘Migration and Belongings’, at435.

(43) See generally, for the ‘highly selective’ process of migration, with useof ‘highly structured’ routes, and corresponding need to escape from theimagery of ‘mass invasion’, Sassen (1999), Guests and Aliens, at 2, (thoughacknowledging at 7 mass movements of expulsion in European context—Huguenots from France, Lutherans from Salzburg, shifts following warsbetween Ottoman, Austrian, and Russian empires).


















(44) Joppke (2010), Citizenship and Immigration, at 35.

(45) Blumenthal, (1988), The Investiture Controversy, at 120 (on investitureas product of existing dispute, Gregory’s prohibition of lay investiture evencoming after Henry’s deposing).

(45) The Economist, 13 November 2010 at 35 (Netherlands 10.9 per cent,Germany 12 per cent, Spain and Sweden each 13.8 per cent).

(46) Pison (2010), ‘The number and proportion of immigrants’ (representing3.1 per cent of world population, up from 2.9 per cent in 1990, 2.3 percent in 1956). OECD countries are far surpassed by Qatar at 86 per cent,the UAE at 70 per cent, and Kuwait at 69 per cent, given the extent offoreign construction labour. China’s foreign-born are only 0.1 per cent of thepopulation (circa 1 million people).

(47) The Economist, 12 November 2011 at 67 (in France from 10 per cent ofall marriages in 1996 to 16 per cent in 2009; in Germany from 11.3 per centin 1990 to 13.7 per cent in 2010; in Switzerland 45 per cent of marriages areinternational; in Asia percentages are smaller but increases are larger: inJapan in 1980 1 per cent of marriages international, by 2009, 5 per cent; inSouth Korea 3.5 per cent in 2000, 10 per cent in 2010).

(48) Archibugi, Benhabib, and Croce (2010), ‘Converging CosmopolitanProject’, in text of recorded conversation.

(49) Bayly (2004), Birth of Modern World, at 239 (France sought to exercisecontrol over ‘agitators’); Dauvergne (2004b), ‘Sovereignty, Migration’, at589 (system of sovereign nation-states existing for three centuries withoutcomprehensive migration regulation). For the particular history of thepassport, Torpey (2000), Invention of Passports, notably at 32 (for French1792 debate), 111–17 (for ‘temporary’ imposition of passport controlsduring the First World War, becoming permanent); Robertson (2010),Passport in America, notably at 251 (on new need for people to prove toofficial that ‘they were the document’). Visas are a further means of control,constituting written permission to enter inscribed within the passport itself.Visa-free entry is thus a gauge of openness of states. For the continuum,The Economist, 11 February 2006 at 98 (USA then allowing nationals of 130states visa-free entry, EU averaging 126, North Korea 18, Pakistan 17).

(50) Bosniak (2010), ‘Persons and Citizens’, at 10 (‘hard-outside-soft-inside’).













(51) Dauvergne (2008), Making People Illegal, notably at 9 (on the ‘Noone is illegal’ movement), 12–13 (inevitable absence of data on ‘illegal’immigration), 14 (‘vast amount of population movement outside legalframeworks’); Ngai (2004), Impossible Subjects, notably at 2 (on ‘illegal’immigrants working in every region of the USA, though best understoodas a ‘caste’ situated outside boundaries of formal membership and sociallegitimacy), 5 (illegal alien as ‘impossible subject’, the ‘person who cannotbe and a problem that cannot be solved’); Bosniak (2010), ‘Personsand Citizens’, at 18ff. (on emptying of ‘personhood’ through notions ofterritoriality, ‘the people’ and emergency powers). For ensuing ‘bordercultures’, e.g. between the USA and Mexico, Hicks (1991), Border writing,notably at xxiii (pollo as border crosser, mosca as US border helicopter,coyote as person bringing pollo).

(52) See Ch. 9, ‘Cosmopolitan Theory’. It is true that Kant did not advocatea right of permanent installation, but border controls now extend to allvisitors and there is no general right to entry. For a (legal) regime of ‘porousborders’ for immigrants, Benhabib (2004), Rights of Others, at 3 (alienagenot to exclude fundamental rights), 19 (‘irresolvable contradiction’ betweenmoral universalism and democratic closure); Carens (1995), ‘Case for OpenBorders’ (especially for freedom of movement from developing to moredeveloped world); though for ‘regulated openness’, Ghosh (2003b), ‘Towardsa New International Regime’, at 25 (‘politically achievable’); Miller (2003),‘Migration in Post-Cold War’, at 42 (international regime should not call intoquestion sovereign states, which must enforce policies).

(53) Dauvergne (2008), Making People Illegal, at 186 (‘no serious attempts’to regulate migration globally though domestic regulation demonstratesrepeated policy failure and lack of innovation).

(54) For complexity as a ‘discernible trend’ in last two decades, Joppke(2010), Citizenship and Immigration, at 70; and as result of a ‘blend’ ofliberal, democratic republican and inegalitarian ascriptive elements invarious combinations, Smith (1997), Civic Ideals, at 6 (a ‘multiple traditionsview of America’), 14 (‘bewildering range of categories’, citizenshipas ‘intellectually puzzling, legal confused…and contested status’). Forcitizenship becoming simple ‘instrument’ of ‘demographic policy’, Weil(2008), How to Be French, at 4 (since the Second World War).

(55) For UK abandonment in 1981 of automatic UK citizenship on birth inBritain, Harris (2004), ‘Nationality, Rights and Virtue’, at 80 (now dependenton birth to parent settled in UK); Juss (2007), ‘Slow Death of Citizenship



















Rights’, at 95 (1981 legislation removing ‘last remnants of territorialbirthright’). The ius soli is also contested in the USA, given the phenomenonof ‘anchor babies’, children born of illegal immigrants. For German grantingof birth citizenship to children of immigrants resident in Germany foreight years or longer, Spiro (2008), Citizenship, at 18; and for generalEuropean continental move to ius soli, given dangers of sizeable non-citizenpopulations, Joppke (2010), Citizenship and Immigration, at 31 (need for‘congruence between rulers and ruled’).

(56) For impossibility, Kochenov (2011b), ‘EU Citizenship, Naturalisations’, atE114; and for irreversibility, Herbert (2001), Geschichte der Ausländerpolitik,at 9 (public debate breaking out every four or five years, as though solvableproblem, this for more than a century; rather, question only of pragmatic andmiddle-term corrective measures), 341 (irreversibility).

(57) For ridicule of Dutch efforts to test ‘nation-specific’ culture, Kochenov(2011b), ‘EU Citizenship, Naturalisations’, notably at E112 (for single correctanswer to question what one should do on death of a neighbour, ‘hypocriticalbureaucratic exercise’).

(58) Joppke (2010), Citizenship and Immigration, at 33 (citizenship identity,as such, consisting only of ‘general rules and principles of liberal democracy,which are the same everywhere’).

(59) See generally Dauvergne (2004), ‘Sovereignty, Migration’, notablyat 605 (for Australian High Court case law), 614 (no longer exclusiveexecutive control), and most recently Plaintiff M70/2011 v. MIC [2011]HCA 32 (Australia High Court striking down ministerial process of placingasylum claimants in third countries as not providing effective proceduresfor asylum determination); Sassen (1999), Guests and Aliens, for Europeanstates’ necessary acceptance of human rights rulings in matters of migration,notably at xx (‘and the world did not come to an end’); and for earlierCanadian, US, UK, German, and French decisional law, Glenn (1992),Strangers at the Gate, notably at 65ff. (executive or quasi-judicial primaryadjudication, review by administrative tribunals or courts of generaljurisdiction).

(60) Sassen (1999), Guests and Aliens, at xiii (millions displaced after each ofWorld Wars, whole states eliminated, victors refusing citizens of eliminatedstates), 35 (no German word for refugee until after the Second World War),87 (refugee crisis emerged as such only after closure of USA and Canada tomuch immigration in 1920s).














(61) Notably the 1951 UN Convention Relating to the Status of Refugees, 189UNTS 137; as to which Hathaway (2005), Rights of Refugees.

(62) As to which Kneebone (2009), Refugees, Asylum Seekers, at 27 (notionof ‘safe third country’ dating from 1990 Dublin Convention, said to benecessary to prevent European asylum system from collapsing); and seeMorris (2010), Asylum, Welfare and Cosmopolitan Ideal, at 19 (‘how states goabout managing the tensions involved in honouring obligations in principlebut limiting access in practice’).

(63) Agamben (2000), Means without End, at 16 (‘unhinges the old trinity ofstate-nation-territory’).

(64) Gammeltoft-Hansen (2011), Access to Asylum, at 169 (for effect onmigrants and eventual state responsibility).

(65) Dauvergne (2008), Making People Illegal, at 139 (showing that ‘thefiction of formal legal citizenship does not hold fast’).

(66) See notably Sen (2007), Identity and Violence, at xii, xv, 10; and seeUN Development Program (2004), Human Development Report 2004,at 2 (individuals have multiple identities, ‘no inevitable need to choosebetween state unity and recognition of cultural differences’); Bosniak (2000),‘Citizenship Denationalized’, at 505 (privileging by ‘liberal nationalists’ ofnational identities ‘deeply problematical’, may also ‘simply be unrealistic’);Maskens (2005), ‘Résilience des ideologies’, at 17 (on ‘idéologies mono-identitaires’); Sørensen (2004), Transformation of the State, at 90 (identitymore a ‘project for the individual’); Likhovski (2006), Law and Identity, at4 (modern era saw rise of ‘obsessive desire’ for homogeneous sense ofidentity); Kymlicka and Norman (2000b), ‘Citizenship in Culturally DiverseSocieties’, at 1 (‘ethnocultural identities’ matter to citizens, will endure overtime, ‘must be recognized and accommodated’).

(67) Badie (2000), The Imported State, at 68 (for ‘indistinct’ idea of Hindunationalism, territorial delimitation ‘porous and mutable’); Sørensen(2004), Transformation of the State, at 98 (ethnic, religious, tribal identities‘dominate’ national identity in ‘weak states’); and for nomad, notably Arab,resistance, see Ch. 6, ‘Common Laws beyond Europe’.

(68) See for defence of citizenship and notions of national identity, Miller(2000), Citizenship and National Identity, contrasting at 3 ‘republicancitizenship’ of active involvement with ‘liberal’ and ‘libertarian’ views,





















former ‘better able to respond to cultural diversity’ by virtue of its abilityto draw many into public debate, and find compromise); and for national‘accomodationist’ structures, Peleg (2007), Democratizing Hegemonic State,at 3 for options (local autonomy, consociationalism, power-sharing regimes,etc.).

(69) Against the dichotomy, Bosniak (2006), Citizen and Alien, at 7 (incapableof contending with complex interpenetration of institutions and practicesacross borders, disables theorists from seeing that ‘global’ also withinnational borders); and for historical variation within contemporary states,Thelen (2000), ‘National and Transnational Citizenship?’, at 551 (‘differentthings to different groups at different times’ and ‘different things at the sametime in different places’, US examples).

(70) Baker (2002), English Legal History, at 467 (‘aliens…were treated in theearly common law as having virtually no enforceable rights at all’, thoughrecognizing relaxations, notably in matters of contract and in courts otherthan those of the common law); and for the historical French position ofdenial of civil rights, notably in matters of succession, though admission ofrights of ius gentium, e.g. to contract, Pillet (1923), Traité pratique, at 314–15 (distinguishing inter vivos transactions from matters of succession, notingmaxim that ‘foreigners live free but die as slaves’).

(71) For the laborious process in France, with full civil status accorded by the1804 Civil Code only on condition of reciprocity, Batiffol and Lagarde (1981–3), Droit international privé, vol. I, at 190. Alien acquisition of land remainsthe object of many restrictions in contemporary states.

(72) See Ch. 13, ‘Private international law’.

(73) Bosniak (2010), ‘Persons and Citizens’ at 11 (citing the Canadian Charterof Rights and Freedoms and its guarantees of the fundamental freedoms of‘everyone’).

(74) Tribe (1988), American Constitutional Law, at 1544 (‘compellingjustification’). The guarantees of due process and equal protection under theFourteenth Amendment to the US Constitution are extended to ‘persons’ asopposed to ‘citizens’.

(75) For the prohibition, Art. 18 TFEU; on indirect discrimination, Commissionv. Italian Republic, Case C388/01 ECRI–721 (prohibiting reduced rate for localmuseums to be granted to local nationals and residents); see Davies (2005),















‘Residence is the New Nationality’, notably at 55 (criticizing judgment as‘threat to solidarity on anything less than a European scale’).

(76) Jacobson (1996), Rights Across Borders (for decline in both westernEurope and the USA); for decline in Europe, Saladin (1995), Wozu nochStaaten?, at 26 (populations becoming ‘exchangeable’); Joppke (2010),Citizenship and Immigration, at 73 (‘overall diminished status of socialcitizenship’); Schuck (2000), ‘Citizenship in Federal Systems’, at 196(citizenship may now be ‘anachronistic’); and in specific matters of healthcare (‘health tourists’), Harrington (2009), ‘Migration and access to healthcare’, notably at 316 (for ‘national scale’ no longer wholly predominant);and even in commercial aviation (citizenship historically defining airlineownership), Havel and Sanchez (2011), ‘Restoring Global Aviation’s“Cosmopolitan Mentality”’, notably at 3, 27 (for new ‘cosmopolitan mentality’of ‘open aviation area’ with access by foreign carriers). For citizenshipnever having a primary role in distribution of state benefits in common lawjurisdictions, however, given the historic primacy of notions of domicile andresidence: Glenn and Desbiens (2003), ‘L’appartenance au Québec’, notablyat 124–5, and pace arguments of Marshall (1950), Citizenship and SocialClass. Citizenship would also be declining as a ‘connecting factor’ in privateinternational law, in favour notably of a more modern concept of habitualresidence; see Scoles et al (2000), Conflict of Laws, at 238, and for theimmense literature on the subject, Kegel and Schurig (2000), InternationalesPrivatrecht, at 386.

(77) For ‘ambivalence’, Bosniak (2006), Citizen and Alien, at 37–8 (ascendingscale of rights for aliens as identity with society increases), 49 (aliens fulldue process in criminal proceedings yet possibly denied Medicaid benefits);Smith (2009), ‘Beyond Sovereignty and Uniformity’, at 907 (citizenship inUSA never ‘a uniform status’).

(78) Spiro (2008), Citizenship, at 89; and on the 1996 measures, Ngai (2004),Impossible Subjects: Illegal Aliens, at 268–9 (for US Supreme Court review oftreatment of aliens); Bohman (2009), ‘Cosmopolitan Republicanism and Ruleof Law’, notably at 72 (for rights enjoyed by citizens and aliens alike, ‘callthis the cosmopolitan constitution’).

(79) Rodriguez (2010), ‘Noncitizen voting’, at 31 (in ‘dozens of democraciesaround the world’, for ‘permanent residents’), 34 (four countries evengranting universal suffrage to non-citizens at national level—Chile, Malawi,New Zealand, and Uruguay), 36–8 (though resistance in USA, notablythrough state control of voting rights).




















(80) Glenn and Desbiens (2003), ‘L’appartenance au Québec’, at 130 (notingalso importance of conditions of acquisition); Sassen (1999), Guests andAliens, at 118 (though increases in Germany and the Netherlands after 1990citizenship reforms); Joppke (2010), Citizenship and Immigration, at 41 (0.43per cent in Luxemburg to 7.66 per cent in Sweden).

(81) Spiro (2008), Citizenship, at 57 (though spikes after 1990s reforms andafter terrorist attack in 2001); Joppke (2010), Citizenship and Immigration, at39 (USA and Canada c. 80 per cent in 1950, USA now at 40 per cent thoughCanada at 75 per cent since more ‘proactive’ in matters of naturalization).

(82) Spiro (2008), Citizenship, at 57 (right to vote not exploited by many,estate tax benefits only affecting wealthy couples); Schuck (1989),‘Membership’, at 58 (‘marginal benefits’ slight).

(83) For ‘transnational’, ‘global’, ‘world’, ‘postnational’, ‘cosmopolitan’,Bosniak (2006), Citizen and Alien, at 24 (citizenship ‘increasinglydenationalized’ though ‘in the sense of formal legal status remains closelybound to nation-state membership’); for ‘multi-cultural’, Habermas (2000),Après l’Etat-Nation, at 66 (based on a ‘policy of recognition’ of collectiveidentities); for ‘differential’, Kymlicka (1989), Liberalism, Community andCulture, at 151 (‘continuum of possibilities’, advantaging aboriginal peoples);for ‘plural’, Ibarra Palafox (2011), ‘Constitutionalism and Citizenship’, at 67(‘building a plural citizenship has become a crucial project for the twenty-first century’). For criticism, Kymlicka (2003), ‘New Forms of Citizenship’, at287, 293 (only real alternative to national citizenship that of internationalparliaments, nothing in international human rights that challenges liberal/national model of citizenship); Joppke (2010), Citizenship and Immigration,at 73 (‘post-national’ blurring meaning of citizenship); Smith (2009), ‘BeyondSovereignty and Uniformity’, at 936 (no ‘universalistic’ citizenship possible inworld of differentiated communities and identities).

(84) For participation in social movements, Bosniak (2006), Citizen and Alien,at 26 (labour rights activists, environmentalists, feminists, human rightsworkers); and for the cosmopolitan theory of transnational obligations, seeCh. 9, ‘Cosmopolitan Theory’.

(85) Walker (2009), ‘Denizenship and Deterritorialization’, notably at 261(for foreigner in common law acquiring some of privileges of English subject,through royal prerogative, paralleling idea of metic of Greek city state), 262(as ‘in-between concept’); and see Dauvergne (2008), Making People Illegal,






















at 121 (not citizen but not ‘other’); and for ‘alien citizenship’, Bosniak (2006),Citizen and Alien, at 81.

(86) See Preface, note 3.

(87) European citizenship was created by the Treaty of Maastricht in 1992;see Joppke (2010), Citizenship and Immigration, at 164 (‘postnationalcitizenship in its most elaborate form’, European Court of Justicetransforming from derivative status into ‘a free-standing source of rights’);Kostakopoulou (2007), ‘European Union Citizenship’, passim for its inclusive,multi-layered, and multi-cultural character and, at 624, as ‘concretecitizenship beyond the Nation State’, 630, as instilling a ‘cosmopolitanconsciousness within national citizenship’ such that, at 632, the ‘nation’ andcosmopolitanism appear to be ‘mutually reinforcing’). See also, for potentialinclusiveness, Topidi (2010), EU Law, Minorities, notably at 115 (‘ethnicminorities and EU citizenship: in search of cosmopolitan citizenship’, oneliminating distinction between ‘belongers’ and ‘non-belongers’). The USAalso combines state citizenship with national citizenship, but the former isconstituted by simple residence and not by ascriptive grant; also, nationalcitizenship not dependent on state citizenship: Rosenfeld (2010), Identityof Constitutional Subject, at 237; though for even the federal experienceas implying rejection of the exclusive, nation-state concept of citizenship,Di Fabio (1998), Das Recht offener Staaten, at 135 (ongoing idea of beingcitizen of city, province, state, etc.).

(88) For the strictly interpreted character of limits on the right of mobility andthe need for any such limits to meet a test of proportionality, Kostakopoulou(2007), ‘European Union Citizenship’, at 639; and for the right of Europeancitizens to receive services, including health services, in another EU country,Luisi and Carbone v. Ministero del Tesoro, Cases 286/82 and 26/83, [1984]ECR 377 (ECJ); and generally Harrington (2009), ‘Migration and accessto health care’, at 326. Access to the benefits of EU law would now beattaching to EU citizens as such, in the absence of any cross-border activityor movement: Kochenov (2011a), ‘A Real European Citizenship’, at 55 (on‘intensity of interference’ with rights of EU citizens, and not borders, thattriggers application of EU law).

(89) Walker (2009), ‘Denizenship and Deterritorialization’, at 265 (net impactof changes in standing of denizens in Europe even greater than changesaffecting second-country European citizens); Guiraudon (1998), ‘CitizenshipRights for Non-Citizens’, at 272 (for a continuum of rights attached to















membership rather than a ‘sharp distinction between citizen and non-citizen’).

(90) Joppke (2008), ‘Comparative Citizenship’, at 4, though noting also at6 and 34 more restrictive developments (tests on language, civics, etc.),though latter as limits on increasingly liberal regimes; Dauvergne (2004a),‘Making People Illegal’, at 95 (denationalization also rarer).

(91) De Groot and Schneider (2006), ‘Zuhehmende Akzeptanz von Fällenmehrfacher Staatsangehörigkeit’, at 65 (citing André Weiss in 1907) and 66(for legislative technique of loss of first nationality if second acquired); andfor Franklin Roosevelt’s view of dual nationality as ‘a self-evident absurdity’,Spiro (2008), Citizenship, at 61.

(92) For Europe, Joppke (2008), ‘Comparative Citizenship’, at 5; and for morethan fifty states now permitting dual citizenship explicitly or recognizing tosome extent, Faist and Gerdes (2008), ‘Dual Citizenship in Age of Mobility’,App. B; US Office of Personnel Management (2001), Citizenship Laws ofthe World, for country-specific listing; and see generally Hansen and Weil(2002), Dual Nationality; Martin and Hailbronner (2003), Rights and Duties ofDual Nationals; Barry (2006), ‘Home and Away’, at 34 (for emigration states‘reconfiguring citizenship’ to increase economic benefits from migrants),42 (‘around half’ of countries of world recognizing ‘plural citizenship’);Spiro (2008), Citizenship, at 6 (‘completely tolerated’ under present USpractice), 59 (encouraged by states of emigration), 67 (a ‘core incident ofglobalization’); Dauvergne (2008), Making People Illegal, at 119, 135 (newIndian ‘overseas citizenship’).

(93) De Groot and Schneider (2006), ‘Zuhehmende Akzeptanz von Fällenmehrfacher Staatsangehörigkeit’, at 69; Spiro (2010), ‘Dual Citizenship asHuman Right’ at 111 (facilitates naturalization and advances integration);Morris (1998), Essay on Modern State, at 261 (since states less authoritythan claimed, case for exclusive membership weakened); Green (1988),Authority of the State, at 218; Di Fabio (1998), Das Recht offener Staaten,at 134 (unity-giving idea of Volk as pre-law category no longer plausible,multiple citizenship having dissolving effect on it); Benhabib (2002), Claimsof Culture, at 180–1 (decline of Weberian idea of unity, need to come to gripswith ‘the end of unitary citizenship’).

(94) Holden (2000), Global Democracy, at 29 (a person ‘capable of mediatingbetween national traditions’).























(95) On the importance of cosmopolitan education, Nussbaum (1994),‘Patriotism and Cosmopolitanism’, at s. III.1 (comparing ‘unexamined feelingthat one’s own current preferences and ways are neutral and natural’,reinforced by teaching of moral salience of national boundaries), 7 (need for‘talking’, respecting ‘traditions and commitments’).



DOI: 10.1093/acprof:oso/9780199682423.001.0001 Published to … · Page 3 of 26 Cosmopolitan...

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