Kochenov: Citizenship vs. Personhood

Citizenship is an abstract proclamation in law that someone has a status of belonging to an authority, based on the authority’s decision, irrespective of the personal traits of the citizen. Personhood, in contrast, is less legally fictitious: it is about looking, precisely, at the kind of human being in front of us, whatever the authorities have or have not abstractly proclaimed. The cleavage is best illustrated by the absurd practice of naturalizations and is getting more and more contested in contemporary constitutional law.

Naturalizations are increasingly dependent on the elaborate rites de passage in the form of culture and values tests, which settled foreigners are required to pass to acquire the formal status of citizenship. The assumption behind such tests is as problematic as it is commonplace: the culture from across the border is a barbarian non-equivalent of our own. Putting this assumption into practice is even more difficult, however, than embracing it rationally, as the core value of any liberal democracy today is tolerance. In this sense, testing the specificity of the highly unique Danish culture and of the even more unique Swiss one amounts, in fact, to testing one and the same thing. What such tests supposedly are testing, then, is whether someone is ready to concede that they are a second-rate human being since  they are used to having their croissant plain, as opposed to with cream, in the morning.

Making a citizen is an ideology-inspired legal exercise, implying a choice among the available bodies who could be useful for the achievement of the goals of the authority at any given time. Those bodies that are less useful are simply excluded and do not exist in the eyes of the law. Exclusions can run along any lines: geography of origin, race, religion, education, language, time. The citizenship’s capacity to exclude is its core function, which means that, in the ‘golden days’ of citizenship — the mythical days of the concept’s unquestioned authority — the exclusion at the level of the legal status could only rarely be questioned: equality is among citizens, remember?

As a consequence, working with citizens the authority enjoys an almost universal carte blanche: you create ethnic electorates, you assign the status of those who are not white enough to your liking to the ‘ancestral homelands’ as apartheid South Africa did, and/or you declare those you send away as ideologically or racially deficient as non-citizens. The long history of flagrant discriminations is rich and diverse. Under the citizenship paradigm, the core question, before looking at rights, entitlements, duties, and equality claims, is, Who is a citizen in this society? Those who are not citizens are entitled to nothing and this is legally and politically right, even if frequently also morally unjust.

Not the same at all with persons: recognizing the person as a figure of importance for the purposes of constitutional law, however humble this relative innovation can seem, in fact revolutionizes the legal understanding of our society since it opens up for criticism and legal contestation the status assignment decisions that cannot, in the majority of cases, be contested under the citizenship paradigm. It also flips the sequence of the status-rights interactions. The core question here is why this person is not entitled to a particular right. A simple “she is not a citizen” answer will no longer suffice under the personhood paradigm: a substantive analysis will clearly be required. It goes without saying that the distinction between the ‘status’ and ‘rights’ taken by lawyers for granted is profoundly artificial and is not on all occasions justifiable.

The two logics — citizenship and personhood — find themselves in a stark opposition to each other. The cleavage runs between taking either legal or social facts as a starting point, thus providing a choice between parallel realities and their respective truths. This is the legal recognition of social facts in the growing array of contexts that pushes personhood as such, not necessarily connected to the formal status of citizenship, to prominence, with the far-reaching implications for the relevance of the classical normative picture of citizenship which we know from political theory textbooks.

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