Kochenov: The Arbitrariness of Citizenship
Citizenship is the chalk line between the ‘outs’ and the ‘ins’. Having asked about one’s citizenship, we are usually clear about whether that person counts in full in the eyes of our law. It is thus unavoidable and fundamental that citizenship, above all, is a legal status. The necessarily arbitrary nature of how the line between citizens and non-citizens is drawn in any society has not escaped the attention of commentators.
Citizenship, as a legal status of attachment to public authority,1 is always distributed uniquely by the authority itself. It does not depend on sentiments or feeling of the citizenry, of course. As a Dutchman who has spent a lot of time in the US, I can perceive myself as an ideal American; however, this fact has no bearing on the legal status I hold.
Remove the formal requirement of equality before the law and it would be difficult, to say the least, to characterize the resulting legal arrangement as a citizenship arrangement. Citizenship premised on, precisely, the creation of a legal abstraction from actual people with all the differences that being a person implies will fail to emerge if any other differences between the citizens, beyond the formal legal status they hold, becomes an indispensable precondition informing their duties and entitlements.
That the legal fiction so necessary for the survival of any modern constitutional system is essentially arbitrary in nature is exceedingly difficult to ignore in a world in which the whole ethos of the law is about asking for good reasons behind this or that element of the legal reality proclaimed by the powers that be. Indeed, constant questioning of authority’s mantras is what reinforces modern democracy and, at the level of the law, makes the Rule of Law possible.
Consequently, and most logically too, as we look back, the key trend in citizenship evolution over the past decades has been to underplay citizenship’s former glory by reaching beyond the arbitrariness of the legal fiction lying at its base. This process had two key facets, which were profoundly interrelated.
It consisted, firstly, of the extension of the rights formerly reserved for citizens only to those who would not have had the formal legal status and ensured that all those in possession of the formal legal status could in fact enjoy citizenship rights, even women, minorities, and naturalized citizens. As a consequence, the boundary line between citizenship rights and human rights came to be rethought under pressure, inter alia, from the rise of human rights ideology and the evolution of the basic relationship between the authority and the population under its control, citizens and non-citizens included.
Secondly, we can witness a gradual extension of the status — either de jure or de facto — to groups of those who had been randomly excluded previously. Such extension happened in the courts of law and via legislative developments. Most importantly, the revision of nationality laws to make these more inclusive and tolerant of multiple nationalities has facilitated a move away from the previous paradigm of exclusive allegiances.
The consequence of this quest against arbitrariness leaping into the territory of citizenship, which is, in itself, an arch-example of arbitrariness in action, is the unavoidable thinning of citizenship as a legal status associated with an entitlement to rights as well as the radical decrease in citizenship duties.
1 The formal level of the authority does not matter, usually: R Bauböck, ‘Global Justice, Freedom of Movement and Democratic Citizenship’ (2009) 51 Archives européennes de sociologie 1
The full paper on ‘The Citizenship of Personal Circumstances in Europe’, EUI Department of Law Research Paper No. 2017/07, is available at cadmus.eui.eu/bitstream/handle/1814/46005/ LAW_ 2017_07.pdf?sequence=1