Supranational citizenship 9781847794413

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uropeinchange

Supranational citizenship ✭ LYNN DOBSON

supranational citizenship

EUROPE IN CHANGE

SERIES EDITORS: THOMAS CHRISTIANSEN AND EMIL KIRCHNER

LYNN DOBSON

supranational citizenship

MANCHESTER UNIVERSITY PRESS

Manchester

Copyright © Lynn Dobson 2006 The right of Lynn Dobson to be identified as the author of this work has been asserted by her in accordance with the Copyright, Designs and Patents Act 1988. Published by Manchester University Press Altrincham Street, Manchester M1 7JA, UK www.manchesteruniversitypress.co.uk

British Library Cataloguing-in-Publication Data is available Library of Congress Cataloging-in-Publication Data is available ISBN 978 0 7190 6953 6 paperback First published by Manchester University Press in hardback 2006

The publisher has no responsibility for the persistence or accuracy of URLs for any external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Contents

Acknowledgements Introduction

page vii 1

Part I 1

Citizenship I: membership, privilege, and place

19

2

Citizenship II: status, identity, and role

35

3

Citizenship of the European Union

49

Part II 4

Gewirth: action and agency

71

5

Political agency

85

6

Nexus, framework: constituting authority

97

7

Agency, authorisation, and representation in the EU

111

Part III 8

Gewirth: community, rights, values

127

9

Mutual recognition in the supranational polity

137

10 The good supranational constitution

153

Conclusion

170

References

173

Index

191

This work is dedicated to my daughter, Claudia

Acknowledgements

So many people have contributed to Supranational Citizenship in one way or another it seems impossible to record my appreciation of each one personally – so I hope the generosity of those I have cause to thank will extend to accepting gratitude expressed to them collectively (though not the less sincerely). Two people have read and commented on the work so extensively that I really must make exceptions in their cases: Albert Weale supervised the doctoral research from which this book emerged, and Russell Keat offered advice as I prepared it for publication. Finally, the friendship of Andre Barros was crucial to the work during a particularly difficult time, and I thank her too.

Introduction Supraabove, beyond, in addition (to) (Oxford English Dictionary)

Within recent memory the prospect of EU citizenship would have struck most observers as wildly speculative, and the idea of it unintelligible. The very concept of modern citizenship was so inextricably linked with that of the nation-state as to appear meaningless when decoupled from it. That nation states were the only possible repositories of citizens’ political attention, activity, and allegiance seemed self-evident. Ideas of global or supranational citizenship were, consequently, vacuous – at best, rhetorical. Besides, an intergovernmental trade regime like the EEC was not the kind of arrangement of which citizenship might ever be an appropriate status. In 1974 Raymond Aron, speculating on the possibility of citizenship in the European Community, asked the question ‘Is multinational citizenship possible?’ and answered with a resounding no: ‘There are no such animals as “European citizens”. There are only French, German, or Italian citizens.’1 He was proved wrong in the space of two decades. In 1992 the Maastricht Treaty concluded by the European Union’s then twelve member states formally established, for their nationals, the automatic status of citizen of the EU, and invested the status with a limited number of political and civil rights.2 Though filtered through member state nationality, the relationship with the EU’s political institutions for those who pass through the filter is formally direct. Since Aron wrote, it has become clear that people’s lives are increasingly being affected by events and decisions in arenas of activity larger than the nationstate.3 As Waldron has observed, we have come to depend upon political, economic, and social structures going far beyond the communities of our original or primary affiliation4 and are no longer self-sufficient individually or collectively but instead indebted, not just to our locales, regions, and nation-states, but also to the larger contexts that, in turn, sustain them.5 As systems of governance beyond the nation-state extend the scale and scope of their decision-making capacities, they have more pervasive and far-reaching effects on the circumstances within which individual lives are lived. However, the democratisation of these arenas has not

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kept pace with their expanding functions and responsibilities, and concerns have arisen in recent years about their political legitimacy. Moreover, at these levels of political organisation there may be an inherent tension between system effectiveness and citizen participation, posing an unavoidable dilemma for citizens, political elites, and theorists alike.6 The relationship of persons to these rule-making structures therefore poses a number of provocative questions.7 Whether such frameworks ought to be more democratic, what democracy might mean in relation to them, and whether they could be democratised, are all formidable problems, and controversial too. Nevertheless, it appears perverse to continue to assume that the mix of executive latitude and permissive acquiescence of subject populations that has been characteristic of intergovernmental associations will continue to suffice. These problems are most strikingly manifest in the European Union, the world’s most advanced project of regional integration8 and transnational rulemaking. As the depth, scope, and reach of activities and rule-making taking place at, or mediated through, the EU level of organisation, continue to grow, questions of its democratic authority, of the kind conventionally asked of states rather than of intergovernmental associations, have begun to be explored.9 The EU’s reach into domestic political contexts is considered by most informed observers10 to be wide-ranging and pervasive and, as their larger environment, the EU has provoked and conditioned adaptive processes within member states.11 An examination of twenty-eight policy issue arenas in which all decisions were taken at national level in 1950 found that, in the year 2000, in none of them were decisions taken solely at national level; in fewer than a quarter were decisions clearly made mostly at national level, while in over a quarter decisions were clearly made mostly or wholly at EU level.12 EU level decision-making now takes place in policy domains considered the last redoubt in modern notions of state sovereignty – defence, borders, money supply, citizenship itself. Since 2000, member states (except the UK, Sweden and Denmark) have integrated their economic and monetary policies and adopted a common currency. The EU has begun to develop a common foreign and security policy incorporating common defence capabilities,13 as well as a common internal security policy which includes a body (Europol) for shared intelligence-gathering and coordination, and a European arrest warrant.14 Deepening integration has resulted not only from the activities of the political organs of the Union but also from the decisions of the European Court of Justice, which has ‘managed to transform the Treaty of Rome … into a constitution [and] thereby laid the legal foundation for an integrated European economy and polity’.15 A number of legal doctrines have recast the relationship between individuals and EU institutions in normative terms. The legal doctrine of direct effect (decided by a case16 described as ‘a defining moment … comparable to Marbury v Madison in the constitutional history of the United States’)17 means that EU law affects individuals directly: national legislation is not required to give it effect. EU law is therefore distinct from international law, and individuals are primary subjects of the EU’s legal order. The doctrine of supremacy means that EU legislation takes primacy over the domestic laws of member states.18 The

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doctrine of pre-emption through which ‘national competence to make policy in a wide range of functional areas has been entirely pre-empted by supranational competence’19 means that member states may not act in those policy areas even where the EU has not yet done so. The doctrine of state financial liability imposes on states financial liabilities in respect of persons who have suffered economic damage as a result of the state’s ‘manifest and serious failure’ to implement its obligations under the Treaty.20 Though composed of formally autonomous states, operationally the EU is largely federal.21 In many respects the EU institutions now stand to individuals in a relation similar, if not equivalent, to that of their domestic states. One commentator argues that integration has proceeded so far that the EU now faces ‘dilemmas’: in how it conceives the relation between markets and democratic political structures, in its external relations, and in its social policy.22 These issues were addressed by the Constitutional Treaty,23 prepared by a seventeen-month Convention under the leadership of Giscard d’Estaing, a former President of France, and signed by member states in October 2004, but rejected in referendums by the voters of France and the Netherlands in May 2005.24 That Treaty was but the latest in a (leisurely) constitutional moment documented by the Charter of Fundamental Rights of the European Union (adopted December 2000, and incorporated into the Constitutional Treaty as the equivalent of a constitutional Bill of Rights),25 agenda-setting speeches by leading politicians,26 the Commission’s White Paper on Governance, and the growing academic interest in and literature on constitutionalisation, democratic principle and process in the EU, and potentials for citizenship. Despite its recent setback, the Constitutional Treaty will be with us for a long time to come, in spirit if not in text. The problems it attempted to resolve (not least how to make a Union of more than twenty-five members, with institutions originally designed for six, work) have not gone away. The explicit constitutionalising of the Union is seen by its supporters and detractors alike as delivering a qualitatively different kind of Union altogether – a Union taking on some of the resonances of a single political community. Constitutional change lays bare underlying controversies of political order, bringing to the fore large and complex questions about justice, order, stability, cohesion, and the balances to be struck between them. The solutions arrived at allocate and redistribute powers and capacities, competences, and values, and in the EU will mould and inform its social, political, and moral order. An eventual EU Constitution will shape, then, the relations between persons, and also the relations holding between persons and their common political institutions. The populations of the EU’s member states are truly ‘participants in a vast and far-ranging political, economic, and cultural experiment’.27

Citizenship and democratic authority Citizenship is the nexus of interpersonal relations on the one hand and individual– institutional relations on the other. It is the essence of democratic authority in

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modern polities claiming to be liberal democracies (as used here, a category including social democracies). Where citizenship is absent or ineffectual, persons are subjects, not citizens: the objects of political power, not the sources of political authority. If modern liberal democracy is the aspiration or benchmark, the quality of its citizenship is a good test of the authority of a political unit. As we will see in Chapter 3, the initiative and consensus to create a formal EU citizenship was developed explicitly in the context of a general agreement among member states that the EU lacked democratic legitimacy, and as a response to that lack.28 An effective citizenship is crucial to the normative standing of its institutions and their activities. The same holds, in a more qualified way, with respect to many other international frameworks of political authority. They are not directly addressed in this work. However, the theoretical argument it will advance is, in principle, applicable to systems of governance other than the EU. I present a theoretical account of citizenship and its relation to political authority that is independent of organisational forms, ‘national’ or ‘international’, and discuss the EU as a specific institutional framework in the light of that account.

EU citizenship: the nature of the problem The formal establishment of EU citizenship is a historical accident. Regardless of that, its development in the context of major institutional and constitutional change and under circumstances of significant normative uncertainty highlights issues of democratic authority and moral justification. Conceptions of political order bring one face to face with issues of political identity, political affect and political capacity, and notions of citizenship draw on and condense larger understandings of justice and sociality. As Kymlicka and Norman remark, ‘the concept of citizenship seems to integrate the demands of justice and community membership’.29 The concept of citizenship as traditionally understood assumes a single, national, order of justice and community membership. For a supranational, culturally and institutionally disaggregated order, however, we lack ‘an image of an ideal citizenship against which achievement can be measured and towards which aspiration can be directed’, in Marshall’s words.30 One gloss on EU citizenship goes like this: despite extensions of competences and the federal nature of the EU’s operations, it is still a confederal association. Loyalties and attachments remain, therefore, where they have always been – with the component units. All that is required for the continued working of a superstructure of just and stable institutions is an instrumental, reciprocating relationship between those component parts. Clearly, the limits of the Monnet method of integration have been reached,31 but on the other hand, there is ‘no demos’.32 Instead the EU has multiple nation-state demoi, and they can arrive at a working agreement by way of inter-elite accommodation. This is the view we might expect to be held by, for example, consociationalists and liberalintergovernmentalists.33 Against this are a number of reasons for thinking the hope of addressing

INTRODUCTION

5

current issues of EU integration without an overall normative theory, including supranational citizenship, to be futile. A position such as that adumbrated above overestimates both national homogeneity and international heterogeneity, failing to recognise that identities, interests, and value commitments are cross-cutting not only within state boundaries but across them too. It may also essentialise national identities, consequently supposing them eternal; and fail to see the extent to which they are complex and situational, and in constant development and adaptation. Also, experience shows that the interest-maximising postulated by intergovernmentalists and consociationalists cannot substitute for affect. Mere toleration and reciprocity are simply not enough of a social bond to keep parties hanging together when the going gets rough, as it inevitably does get from time to time in any relationship of long or indefinite duration. As Wayne Norman argues, federalist political arrangements and citizenship that are no more than a political marriage of convenience built around a common instrumentality of interests are unsustainable in the long run. Instead some shared moral commitment is needed, as counterweight to the inevitable temptations to defect in response to shorterterm pressures parties will face.34 The difficulties between anglophone and Québécois Canada are instructive here. Both parties found it possible to forge instrumental compromises, but their very instrumentality meant the compacts did not succeed in accommodating francophones on terms able to ‘engage their hearts and respect their dignity’.35 And, as theorists have cogently argued, the workings of international associations even beyond regional conglomerations such as the EU increasingly require an independent normative grounding, including some (albeit thin) conception of a global political identity.36 The vision of citizenship needed in the EU, I will argue, is one focused on the formative possibilities of political rights, and the potentials for persons’ political agency in the EU’s specific social and institutional context of ‘not only multiple layers of community affiliation but also increasingly dispersed and differentiated modes of governance’.37 Citizenship of the EU is supplementary to and conditional upon member state nationality and, therefore, member state citizenship. How multiple citizenships at different levels might fit together is one half of the central problem of EU citizenship. The other half is how citizenship at EU level might be made substantive and consequential, so that it is not merely a passive status awarding a minimal schedule of liberal rights – or, as might with some justice be alleged of EU citizenship, a status adding no extra value to the rightsholding most of its inhabitants already enjoyed. In short, institutional capacity and facilitative social relations are the two tests facing a worthwhile and plausible version of EU citizenship. EU citizenship matters to the freedom, well-being, and the political agency of individuals, and so bears crucially on the ultimate order of primary goods. It is essential to the moral justification of political power – institutionalised and legitimated as political authority – and thus to the EU’s standing as a political project. Citizenship, it will be argued, is a project of political justification.

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Method: normative political theory The political philosophical concepts relevant to citizenship in the EU (including the concept of citizenship itself) are all normative concepts. To prevent misunderstanding, let me clarify what normative theorists mean when they say a concept or a theory is a normative concept or a normative theory. To say a concept is a normative concept is not to say (or not principally to say) that it deals with norms. Normative concepts are not concepts that take norms as their objects of enquiry – rather they are concepts intrinsically asserting moral content. The concepts to be discussed in this book are normative concepts, meaning they are moral in two ways. First, they bear on the interests of others as well as on agents’ selfinterests.38 Secondly, they are not descriptive, but make claims: ‘they command, oblige, recommend, or guide’; they ‘tell us what to think, what to like, what to say, what to do, and what to be’.39 A normative theory, similarly, is not a theory about norms but a theory of norms. It is not a positive theory taking norms as its object, as a social scientist might, for example, use positive theory to investigate how or why elites adopt certain norms. Instead, a normative theory will in general be one supplying the practical resources for motivating and for evaluating action, while also containing accounts of the meaning and content, field of application, and sources, of its concepts.40 It should tell us what we must or must not, may or may not, do, and why. It will assert moral imperatives providing (putative) reasons for action as well as grounds for the attribution of praise and blame, reward and punishment, and evaluations of worth.41 It is about what ought to be, not what is: about ‘values’, not ‘facts’. Normative theory, then, supplies a framework within which salient questions about action oriented to valued purposes can be posed, and answers attempted.42 It allows us to select prime values, rank them, and balance or adjudicate them, all from grounded positions able to offer reasons. Through it, we may hope to arrive at a reasoned view as to which considerations should count, and how to weigh them. And we must proceed from such normative theories if we are to adequately identify, analyse, clarify and evaluate both normative problems and the ranges of alternative responses to them. Without the systematicity and rigour of such theories we would be left, in discussing both the EU and EU citizenship, where we mostly are now: trading intuitions and expressing (emotivist) preferences. With regard to the relationship between normative (‘ideal’) theory and the analysis and assessment of political phenomena in the non-ideal real world, Moravcsik has argued that an applied evaluation of normative concepts must be pragmatically viable, and this means that it must be based on ‘an empirical evaluation of the extent to which [the relevant philosophical ideals] can best be approximated under the constraints imposed by the “second-best” world of the specific case in question’.43 For example, we should not assess the democratic quality of non-state political frameworks like the EU by comparing them with (the requirements specified by) an ideal philosophical theory, because this kind of analysis is utopian and unhelpful.44 Instead, we should see whether they approximate

INTRODUCTION

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existing democratic systems45, because these will show us what can realistically be hoped for under real-world constraints. Lest the book you are now about to read be consigned too hastily to the dustbin of utopianism, perhaps I had better enter the lists to challenge this claim. There is no doubt that there are theoretical and methodological difficulties in moving from ideal theory to ‘real-world’ analysis. How, and how far, empirical desiderata should constrain theory, are debatable matters, and I do not claim to have arrived at the answers in this work. But Moravcsik’s recommendation that we assess putative instantiations of an ideal (or ideals) not against the specifications of ideal theory, but against existing cases that instantiate the ideals, is no solution. Without comparing those existing cases themselves against ideal theory, we could have no way in principle of knowing that they really did instantiate the ideals that we are interested in. Further, we have no warrant to assume that where a real-world case departs from what ideal theory specifies as the first-best solution it has nonetheless secured the second-best solution, under real-world constraints or otherwise. And we could only assess whether whatever solution it had secured was indeed the second-best of all possible alternatives by again consulting ideal theory. In the real world there is such a thing, I think, as institutional capture of terms that allude to widely valued ideals (like ‘democracy’ and ‘citizenship’). Incremental change can make our characterisations of political phenomena gradually less accurate, and the meanings of terms we have affixed to them – like ‘democratic’ – can imperceptibly become ever more remote from the original ideals they are (still) intended to express. It surely behoves us as analysts not to take the objects of our enquiry at their own estimation. One final remark on this matter: the degree to which assessment must be constructed in the light of practicability considerations surely depends on what type of assessment it is and what its purpose is. This current work is a work of political philosophy not intended to provide policy guidance but aiming nonetheless to construct a coherent account of political relations and possibility that is not frivolous. Whatever might be said about moral philosophy in general, normative political theory is the exercise of practical reason – or praxis, to adopt another idiom.46 It thinks about the existential characteristics of lives lived in ‘real time’, lives that are ineliminably individual but lived in collective contexts, and how those relations might be defensibly construed and managed. It shows which of our actual norms and commitments can survive scrutiny and which are merely arbitrary.47 It also asks how things ought to be, rather than taking for granted how they now are. But it does so with some knowledge of how things now are, and with some understanding of the constraints on their being otherwise. If reason is to be practical it should avoid the Scylla of utopia and the Charybdis of the status quo, and search for what is normatively ambitious within those constraints that are truly unalterable. In propounding what ought or ought not to be, it must bear in mind the limits on possibilities – but without creative stint in imagining the fullest range, and extending the limits, of those possibilities. As the subtitle to an inaugural lecture given by one EU commentator has it,

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the European Union is ‘in search of a political philosophy’.48 This work offers one, in the hope of encouraging more. It aims to set out a normative theory of supranational citizenship linked intrinsically to the justification of political authority, and explore it in the particular case of the EU. It enquires whether, from first principles, there is a coherent, consistent, and grounded normative theoretical account of supranational citizenship to be given, and, believing there is, sets it out. Beginning from agency, it postulates citizenship as the necessary basis of any defensible political organisation. While remaining in touch with the institutional realities of the EU, this theoretical work is not at all EU-specific. On the contrary, the conception elaborated here is a novel idea of citizenship in its own right, quite abstracted from considerations of location, and is intended to engage theorists and analysts of citizenship in general. Those whose interests lie in international affairs will see that this account of citizenship is capable of wider application to other systems of non-state political authority. Tracing some implications of the theory through a particular concrete political setting will help, it is hoped, to indicate and illustrate where the pressure points in justification and democratisation are in a non-state framework of political authority, and illustrate some approaches to tackling them. For better or worse the EU is deemed the exemplar of international integration, and general lessons may perhaps be learned both from its successes and its failures in resolving practical difficulties, and also from scholars’ successes and failures in theorising them. Supranational Citizenship argues that any citizenship capable of practical realisation and effect is necessarily part of a discrete institutional framework, but the level of political organisation at which that framework is pitched – national, regional, or global – need not enter the conception itself. On the other hand, the grounding values of such a citizenship will have to be capable of commanding universal support. Any plausible account of supranational citizenship will need sufficient abstractness and de-contextualisation to enable its escape from the cage of nation-state assumptions, while maintaining a tight link with bounded institutions. Most observers agree that a conception of EU citizenship needs to be other than ‘national’ and ‘cosmopolitan’, but perhaps cannot eschew either entirely. ‘Supra’, the Oxford English Dictionary tells us, means ‘above, beyond, in addition to’. Happily, the rubric ‘supranational citizenship’ neatly captures the different facets and the conceptual ambiguities of citizenship of the EU.

The philosophy of Alan Gewirth My approach to the problem of supranational citizenship draws on and extends the moral philosophy of Alan Gewirth,49 with which most of this book’s readers are likely to be unfamiliar. Many may have limited acquaintance with normative political theory in general, and of those who do happen to be blessed with interest and proficiency in political theory, some perhaps will be more at home with Continental, rather than Anglophone, traditions of social and moral thought. Accordingly a short introduction to Gewirth and his oeuvre may be helpful.

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Situating Gewirth Alan Gewirth died at the age of ninety-one in May 2004. At the time of his death he was the Edward Carson Waller Distinguished Service Professor Emeritus in the Department of Philosophy at the University of Chicago, where he had spent his career after undergraduate and doctoral study at Columbia University. The author of well over 100 articles and several books on moral and political philosophy, Gewirth was also the subject of over 150 articles, several books, doctoral dissertations, and conferences; received a number of illustrious prizes, fellowships, and awards; sat on many editorial boards; held visiting appointments at the Universities of Harvard, Michigan, John Hopkins, and California; held presidencies of both the American Philosophical Association (western division) and the American Society for Political and Legal Philosophy, and was elected Fellow of the American Academy of Arts and Sciences. At his death he was engaged in writing a book to be called Human Rights and Global Justice.50 Gewirth’s philosophical influences – Descartes, Kant, Marx, Aristotle, Marsilius of Padua, Spinoza – ensured his philosophical engagement was rooted in enduring and universal concerns, and from the 1980s onwards increasingly addressed themes in international normative political theory. His work is noted for its uncompromising rationalism and foundationalism, and for its scrupulous scholarship and painstaking rigour. Political theorists generally first encounter Gewirth’s writings in the literature on human rights, but it would be a mistake to see Gewirth as a philosopher who sometimes wrote on rights. Rather, his philosophy was a theory of rights, or perhaps we should say that rights were at the foundation and the centre of his moral and political philosophy. Indeed, when referring to his own work, he referred to it as ‘the theory of human rights’. To Gewirth’s mind, politics was a branch of, or nested within, morality.51 This does not reveal too rosy or high-minded a view of politics, but insists that politics needs something outside of itself by which it may be evaluated, and in particular that any justifications political phenomena appeal to must necessarily be moral justifications at root. So one point he makes is that politics is not immune from normative enquiry and normative critique. But he also makes the point that politics gets its rationale from morality. It is not just that political institutions (say) may be tested against normative criteria supplied by a theory of morality, but also that a theory of morality determines what kinds of institutions may and may not be created and sustained, and what they then may or may not do: so the relationship of morality to politics is determinative as well as evaluative and critical. Further, his work demonstrates that not only do politics need morality but that morality needs politics: the two are separable but symbiotic. Gewirth’s philosophy is far from fully deductive. Certainly it proscribes some specific actions (torture, for example) and certainly it prescribes some specific actions (fair trials, for example). But what can be specified in this way as forbidden or as mandatory comprises a small set of determinate points within the universe of possibilities, and about the rest the theory is either indeterminate or

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under-determining. Outside of the fixed points of the prohibited and the compulsory lies a vast zone of permissibility. Moreover, even the more determinate principles admit a margin of appreciation, allowing the possibility that any one of a number of putative actions and measures may conform to it. For instance, though the right to freedom mandates the principle that people must have effective opportunities to consent and dissent to political decisions, no particular set of arrangements is implied. A wide array of mechanisms may be compatible with the principle, and are therefore permissible within the terms of the theory, so long as their adoption has itself met the test of public consent. Indeed, the theory must itself incorporate this kind of freedom, given its assertion of freedom as a foundational value. For a political theorist it is not overtaxing to see Gewirth as a liberal individualist. That his theory is liberal could be argued from its stress on freedom and rationality; that it is individualist in a strong sense is evident throughout, in its adherence to both methodological and ethical individualism and, consistent with this, its rejection of both holism (the idea that groups or collective entities as such have independent moral standing) and utilitarianism (which risks sacrificing the rights of one person to the rights of a few or many). Nonetheless, the unswerving commitments to individual freedom and well-being in Gewirth’s philosophy end up in a defence of political values, policies, and institutions that are in many ways highly convergent with what Europeans would recognise as social democracy, or ‘the European social model’. How does his theory manage to take him from starting premises that are libertarian in temper, to these social and political measures? In a nutshell, because Gewirth argues that the most important values are the freedom and well-being of individual persons, and that those values are only secured through social and political institutions that are both democratic and supportive: democratic in the sense that each person has an equal right to consent and dissent to them, and supportive in the sense that they prevent the conditions in which persons’ freedom and well-being are exposed to certain kinds of structural harm (such as poverty or lack of education, for example). An outcome of Gewirth’s theory is that governments (as temporary incumbents of the polity’s institutions) ought to secure the conditions in which persons can pursue their goals with some chance of success, and political justification – and consequently, political legitimacy – depends on their doing so. On the other hand, Gewirth’s is most definitely not a theory of benevolent despotism, in which a passive populace awaits the receipt of bread and circuses (or ‘output’, as we EU scholars call it). Within an adequately supportive polity individuals must make their own choices as to what values or goods to pursue, exercise their own initiative and expend their own effort to pursue them, and take responsibility for their achievements and for their failures. So Gewirth rejects both political paternalism and individual dependency. Further, though he thinks that we each owe each other duties of help and support and this sometimes implies economic redistribution and solidaristic attitudes, he is staunchly opposed to the principle that individual rights may be subordinated to collective interests.

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Why Gewirth? Though Gewirth’s theory is not the sole way to approach citizenship in the EU it has much to commend it and so it seems a worthwhile exercise to see how a Gewirth-inspired account might work out. To envisage the structure of EU citizenship we need to be able to abstract both from existing institutional forms and practices and from existing forms of societal association, so that our thinking is skewed as little as possible by nation-state assumptions. The highest degree of abstraction would be a theory of agency as such, and this is precisely what Gewirth provides, since his is a theory of rational agency (or moral agency, since for Gewirth these are the same). My work, as will be seen, aims to turn that theory of rational agency into a theory of political agency, and in doing so turn a theory of the moral relations holding between persons universally into a theory of political efficacy capable of application to transnational decision-making structures, without needing to be bound by the practices of their member states. Though highly abstract, Gewirth’s is a philosophy with intent; locating morality in action rather than being, it is an exercise in practical reason. It asserts foundational claims about the human condition and human value that are parsimonious but that cannot with consistency be rejected by any agent (or so he claims). It provides two core values – freedom, and well-being – that are context-independent but able to structure a substantive theory of political morality presupposing neither any particular ‘thick’ ethical and communal attachments nor any particular form of political unit, though it accommodates varieties of all of these. While it evinces what might be though of as cosmopolitan ideals, it highlights the importance of situatedness and of institutions in realising those ideals. From its de-contextualised premises can be deduced a theory of justice by which principles of political community and of political organisation can be articulated, and scrutinised, and in the light of which actual political communities and actual polities may be assessed: it offers the possibility of critique, but also of normative guidance. While the political theory of supranational citizenship offered here owes a great debt to Gewirth’s thinking and draws heavily on its propositions, concepts, and methods, it is not a straightforward application of his theory. Nor does it present and discuss objections to, or offer a critique of, Gewirth’s work. Instead, the purpose of this project is to explore what Gewirth’s basic theory, as it stands, and on my reading, might contribute to a reconstruction of citizenship for contemporary circumstances. This work concentrates on just those parts of the theory relevant to the problem at hand. In places it draws out what is implicit rather than stated, and elsewhere it builds the theory further. I hope to have clarified, extended, and developed Gewirth’s theory, but in any case, it is taken in directions that seem to me to be consistent with its underlying premises and major propositions, and not incompatible with what I presume to be, in a broad sense, its moral commitments. Gewirth, of course, cannot be held responsible for the use I have made of his work.

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Overview Chapters 1 and 2 provide a critical discussion of current approaches to citizenship in political theory, showing that both the standard accounts and more recent ‘global’ accounts are defective accounts of citizenship. They construe citizenship too heavily in terms of membership and privilege; conflate social membership with political membership; elide roles, statuses, and identities; do not distinguish adequately between morality, ethics, and politics; and offer unsatisfactory accounts of political organisation. After an analytic account of the legal development of EU citizenship, Chapter 3 gives a critical and selective overview of commentary and scholarship on it organised around the ‘no-demos’ thesis. These three chapters on citizenship in Part I lay the groundwork for Part II, which addresses the issue of EU citizenship’s substance and efficacy, and for Part III, which addresses the issue of identity and affect within the EU. The first chapter in each of Parts II and III (Chapters 4 and 8) are largely exegetical, laying out Gewirth’s relevant writings; the middle chapters of each Part (Chapters 5, 6 and 9) refashion and extend the theory; and the final chapters of each Part (Chapters 7 and 10) discuss relevant topical issues in the EU in the light of the preceding theoretical development. The main exposition of Gewirth’s basic theory is given by Chapter 4. Chapter 5 presses hard against Gewirth’s notion of rational agency and deduces from it a purely political conception of agency that, it contends, flows from his theory of action and interaction. Citizenship is better understood as an institutional role than as a status, and is less about passive rights-holding than it is about having effective powers to shape existential conditions. Chapter 6 posits citizenship as necessary to the polity’s democratic authority. Authority depends not on the form in which political power is embedded but rather on how it is constituted and exercised, and citizenship is intrinsic to the possibility and the constitution of democratic political authority. Further, in principle a wide array of forms of political organisation can be morally justified. What matters is how the political institutions conduce to the freedom and well-being of individuals. Chapter 7 picks up these themes and considers aspects of agency within the EU. It calls for a rethink of the way notions such as democracy and representation are understood in the EU. Unless citizens’ role as the source of authorisation is recognised, both citizenship and democracy are unrealizable. Chapter 8 offers a brief exposition of Gewirth’s thinking on community and rights, mutuality, and ‘the good’. In Chapter 9 the objection that the required social and cultural preconditions for EU citizenship are lacking is taken up. A conception of political community, apt to the case at hand, and founded on the ideas of a ‘community of rights’ inhabited by ‘reasonable composite selves’, able to appropriately order their own multiple and varied roles, attachments, and commitments, and to respect other persons’ justifiable, multiple, and varied roles, attachments, and commitments, is elucidated. Finally, what role should values and conceptions of the good life play in a polity, and what role ought they to play in a supranational polity containing a diversity of ways of life? In Chapter 10 these

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questions are considered. Informed by the work of Chapters 9 and 5 in particular, I argue for ‘impartial perfectionism’, in which the EU framework even-handedly assures and affirms diversity of morally acceptable ways of life. I claim this is the form of the good supranational polity, and offer some brief remarks on topical debates in the EU in its light. Finally, the Conclusion sums up.

Notes 1 Raymond Aron, ‘Is Multinational Citizenship Possible?’, Social Research, 41:4 (1974), 653. 2 Articles 8 a–e, Treaty on European Union (EC) (1992). 3 Jeremy Waldron, ‘Minority Cultures and the Cosmopolitan Alternative’, University of Michigan Journal of Law Reform, 25:3 (1992), 780. 4 Waldron, ‘Minority Cultures and the Cosmopolitan Alternative’, 771–6. 5 Waldron, ‘Minority Cultures and the Cosmopolitan Alternative’, 779. 6 Robert A. Dahl and Edward R. Tufte, Size and Democracy (Stanford, CA: Stanford University Press, and London: Oxford University Press, 1974); Robert A. Dahl, ‘A Democratic Dilemma: System Effectiveness versus Citizen Participation’, Political Science Quarterly, 109:1 (1994), 23–34; Robert A. Dahl, On Democracy (New Haven and London: Yale University Press, 1998), pp. 100–18. 7 David Held, ‘Sovereignty, National Politics and the Global System’, in David Held, Political Theory and the Modern State (Cambridge: Polity Press, 1989); Chris Brown (ed.), Political Restructuring in Europe: Ethical Perspectives (London: Routledge, 1994); David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Cambridge: Polity Press, 1995); Daniele Archibugi and David Held (eds), Cosmopolitan Democracy: An Agenda for a New World Order (Cambridge: Polity Press, 1995); Andrew Linklater, ‘Citizenship and Sovereignty in the Post-Westphalian State’, European Journal of International Relations, 2:1 (1996), 77–103; Andrew Linklater, The Transformation of Political Community: Ethical Foundations of the Post-Westphalian Era (Cambridge: Polity Press, 1998); Kimberly Hutchings and Roland Dannreuther (eds), Cosmopolitan Citizenship (Basingstoke and New York: Macmillan Press Ltd and St Martin’s Press, 1999); Michael Th. Greven and Louis W. Pauly (eds), Democracy beyond the State? The European Dilemma and the Emerging Global Order (Lanham, Boulder, New York, Oxford: Rowman and Littlefield Publishers Inc., 2000). 8 Joseph M. Grieco, ‘Systemic Sources of Variation in Regional Institutionalization in Western Europe, East Asia, and the Americas’, in Edward D. Mansfield and Helen V. Milner (eds), The Political Economy of Regionalism (New York and Chichester: Columbia University Press, 1997), pp. 164–87; Walter Mattli, The Logic of Regional Integration: Europe and Beyond (Cambridge: Cambridge University Press, 1999). 9 Albert Weale, ‘Democratic Legitimacy and the Constitution of Europe’, in Richard Bellamy, Vittorio Bufacchi, and Dario Castiglione (eds), Democracy and Constitutional Culture in the Union of Europe (London: Lothian Foundation Press, 1995); Daniela Obradovic, ‘Policy Legitimacy and the European Union’, Journal of Common Market Studies, 34:2 (1996); Albert Weale, ‘The Single Market, European Integration and Political Legitimacy’, in David G. Mayes (ed.), The Evolution of the Single European Market? (Aldershot: Edward Elgar, 1997); David Beetham and Christopher Lord, Legitimacy and the European Union (Harlow and New York: Addison Wesley/Longman Ltd, 1998); David Beetham and Christopher Lord ‘Legitimacy and the European Union’, in Albert Weale and Michael Nentwich (eds), Political Theory and the European Union: Legitimacy, Constitutional Choice and Citizenship (Routledge/ECPR Studies in European Political Science, 1998), pp. 15–33; Thomas Banchoff and Mitchell P. Smith (eds), Legitimacy and the European Union: the contested polity (London

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SUPRANATIONAL CITIZENSHIP and New York: Routledge, 1999); Marcus Höreth, ‘No Way out for the Beast? The Unsolved Legitimacy Problem of European Governance’, Journal of European Public Policy, 6:2 (1999); Christopher Lord and David Beetham, ‘Legitimizing the EU’, Journal of Common Market Studies, 39:3 (2001), 443–62; Richard Bellamy and Dario Castiglione, ‘Normative Theory and the European Union: Legitimising the Euro-Polity and its Regime’, in Lars Trägårdh (ed.), After National Democracy: Rights, Law and Power in America and the New Europe (Oxford: Hart Publishing, 2004). Though a notable dissenter is Andrew Moravcsik, for example in his ‘In Defence of the “Democratic Deficit”: Reassessing Legitimacy in the European Union’, Journal of Common Market Studies, 40:4 (2002). Maria Green Cowles, James Caporaso, and Thomas Risse (eds), Transforming Europe: Europeanization and Domestic Change (Ithaca and London: Cornell University Press, 2001); Klaus H. Goetz and Simon Hix (eds), Europeanised Politics? European Integration and National Political Systems (London and Portland, OR: Frank Cass, 2001); Tanja A Börzel, ‘Member State Responses to Europeanization’, Journal of Common Market Studies, 40:2 (2002). Liesbet Hooghe and Gary Marks, Multi-Level Governance and European Integration (Lanham, MD and Oxford: Rowman & Littlefield Publishers Inc., 2001), pp. 187–9. Jolyon Howorth, ‘European Defence and the Changing Politics of the EU: Hanging Together or Hanging Separately?’, Journal of Common Market Studies, 39:4 (2001), 581–94; Anthony Forster and William Wallace, ‘Common Foreign and Security Policy’, in Helen Wallace and William Wallace (eds), Policy-Making in the European Union (Oxford and New York: Oxford University Press, 4th edn, 2000); Michael J. Brenner, ‘Europe’s New Security Vocation’, McNair Paper 66 (Washington, DC: Institute for National Strategic Studies, 2002); James Sperling and Emil Kirchner, Recasting the European Order: Security Architectures and Economic Cooperation (Manchester and New York: Manchester University Press, 1997); Maarje Rutten (ed.), ‘From Nice to Laeken – European Defence: Core Documents’, Chaillot Paper No 51, The EU Institute for Security Studies 2002, at www.iss-eu.org. Emek M. Uçarer, ‘Justice and Home Affairs in the Aftermath of September 11: Opportunities and Challenges’, EUSA Review, 15:2 (2002). Anne-Marie Burley and Walter Mattli, ‘Europe Before the Court: A Political Theory of Legal Integration’, International Organization, 47:1 (1993), 41–2. Van Gend en Loos [ECJ 1963]. Kieran St. Clair Bradley, ‘The European Court of Justice’, in John Peterson and Michael Shackleton (eds), The Institutions of the European Union (Oxford: Oxford University Press, 2002), p. 130. Costa v ENEL [ECJ 1964]. Alec Stone, ‘What is a Supranational Constitution? An Essay in International Relations Theory’, Review of Politics, 56 (1994), p. 473, emphasis in original. Philip Ruttley, ‘The Long Road to Unity: the Contribution of Law to the Process of European Integration since 1945’, in Anthony Pagden (ed.), The Idea of Europe: From Antiquity to the European Union (Cambridge and Washington, DC: Cambridge University Press and Woodrow Wilson Center Press, 2002), p. 258. John Kincaid, ‘Confederal Federalism and Citizen Representation in the European Union’, West European Politics, 22:2 (1999). James A. Caporaso, The European Union: Dilemmas of Regional Integration (Boulder, CO: Westview Press, 2000). Commission of the European Communities, ‘Treaty Establishing a Constitution for Europe’, Official Journal of the European Union C series, No. 310, 16 December (Luxembourg: Office for Official Publications of the European Communities, 2004). On the Constitutional Treaty, see Lynn Dobson and Andreas Follesdal (eds), Political Theory and the European Constitution (Oxford and New York: Routledge, 2004). Vaughne Miller, ‘The Laeken Declaration and the Convention on the Future of Europe’, Research Paper 02/14, International Affairs and Defence Section, House of Commons

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29 30 31 32 33

34 35 36

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Library, 8 March 2002; Commission of the European Communities, ‘Charter of Fundamental Rights of the European Union’ (Luxembourg: Official Journal of the European Communities, 2000/C 364/01). Joschka Fischer, ‘From Confederacy to Federation: Thoughts on the Finality of European Integration’, speech delivered at the Humboldt University in Berlin, 12 May 2000, at www.auswaertiges-amt.de/www/en/index.html;Tony Blair, ‘Prime Minister’s Speech to the Polish Stock Exchange’, speech given in Warsaw on 6 October 2000, at www.number10.gov.uk/ news.asp?Newsld=1341&Sectionld=32. Anthony Pagden, ‘Introduction’, in Anthony Pagden (ed.), The Idea of Europe: From Antiquity to the European Union (Cambridge and Washington, DC: Cambridge University Press and the Woodrow Wilson Center, 2002), p. 3. Paul Magnette, ‘European Citizenship from Maastricht to Amsterdam – The Narrow Path of Legitimation’, Journal of European Integration, 21:1 (1998); Antje Wiener ‘From Special to Specialized Rights: The Politics of Citizenship and Identity in the European Union’, in Michael Hanagan and Charles Tilly (eds), Extending Citizenship, Reconfiguring States (Maryland: Rowman and Littlefield, 1999), p. 210. W. Kymlicka and W. Norman, ‘Return of the Citizen: A Survey of Recent Work on Citizenship Theory’, Ethics, 104 (1994), 352–81, p. 352. T. H. Marshall, ‘Citizenship and Social Class’, in Citizenship and Social Class and Other Essays (Cambridge: Cambridge University Press, 1950), p. 87. Brigid Laffan, ‘The Politics of Identity and Political Order in Europe’, Journal of Common Market Studies, 34:1 (1996), p. 100. Joseph Weiler, ‘Does Europe need a Constitution? Demos, Telos and the German Maastricht Decision’, European Law Journal, 1:3 (1995), 252–4. For the former, see Dimitris N. Chryssochoou, Democracy in the European Union (London and New York: I. B. Tauris, Publishers, 1998, 2000); for the latter, see Andrew Moravcsik, ‘Preferences and Power in the European Community: A Liberal Intergovernmentalist Approach’, Journal of Common Market Studies, 31:4 (1993). Wayne Norman, ‘Towards a Philosophy of Federalism’, in Judith Baker (ed.), Group Rights (Toronto, Buffalo and London: University of Toronto Press, 1994), p. 86. Charles Taylor, ‘Shared and Divergent Values’, in Ronald L. Watts and Douglas M. Brown (eds), Options for a New Canada (Toronto: University of Toronto Press, 1991), p. 64. See for example Held, ‘Sovereignty, National Politics and the Global System’; Held, Democracy and the Global Order; Archibugi and Held (eds), Cosmopolitan Democracy; Daniele Archibugi, David Held and Martin Köhler, Re-imagining Political Community: Studies in Cosmopolitan Democracy (Cambridge: Polity Press, 1998); Linklater ‘Citizenship and Sovereignty in the Post-Westphalian State’; Linklater, The Transformation of Political Community; Brown (ed.), Political Restructuring in Europe; Hutchings and Dannreuther (eds), Cosmopolitan Citizenship; Pheng Cheah and Bruce Robbins (eds), Cosmopolitics: Thinking and Feeling Beyond the Nation (Minneapolis and London: University of Minnesota Press, Cultural Politics 14, 1998); Nigel Dower, ‘The Idea of Global Citizenship – A Sympathetic Assessment’, Global Society, 14:4 (2000). Richard Bellamy and Alex Warleigh, ‘From an Ethics of Integration to an Ethics of Participation: Citizenship and the Future of the European Union’, Millennium, 27:3 (1998), p. 468. While one can imagine an egoistic and/or solipsistic agent having interests only in his or her own well-being, for example, that would make well-being something other than a political concept. Because political concepts always presuppose at least two agents, they are always moral in this first sense. Christine Korsgaard, ‘The Normative Question’, in Christine M. Korsgaard, The Sources of Normativity (Cambridge: Cambridge University Press, 1996), pp. 8–9. Korsgaard, ‘The Normative Question’, p. 11. Ibid.

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42 Brian Barry, ‘Is it Better to be Powerful or Lucky? Part I’, Political Studies, 28:2 (1980); ‘Part II’, 28:3 (1980). 43 Andrew Moravcsik, ‘Is there a “Democratic Deficit” in World Politics? A Framework for Analysis’, in David Held and Mathias Koenig-Archibugi (eds), Global Governance and Public Accountability (Oxford; Malden, MA; Carlton, Victoria: Blackwell Publishing), 2005, p. 223. 44 Moravcsik, ‘Is There a “Democratic Deficit” in World Politics?’ p. 219. 45 Moravcsik, ‘Is There a “Democratic Deficit” in World Politics?’ pp. 213, 223, 238. 46 By ‘practical reason’ and ‘praxis’ I mean that the purpose and focus of the theoretical activity is not primarily the exploration of thought itself, but rather human affairs and (inter)actions in what we take to be the empirical world. 47 Onora O’Neill, Bounds of Justice (Cambridge: Cambridge University Press, 2000) p. 26. 48 Deirdre M. Curtin, Postnational Democracy: The European Union in Search of a Political Philosophy (The Hague: Kluwer Law International, 1997). 49 Book-length presentations are: Alan Gewirth, Reason and Morality (Chicago: University of Chicago Press, 1978); Alan Gewirth, Human Rights: Essays on Justification and Applications (Chicago: University of Chicago Press, 1982); Alan Gewirth, The Community of Rights (Chicago and London: University of Chicago Press, 1996); Alan Gewirth, Self-Fulfillment (New Jersey and Chichester: Princeton University Press, 1998). Collections of critique and commentary (with Gewirth’s responses) are to be found in Michael Boylan (ed.), Gewirth: Critical Essays on Action, Rationality, and Community (Lanham, Boulder, New York and Oxford: Rowman and Littlefield Publishers, Inc, 1999), Edward Regis Jr. (ed.), Gewirth’s Ethical Rationalism: Critical Essays with a Reply by Alan Gewirth (Chicago: University of Chicago Press, 1984), J. Roland Pennock and J. W. Chapman (eds), Human Rights (Nomos XXIII) (New York: New York University Press, 1981), and collected essays in Ethics, 86 (1976). A comprehensive commentary claiming to vindicate Gewirth’s theory in detail is Deryck Beyleveld, The Dialectical Necessity of Morality: An Analysis and Defense of Alan Gewirth’s Argument to the Principle of Generic Consistency (Chicago and London: University of Chicago Press, 1991). 50 This has been compiled from a number of biographies and obituaries found on the worldwide web before and after Gewirth’s death. I have used only material I believe to be accurate (usually by requiring at least two good sources per item). 51 Alan Gewirth, ‘Individual Rights and Political-Military Obligations’, in Human Rights: Essays on Justification and Applications, p. 242; Alan Gewirth, Political Philosophy (New York: The Macmillan Company, London: Collier-Macmillan Ltd, 1965), pp. 1–3.

PART I

1 Citizenship I: membership, privilege, and place Introduction Citizenship is an object of enquiry in many disciplines, though perhaps especially prominent in political theory and political science, law, and sociology. Until the early 1990s it appeared to be moribund as a field of study, but a resurgence of interest since then has spawned a now huge literature.1 As every book on citizenship sooner or later says, there are many conceptions and theories of citizenship, all contested to some degree, and some of which are more controversial than others. Across the variety of accounts, however, a small number of core focuses tend to recur. This is not surprising once the distinction between a concept and its conceptions is grasped.2 A concept, we might say, is a highly abstract, general, and parsimonious kind of idea that carves out and defines a space of particular meaning vis-à-vis other spaces of meaning, while a conception is a more fleshed out and determinate account of the root concept. Concepts themselves are too abstract and indeterminate to be of much use as tests or guides in practical application, so require a process of deduction, inference, interpretation, and specification to turn them into something more substantive – conceptions. The more substantive an idea gets, though, the more contested it will be by those with alternative deductions, inferences, interpretations, and specifications. Any one concept is likely to give rise to a number of differing conceptions. For example, the concept of democracy has generated liberal democracy, social democracy, participatory democracy, representative democracy, direct democracy, deliberative democracy, and so on. Further, while each of the many different conceptions that a concept might generate must be consistent with that original concept, so that (for instance) each conception of democracy listed above must be able to show by reference to the core of the concept ‘democracy’ precisely that it is a specification of democracy rather than of something else – autocracy or aristocracy, say – such conceptions need

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not be (and often are not) mutually compatible, and indeed they may be openly rivalrous. Although concepts are abstract, general, and parsimonious, they do have content sufficient to distinguish them from each other. So while scholars of politics may argue about what the concept of ‘democracy’ implies in terms of political organisation and action, and aesthetes might argue about what the concept of ‘beauty’ implies for creative endeavour, neither camp is likely to make the mistake of confusing the two. For this reason, although conceptions may be and often are extensively contestable, even perhaps to the point of being almost absolutely contestable, concepts cannot be. The more contestable any concept is, the less confident we can be that it is the same idea that is being contested. If my conception of democracy is of representative democracy, and yours is of direct democracy, we can both still agree that our argument is about differing conceptions drawn from a basic concept of democracy meaning public control over public decision-making; whereas if I believe the concept of democracy is about public control of public decision-making, and you believe the concept of democracy is about harmonious composition in the plastic arts, then it is very difficult to see that we are arguing about the same concept at all. Besides being abstract, general, and parsimonious, concepts are also constrained. They cannot be taken to mean just anything, and we cannot load into them whatever set of interpretations we wish – not, that is, if we want to continue to communicate with others about them. What elements concepts do have may well be so parsimonious and underdetermining that many rival conceptions may be consistent with them, but they are essential. Despite reasonable and legitimate disagreement about citizenship, then, its fundamental conceptual elements are clear: citizenship denotes the relationship between an individual and a locus of politics. (Note that defining citizenship as a status does not rebut the point; status itself is a concept that only makes sense as a way of capturing a set of relationships.) There must be some kind of locus of politics, because citizenship is always ‘citizenship of ’ x, y, or z (though we need not assume in advance what x, y and z are, since competing conceptions give different answers to that bit of the equation) and because citizenship refers finally to a kind of relationship, and relationships are by definition held between more than one thing. Further, the nature of that relationship – what actually links the person and the site of politics (however we might choose to think of it) may be specified under three broad domains. Citizenship as a relationship comprises three things – a standing such that an expectation of reciprocal obligation arises; an intersubjective sense of belonging (to a collective); and certain kinds of action on matters of common concern. Although it is often thought that rights and duties in combination with a sense of communal belonging are what citizenship is all about, these are attributes of subjects as well as citizens, and where they are not accompanied by certain kinds of political capacity (to be elaborated in Part II), they define subjects only. Much more is going to be said about each of these elements in this and succeeding chapters. For now it suffices to note that none of them in and of itself is

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definitive of citizenship, but that any conception of citizenship must accommodate all three in some way (though, as I shall be arguing, not necessarily in the way that is usually held to be the case) if it is indeed to be a conception drawn from the concept of citizenship rather than drawn from some other concept. Different conceptions of citizenship, however, differ greatly in how they understand, combine, and treat its components. Typically, differing conceptions will construe the three components differently, weight them differently, and accord them different priorities, so that various approaches come to have distinctive sets of emphases. For example, neo-liberal accounts of citizenship focus on the holding of rights that protect individuals from corporate power (especially that of the state), while nationalist accounts focus on the idea of a certain kind of membership in a certain kind of bounded community. My aim in this chapter is to begin to define a conception of supranational citizenship by locating it within the universe of citizenship debates, and seeing what it accepts and what it rejects of currently influential theoretical approaches.

Citizenship and the nation-state: faces of privilege The empirical reality of citizenship, as we experience it, is one forged in the crucible of the nation-state. Historically speaking both the practices and the conceptual apparatus associated nowadays with citizenship developed from the sixteenth century contemporaneously with the modern states system, modern nationalism, and modern industrial and post-industrial capitalism, though it arose out of (and is often seen as continuous with) practices and ideas that are very much older. For this reason our understanding of citizenship, until the early 1990s, was so thoroughly amalgamated with our understanding of the modern nation-state that many people still find it impossible to conceive of citizenship as anything other than a certain kind of relationship with or status within a nation-state. This may just be conceptual incapacity on their part, but more often it amounts to either or both of two things. It may be a conceptual claim to the effect that the concept itself has become so thoroughly imbued with nationalist and statist notions that they are now the core without which it is not intelligible at all. As noted in the Introduction, it sometimes so happens that once concepts (whether of citizenship or democracy or beauty or anything else) are long instantiated in a particular institutional form, we find it difficult thereafter to grasp them outside the cage of that instantiation. Alternatively, we may continue to see the form as instantiating the concept long after its substance has drained away, just as Florence under the Medici maintained the façade of a renaissance republic while being ruled by autocratic dynasts. If not a conceptual claim, it may amount to an empirical claim about citizenship’s real-world conditions of possibility. Among those who consider the matter, many serious thinkers hold that citizenship depends on specific attitudinal or temporal or institutional factors (for example, trust) that happen to be uniquely present in actual nation-states or their parts, or are only possible in that form (or scale) of political organisation we call the nation-state or its parts.

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However, most work on citizenship does not consider explicitly what scale of polity it refers to, because most existing approaches to citizenship presuppose, or at least assume, a nation-state or something very like it – so the question of whether the citizenship being discussed is of a nation-state or something else simply doesn’t arise. Although some of those presuppositions and assumptions began to be challenged from the early 1990s the major propositions of what might be called the standard bodies of thought about citizenship are still its meat and drink, and continue to inform attempted reformulations of the idea of citizenship for non-state applications. Hence the dominant nation-state conceptualisations are our standard accounts, from which formulations of non-state citizenship (European, supranational, post-national, global, cosmopolitan, post-cosmopolitan, to name a few) depart. Standard accounts are therefore very far from being of merely antiquarian interest. Even those who reject the claim that citizenship only makes sense within a national setting may find themselves unwittingly reproducing some of its reigning assumptions, and will certainly need to consider carefully the arguments on which the claim relies. Common to these standard accounts are two broad underlying idealisations of citizenship. One of these sees the citizen as one who belongs to an affective community, a collectivity whose members are bound together by sentiments of attachment founded on ethnic or cultural or historical factors. There are different formulations of this general perspective, but from it there is a clear distinction in principle between those who belong (the citizens) and those who do not belong (the non-citizens). This approach can be accurately captured under the rubric ‘the citizen as one of us’. A second kind of idealisation understands the citizen to be the recipient of certain kinds of socially generated ‘goods’ obtaining within the particular society, goods usually conceived of as rights or entitlements which are not held by or accessible to non-citizens. There are different formulations of this notion, too, but common to them is the sense of citizenship as a status of privilege marking off those who have a full share in a wide range of benefits (broadly construed) available within a particular society from those, such as foreigners, who do not. I will call this ‘the citizen as beneficiary’ approach. These idealisations are cross-cutting; typically, a conception of citizenship will contain both to some extent, and construe the former as the condition and the ground for the latter.

Citizen as one of us Citizenship is often thought of as marking the boundaries of political community and therefore distinguishing insiders from outsiders, those who belong to the community from those who do not. This is a conceptual distinction, but it is often conflated with assumptions that the community whose boundaries it marks is one with a shared history and shared ethnic or cultural characteristics. That amalgam captures the commonplace lay understanding of citizenship, but it has sophisticated adherents too, coming from across both the left–right political axis and the liberal–anti-liberal philosophical axis, and well able to provide

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appropriately theorised reasons for conceiving of citizenship in this way. Versions of these approaches are often described as nationalist or communitarian.3 Though analytically distinct from each other they may be read as mutually consistent and therefore occur frequently together, though emphases shift from one theorist to another. The moral philosopher Alasdair MacIntyre,4 for example, thinks of citizenship in terms of a common morality stemming from particular and concrete social relations comprising obligations to and partialities towards others within the same bounded community that we do not have in respect of those outside it. Abstracted from such social particularity, a person is ‘a citizen of nowhere’.5 The social relations that matter for citizenship are historical and rooted in narratives of place, so that we understand our lives and those of people around us as stories embedded in the same larger stories, and the understanding that they are so embedded is vital for the possibility of morality itself: ‘if I do not understand the enacted narrative of my own individual life as embedded in the history of my country … I will not understand what I owe to others or what others owe to me, for what crimes of my nation I am bound to make reparation, for what benefits to my nation I am bound to feel gratitude’.6 Coming, like MacIntyre, from a broadly communitarian perspective, but in this case one appealing to modern social democracy and discourse theory rather than aristotelianism, Walzer considers boundary-setting to be the core feature of citizenship.7 In his view, states ‘don’t only preside over a piece of territory and a random collection of inhabitants; they are also the political expression of a common life and (most often) of a national “family”’.8 Citizenship is membership of this club or family, the group being constituted by shared social meanings vis-àvis the social goods it creates and exchanges, chief of those being ‘community itself: culture, religion and politics’.9 The community then shares, and knows itself to share, a common life of social meanings, specified ‘through the decision-making processes of the political community’.10 The distinctiveness of cultures and groups depends on closure,11 so membership is the primary good distributed by citizens,12 such membership marking the boundaries of all goods including itself.13 It then follows from the logic of Walzer’s argument that the primary exercise of citizenship lies in citizens’ deciding which ‘outsiders’ should be permitted to become ‘insiders’: ‘With what other men and women do they want to share and exchange social goods?’14 Nationalist versions of community and citizenship such as those supplied by Miller,15 Canovan16, and Tamir17, draw similarly on the notion of a historic community of belief. For Miller, citizenship is the overarching political identity that can sufficiently integrate bounded but pluralistic societies whose members have different interests, socio-economic backgrounds, lifestyles, religious sympathies (and so on), so that they can form something like a general will to decide what is to the common good. They will arrive at this through dialogic processes, deliberating within the terms of the community’s political ethos.18 However, citizenship will only work on the basis of a common nationality. Without it, there will be reluctance to accept social duties, little motivation for redistributive policies, and

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the dispositions needed for the effective functioning of free and democratic political institutions (a willingness to moderate demands and to compromise, to refrain from pressing one’s gains or exploiting offices to one’s advantage) will be absent.19 By ‘nationality’ Miller understands a certain kind of personal identity, giving rise to bounded duties, and specified as belonging to a defined group with a right to an institutional structure enabling its members to decide together on matters of (their own collective) concern.20 National identity is constituted subjectively, rather than by objective features: ‘a nationality exists when its members believe that it does’;21 it embodies historical continuity that imposes obligation; it is active in shaping a common future; it connects people with a particular territory; and finally it incorporates some traits that its adherents believe not only marks them out as being similar with each other but also mark them off from others who do not share the same national identity.22 Miller’s conception of citizenship thus brings together a stress on nationhood, its ethical obligations, and historical awareness as seen in MacIntyre’s work, with a stress on the importance of common beliefs and meanings, and their constitution by discursive procedures, as seen in Walzer’s, and frames it within a republican politics of active participation and popular sovereignty in pursuance of the common – i.e, national – good. Conceptions of citizenship that are straightforwardly republican share many of these nationalist and communitarian assumptions but go further in arguing that they imply a strenuous version of political obligation. The community and the polity are one and the same, and citizens demonstrate their belonging to it actively through civic virtue: a positive practical orientation to the res publica, literally ‘public thing’, or what we might think of as the public sphere. For civic republicans, ‘citizenship is an activity or a practice, and not simply a status, so that not to engage in the practice is, in important senses, not to be a citizen’.23 In taking his place in this way in the open and public arena, a person becomes at the same time an equal amongst others, a full human being, and a citizen;24 indeed, for republicans these are different ways of expressing one and the same kind of moral and social standing. All other statuses and roles are subsumed by citizenship, and the ‘true’ or ‘real’ or ‘good’ citizen is one who subordinates private interest to public interest and puts the community’s interest above that of his own.25 Citizenship is not only a practice but also an ethos, and full and active citizenship is the zenith of human flourishing and accomplishment. Its attainment and practice requires a civic faith, inculcated by education: ‘the moral character which is appropriate for genuine citizenship does not generate itself … minds have to be manipulated’.26

Citizen as beneficiary Republicans, nationalists, and communitarians see entitlement to the goods the polity provides as the exclusive preserve (in principle) of those belonging to it, and grounded by that exclusivity of membership, but the notion that citizenship is a kind of club whose insiders benefit from political goods is not theirs alone. Another version of this is that often associated with liberal accounts, and especially

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classical liberal accounts, of the individual and the state. Its critics, for example, charge that liberal theories treat citizenship as merely the means by which a person’s status as bourgeois liberal subject is secured;27 that because liberals conflate citizens with individuals qua members of civil society their notion of citizenship lacks distinctive content; and that as citizenship to this way of thinking is merely a device by which individuals’ natural and civil rights and interests are protected from encroachment by the state, the liberal idea of the citizen is therefore instrumental, subordinate, and passive – more the status of a rights-holding subject than of a citizen. Certainly earlier thinkers in the tradition now thought of as classical liberalism, such as John Locke28 and John Stuart Mill,29 wrote extensively on the relations between individual persons (or more accurately, individual men) and their political institutions without writing explicitly about citizenship per se, and their modern descendants – whether neo-liberals like Hayek,30 liberal egalitarians such as Rawls,31 or ‘virtue’ liberals such as Macedo32 usually treat ‘citizen’ as synonymous with ‘member of liberal political society’ (or even ‘American’). Whatever the degree to which these liberal citizens are expected to be or are encouraged to be politically inactive or active, they are conceived predominantly as the political beneficiaries of the range of liberties and immunities that the state confers on its subjects. In that sense it is fair to see citizenship within this perspective as that status of privilege allowing persons to benefit from an extensive range of freedoms to act in private, civil, society. For liberal egalitarians these ‘negative’ benefits of citizenship are often supplemented with Hohfeldian33 claims, rights and entitlements to socio-economic goods, and here the liberal egalitarian citizen begins to resemble the social democratic citizen and the citizen as conceptualised within social theory and sociological investigations. By far the best-known discussion of these is found in T. H. Marshall’s celebrated ‘Citizenship and Social Class’.34 It was the thesis of that essay that a specific formulation of citizenship, emphasising rights rather than status and including civil, political and social rights, was the chief integrating factor in a modern institutionalised society.35 The historical process producing citizenship was one of increasing enrichment and embodiment of ‘the basic human equality of membership’:36 ‘enrichment’ in terms of the widening scope of rights (from civil, to political, to socio-economic) and their distribution across a larger fraction of the total population, and ‘embodiment’ because these rights coalesced and were formally institutionalised as attaching to the status of citizen, making political rights intrinsic to citizenship as such rather than a secondary product of privileged social and economic standing. Marshall contended that basic human equality was formally expressed by citizenship’s bringing about ‘a progressive divorce between real and money incomes’.37 Citizenship became the ‘conception of equal social worth, not merely of equal natural rights’38 by way of a ‘universal right to real income which is not proportionate to the market value of the claimant’.39 By this he meant that certain goods including healthcare, education, housing, employment protection, and legal representation were withdrawn from the pool of goods allocated by the price system and were distributed according to another

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criterion – citizenship status. The creation of modern citizenship also involved what Marshall described as a geographical fusion and functional separation.40 As Maitland noted, pre-modern institutions performed several functions and one and the same institution might be a legislative assembly, a governmental council and a court of law.41 Granting, withholding, and upholding of rights took place between a patchwork of often competing courts, where competence and jurisdiction was divided by custom and historical accretion rather than functionally. Rights and duties, on the other hand, were differentiated according to status, and status also determined the kind of justice one could get, where one could get it, and opportunities for participation in collective decision-making.42 The modern nation state changed all this. It brought about equality of rights and duties attaching to a single status – of citizen – but now within the functional differentiation of institutions. This came about as part of the extension of political authority over a larger territory or, more precisely, the incorporation of independent units of authority into a larger configuration – this is the emergence of the modern nation-state and states system. The new political entity, the nation-state, became the addressee of claims, guarantor of rights, and locus of authority and political obligation.

Critique: beneficial belonging and the nation-state Marshall’s conception of citizenship is predicated on two major assumptions. These assumptions are also present in the other accounts of citizenship surveyed, but as they receive their clearest articulation in Marshall’s ‘Citizenship and Social Class’ this discussion will confine itself to that. The first assumption is that citizenship is the qualifying condition for entry into systems of rights including welfare protection, and the second is that the only political community relevant to rights-holding is that of the nation-state. In 1949, when Marshall wrote, both of these assumptions were substantially correct. They are no longer. In the developed world at least the legal status of citizenship is no longer the qualifying condition for most of the rights and entitlements (and correlative duties) usually, but inaccurately, referred to as ‘citizens’ rights’ or ‘citizenship rights’. Calling them ‘citizens’ rights’ rests on a conceptual error and anachronistic assumptions. The error is to think that because rights are held by people who coincidentally also (mostly) happen to have the status of citizens, they are therefore citizens’ rights. But the qualifiers ‘citizens” and ‘citizenship’ in the terms ‘citizens’ rights’ and ‘citizenship rights’ describe not the persons to whom the rights adhere, but the nature of the rights – more precisely, their most decisive grounds. As to anachronistic assumptions, Marshall wrote his essay before the extraordinary flowering of rights regimes. In developed states today, as a consequence of rights development at both domestic and international levels,43 nearly all the rights held by states’ citizens, including civil and political rights, are granted on criteria other than citizenship and are also extended to persons who are not citizens – either to all persons within states’ territorial jurisdictions without remainder, or

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to several categories of person including citizens and non-citizens.44 Two major comparative surveys of citizenship and nationality law and the rights of citizenship (together covering twenty-four jurisdictions)45 found the most striking feature to be the extent to which ‘citizens’ rights’ were not conferred on the basis of citizenship/nationality; as regards welfare benefits particularly, the trend evident across jurisdictions is toward expansion of access beyond nationals and citizens.46 Even where their formal policy position suggests restrictiveness, states often extend benefits in practice to even undocumented – i.e. illegal – aliens.47 Virtually all civil, political, and socio-economic rights are now classified as human rights, and human rights pertain to persons in virtue of their humanity simpliciter.48 In Europe the rights environment is luxuriant and typically rights are granted on grounds including but not exhausted by citizenship.49 The peoples of the European Union in particular have been described as ‘probably the most human rights-protected people in world history’,50 and the legal provisions are comparatively well upheld in practice.51 While there is very great variation in provision, crucially that differentiation typically hinges less and less on whether one is or is not a citizen. Instead, discriminations between citizens, and discriminations between non-citizens, are more significant.52 EU nationals and long-term residents often have rights-protection not only under their own domestic or constitutional law but also under the laws of other member states – and even where this is not so, it cannot be assumed that non-nationals or non-citizens are not in fact treated similarly, ‘since the practice in the domestic jurisdiction may be to grant exactly the same freedoms to non-nationals as are enjoyed by nationals’.53 EU member states are signatories to the major international human rights conventions and also parties to the Council of Europe’s Conventions54 as well as to EU instruments such as its Charter of Fundamental Rights (incorporated into its 2004 Constitutional Treaty as a kind of Bill of Rights). With all these instruments jurisdiction is territorial rather than personal, meaning that all lawful inhabitants of a territory fall within their scope. The EU is committed to non-discriminatory rights protection,55 and the European Court of Justice has fleshed out social and economic rights and protections substantially. In respect of EU citizenship specifically, ‘third country nationals do in practice enjoy many of the rights which are the actual adjuncts of citizenship’.56 Access to ‘fundamental’ or ‘human’ rights, traditional civil liberties, and social and economic rights (as well as liability to taxation) have therefore either become or are well on the way to being entirely detached from the holding of citizenship status, and the nation-state is no longer – if it ever was – their unique respondent and guarantor. As to the accounts of MacIntyre, Walzer, and Miller, their central claim is that a set of historical empirical features of social and geographical location are the source of certain kinds of moral obligation, that these relationships and obligations are bounded, and that they are captured through the idea of ‘the nation’ or ‘the community’ (the term ‘community’ referring to something like a nation but based around religion or ethnicity or geographical locale smaller than a nationstate) and expressed through citizenship. This point about sources of obligation

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should be distinguished from a similar point about psychological motivation, with which it is often run together, which holds that people are not sufficiently motivated to comply with certain kinds of moral demands unless they recognise them as components of communal relationships arising out of historical empirical features of social and geographical location. If communitarians’ and nationalists’ propositions about these empirical features and relationships were judged to be implausible, that would provide reasons for questioning the normative inferences they make from them; and there are reasons for finding them unconvincing. In our contemporary setting of cultural pluralism, transnational mobility, and rising rates of migration, many persons are participating socially in one state as residents, students, or economic actors while retaining citizenship in another, sometimes by force of circumstances but frequently by choice. Family relationships, friendships, and occupational or value allegiances are increasingly as likely to cross territorial borders as be contained within them. Within territorial borders rising levels of freedom, education, sources of information, and affluence are allowing individuals not only greater pluralism in life opportunities and choices, but also more discrimination in forging loyalties and assessing obligatory claims laid on them. All this suggests that communal identities are as much created as discovered, as much chosen as given, and this is as true for those who opt for the most homogenizing or reactionary versions in the repertoire of the communal myth as it is for those who do not. It might be argued that thinkers in the vein of MacIntyre, Walzer, and Miller exaggerate the cohesiveness, the impermeability, the singularity, and the stability of the communal identities they endorse. Take ‘British’: a national identity constituted by hybridity, permeability, constant reinvention, and a predilection for living abroad, if ever there was one. When a British-born theorist assimilates citizenship to national or community identity, what is her or his local referent? British? Is that Scottish? English? Welsh? Irish? Romany? Channel Islander? Manx? How about British Muslim or British Afro-Caribbean or British National Party supporter or the ever-growing British diaspora – including the now considerable population of British passport-holders living for most of each year in Spain?57 The point, of course, is that even where one admits to a designated identity such as ‘British’ it will likely be complex, not without its own internal tensions, and combine just a few of the strands of ‘Britishness’ from the vast, variegated (and often conflicting) repertoire available. Further, it is doubtful that acknowledgement of shared communal identity by itself can either ground or motivate the adoption of rich and extensive duties in the way or to the degree that advocates of communal partiality, including republicans, hope. Some of our moral duties we hold whether we like it or not, we hold them simply by virtue of being human, and we owe them to all other humans – the duty not to murder, or the duty to rescue, for example. Let us call these involuntary duties ‘basic’. Some of our duties on the other hand are voluntarily assumed, because we have chosen to acquire them, or have voluntarily entered into roles that are in large part composed by them, and they are owed to specific

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persons, or kinds of persons – parental or professional obligations, for instance. Let us call these ‘special’ duties. If we are to be considered free, the latter must be more extensive than the former. It appears that communitarians, nationalists, and republicans wish to persuade us that our duties to fellow members of the community, nation, or republic are as extensive as acquired duties, but as involuntary as basic duties. As well as this, they assume that there are no other kinds of relationships between strangers that might motivate similarly extensive non-voluntary commitments, and that even extensive obligations we might voluntarily acquire as a result of de-territorialised or cross-territorial relationships will not discompose national or communal allegiances and their duties. Our national or communal identity, or our standing as citizen of the republic, is hegemonic and comprehensive, and this means our moral world is in one respect, at least, simple and binary: we have thick multifarious ethical duties to fellow-members of that collectivity whether we like it or not and whether we like them or not, and we have a limited number of basic duties to those outside it.58 It is not at all clear, however, why a person’s simple acknowledgement of, say, national identity, in itself implies obligation to others holding the same nationality that are different from or more considerable than the basic obligation that she has to any other persons of any other nationality anywhere else on the planet. She owes co-nationals basic duties, just as she owes everybody else in the world basic duties, involuntarily, but we need not accept that she owes them more than basic duties unless she has voluntarily accepted further obligation to them. She may well have partialities for specific bounded and particular groups and their members, and acquire special duties to them, but there is no reason why such partialities need observe the boundaries of nationality, religion, or ethne, and the obligations she has hold only insofar as and because she has freely adopted them for herself. All this is so even if in practice she carries out activities that appear to suggest she is honouring special duties to co-nationals – for instance, contributing funds through the tax system for public goods from which persons who are co-nationals happen to benefit, but from which people in the world generally happen not to. Participation in such practices need not imply partiality for conationals or co-citizens in general, since persons usually contribute to tax systems in whichever country they happen to live and work. There are good reasons for doing so, if one accepts that the basic duties owed by all persons to all persons would likely go unfulfilled within that territory without such support, and if one is willing to voluntarily accept some special obligation to improve the quality of social structures in the territory of one’s presence, because better social and political institutions make for more decent lives, whoever they belong to, all else being equal. Someone may be concerned for the quality of the public institutions they live under, irrespective of whether they are the institutions of their state of residence or their state of nationality or their state of citizenship – and these need not be the same. Claims that people have extensive ethical duties that they have not themselves consented to adopt, to large but exclusive groups of strangers, are pre-emptive strikes on their liberties to form their own choices of affiliation and

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exercise their own powers of moral discrimination in deciding which burdens to assume. A society nutritive of its citizens’ freedom would disdain such claims. We have seen that the reliance on the nation-state of Marshall’s conception of citizenship is now questionable. In so far as communitarian positions and republican positions also appeal to the nation-state, are they similarly vulnerable? What are we to make of the proposition that, if communities are constituted by or at least held together by shared meanings or intra-group sentiment or civic virtue, the nation-state is peculiarly apt in size and scale of political and territorial organisation for such phenomena? As is well known, ancient Greek thinkers believed that political community and citizenship were only possible in republics of around 5,000 or fewer men though, like the renaissance city states of nearly two millennia later holding similar notions of community and citizenship, their inability to combine into polities large enough to withstand external predators proved them wrong on this point – indeed, conclusively so. Miller, it must be said, makes no attempt to carry us back to these halcyon days of face-to-face politicking among the menfolk; indeed his work is concerned to show that strong bonds can and should hold together very large numbers of men and women who are mostly strangers to each other and who never will meet most others of their number face-to-face. But then, many people in villages are strangers to each other; so are most people in empires: the scale of political organisation can range from tiny to huge along a spectrum, and the fact of ‘strangerness’ helps little in answering the question of why, of all the possible points along that spectrum, the modern nation-state in particular should be considered to be the best or only location of primary and dominant political group identification. Supporters of state-based versions of citizenship object to theories of citizenship that seek to decouple it from the modern nation-state on the basis that the notion of citizenship requires a state – or at least something as near as makes no odds. We can unpack their objection as follows: the meaning, status, and practice of citizenship only make sense within states or state-like entities. Even were it accepted that people may have multiple citizenships held at different levels of political organization, for example at sub-national, national, and supranational levels, their citizenship at each level would only hold insofar as the sub- or supranational level of polity was state-like. While, therefore, it may be an empirical possibility for them to hold citizenships other than those of the nation-state, conceptually and theoretically those citizenships merely replicate, on a different scale, customary (nation-state) conceptions of state citizenship. For this reason notions of non-national citizenship are not really distinct from notions of national citizenship, and we are only able to believe polities that are not nation-states capable of having citizens at all because, in effect, we treat them ‘as if ’ they were such states. We retain state assumptions, but apply them to a new political setting. And if we did not consider such settings as state-like, then the idea of their having citizens would not be able to gain any purchase. Assessment of any non-national citizenship is thus entirely dependent on a prior yes/no conclusion about the classification of the polity the citizenship relates to: is it, or is it not, equivalent to a state?

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Now, this kind of scepticism does not deny the empirical possibility of citizenship of the EU. But it does deny that there is anything conceptually or theoretically distinctive about it. It charges that EU citizenship is just a kind of nation-state citizenship writ large, and only makes sense to the extent that we agree the EU to be state-like. I shall rebut this claim as the argument unfolds, but first, let us see what promise conceptions of global citizenship may hold.

Notes

1 Some sources on citizenship are Paul Barry Clarke, Deep Citizenship (London and Chicago, IL: Pluto Press, 1996); Ronald Beiner (ed.), Theorizing Citizenship (Albany, NY: State University of New York Press, 1995); Emilios Christodoulidis (ed.), Communitarianism and Citizenship (Aldershot and Vermont: Ashgate, 1998); Gershon A. Shafir (ed.), The Citizenship Debates: A Reader (Minneapolis and London: University of Minnesota Press, 1998); Bryan Turner and Peter Hamilton (eds), Citizenship: Critical Concepts, Vols 1 and 2 (London and New York: Routledge, 1994); Bart van Steenbergen (ed.), The Condition of Citizenship (London, Thousand Oaks, New Delhi: SAGE Publications, 1994); Will Kymlicka and Wayne Norman (eds), Citizenship in Diverse Societies (Oxford and New York: Oxford University Press, 2000); Ursula Vogel and Michael Moran (eds), The Frontiers of Citizenship (London: Macmillan, 1991); Derek Heater, Citizenship: the Civic Ideal in World History, Politics and Education (Harlow and New York: Longman Group, 1990); Derek Heater, World Citizenship: Cosmopolitan Thinking and Its Opponents (London and New York: Continuum, 2002); T. Alexander Aleinikoff and Douglas Klusmeyer (eds), Citizenship Today: Global Perspectives and Practices (Washington, DC: Carnegie Endowment for International Peace, 2001); T. Alexander Aleinikoff and Douglas Klusmeyer (eds), From Migrants to Citizens: Membership in a Changing World (Washington, DC: Carnegie Endowment for International Peace, 2000); Fred Twine, Citizenship and Social Rights: the Interdependence of Self and Society (London: SAGE Publications, 1994); Iris Marion Young, ‘Polity and Group Difference: A Critique of the Ideal of Universal Citizenship’, Ethics, 99:2 (1989); J. G. A. Pocock, ‘The Ideal of Citizenship Since Classical Times’, Queen’s Quarterly, 99:1 (1992); Peter Riesenberg, Citizenship in the Western Tradition: Plato to Rousseau (Chapel Hill and London: University of North Carolina Press, 1992); Martin Thom, Republics, Nations and Tribes (London: Verso, 1995); Max Weber, The City (ed. and trans. Don Martindale and Gertrud Neuwirth, New York: Free Press/London: Collier Macmillan, 1966); Engen F. Isin and Bryan S. Turner (eds), Handbook of Citizenship Studies (London, Thousand Oaks, California, and New Delhi: SAGE Publications, 2002). 2 H. L. A. Hart, The Concept of Law (Oxford: The Clarendon Press, 1961), pp. 155–9; John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1972), p. 5; Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1978). 3 It goes without saying (though I shall say it anyway) that labels such as ‘communitarian’, ‘nationalist’, ‘liberal’, ‘republican’ and so on should be treated with some caution, do not capture the full subtleties of individual authors’ positions, and may also not be self-descriptions that they would endorse – but these categories are useful to identify and capture broad tendencies of thought, which individual writers may then be used to illustrate, and that is how I am using them here. 4 Alasdair MacIntyre, ‘Is Patriotism a Virtue?’, in Beiner (ed.), Theorising Citizenship. 5 MacIntyre, ‘Is Patriotism a Virtue?’ p. 219. 6 MacIntyre, ‘Is Patriotism a Virtue?’ p. 224.

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7 Michael Walzer, ‘Citizenship’, in Terence Ball, James Farr and Russell L. Hanson (eds), Political Innovation and Conceptual Change (Cambridge: Cambridge University Press, 1989). 8 Michael Walzer, Spheres of Justice: A Defence of Pluralism and Equality (Oxford: Martin Robertson, 1983), p. 42. 9 Walzer, Spheres of Justice, p. 65. 10 Walzer, Spheres of Justice, pp. 33–4. 11 Walzer, Spheres of Justice, p. 39. 12 Walzer, Spheres of Justice, p. 31. 13 Walzer, Spheres of Justice, p. 15. 14 Walzer, Spheres of Justice, p. 40. 15 David Miller, ‘The Ethical Significance of Nationality’, Ethics, 98 (1988); David Miller, ‘The Nation-State: A Modest Defence’, in Brown (ed.), Political Restructuring in Europe; David Miller, On Nationality (Oxford: Clarendon Press, 1995); David Miller, Citizenship and National Identity (Cambridge, Oxford and Malden, MA: Polity Press in association with Blackwell Publishers, 2000); David Miller, ‘Bounded Citizenship’ in Hutchings and Dannreuther (eds), Cosmopolitan Citizenship. 16 Margaret Canovan, Nationhood and Political Theory (Aldershot: Edward Elgar, 1996). 17 Yael Tamir, Liberal Nationalism (Princeton, NJ: Princeton University Press, 1993). 18 Miller, Citizenship and National Identity, pp. 41–61. 19 Miller, Citizenship and National Identity pp. 32–4. The latter point is John Stuart Mill’s, whose Chapter 16 (‘Of Nationality, as connected with Representative Government’) in Considerations on Representative Government Miller cites approvingly. 20 Miller, Citizenship and National Identity, p. 27. 21 Miller, Citizenship and National Identity, p. 28. 22 Miller, Citizenship and National Identity, pp. 28–30. 23 Adrian Oldfield, Citizenship and Community: Civic Republicanism and the Modern World (London and New York: Routledge, 1990), p. 5. 24 Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958). 25 Richard Dagger, ‘Republican Citizenship’, in Engen F. Isin and Bryan S. Turner (eds), Handbook of Citizenship Studies (London, Thousand Oaks, California, New Delhi: SAGE Publications 2002), p. 155. 26 Oldfield, Citizenship and Community, p. 164. 27 For an early critique of this kind, see Karl Marx, ‘On the Jewish Question’, in R. C. Tucker (ed.), The Marx-Engels Reader (New York and London: W. W. Norton & Co, 2nd edn, 1972). 28 John Locke, Two Treatises of Government (ed. Peter Laslett, Cambridge: Cambridge University Press, 1988). 29 E.g. in John Stuart Mill, Considerations on Representative Government. 30 F. A. Hayek, Law, Legislation and Liberty, Vol. 3: The Political Order of a Free People (London and Henley: Routledge and Kegan Paul, 1979). 31 John Rawls, Political Liberalism (New York and Chichester: Columbia University Press, 1996). 32 Stephen Macedo, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism (Oxford and New York: Clarendon Press, 1991). 33 Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (Westport, CT: Greenwood Press, 1964, reprint of Yale University Press, 1919). 34 T. H. Marshall, ‘Citizenship and Social Class’, in four collections: Marshall, Citizenship and Social Class and Other Essays; T. H. Marshall, Sociology at the Crossroads and Other Essays (London: Heinemann, 1963); T. H. Marshall, Class, Citizenship and Social Development (Garden City, New York: Doubleday & Co, Inc., 1964); T. H. Marshall and Tom Bottomore, Citizenship and Social Class (London: Pluto Press, 1992). All citations following are to Marshall, Sociology at the Crossroads. 35 This schema, which has become something of a fetish for later commentators despite its relative unimportance for Marshall’s larger arguments, is of course his rough reading of English history. As is frequently pointed out it may not be a historically accurate depiction

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of the chronology of citizenship anywhere else. (Marshall himself never claimed it was.) Indeed, it may be a rather tendentious reading of English history, too. But that does not affect the substance of his argument, since, whatever the order in which the rights were granted, the general point that civil, political, and social rights had amalgamated to comprise citizenship across Western Europe (at least) by the third quarter of the twentieth century at the latest is hardly in doubt. Marshall, ‘Citizenship and Social Class’, p. 72. Marshall, ‘Citizenship and Social Class’, p. 125. Marshall, ‘Citizenship and Social Class’, p. 95. Marshall, ‘Citizenship and Social Class’, p. 100. Marshall, ‘Citizenship and Social Class’, p. 75, emphasis added. F. W. Maitland, The Constitutional History of England (Cambridge: Cambridge University Press, 1963), p. 105. Marshall, ‘Citizenship and Social Class’, pp. 74–5; Maitland, The Constitutional History of England; Sir Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society and its Relation to Modern Ideas (London: John Murray, 1906, 10th edn with introduction and notes by Sir Frederick Pollock). Christian Joppke, ‘How Immigration is Changing Citizenship: A Comparative View’, Ethnic and Racial Studies, 22:4 (1999); Christian Joppke (ed.), Challenge to the Nation-State: Immigration in Western Europe and the United States (Oxford: Oxford University Press, 1998); Aleinikoff and Klusmeyer (eds), From Migrants to Citizens; Aleinikoff and Klusmeyer (eds), Citizenship Today; Yasemin Nuhoglu Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago: University of Chicago Press, 1994); Thomas Risse, Stephen C. Ropp and Kathryn Sikkink (eds), The Power of Human Rights: International Norms and Domestic Change (Cambridge: Cambridge University Press, 1999). This is not to say, of course, that the rights are always enforced without discrimination between citizens and non-citizens as they ought to be or might be; but that is not the point at issue. No doubt in the days when these rights were still restricted to citizens they were often more honoured in the breach, too. The point is that citizenship status does not formally and ought not informally make a difference to their performance and implementation in practice. Twelve EC member state jurisdictions, the EU itself, USA, Canada, Australia, Russia, South Africa, the three Baltic States, Mexico, Israel, and Japan. Eleven EC jurisdictions are surveyed in J. P. Gardner (ed.), Hallmarks of Citizenship: A Green Paper (London: The Institute of Citizenship Studies and The British Institute of International and Comparative Law, 1994). In that volume see especially Christopher McCrudden, ‘Citizenship and Law: The Structure of the Green Paper Identifying the Hallmarks of Citizenship’, p. 24, and Shasa Behzadi, ‘The Boundaries of Citizenship’, pp. 26–44, introducing the comparative material reported in ‘Comparative Survey of the Hallmarks of Citizenship in Eleven EC Jurisdictions’, pp. 49–146. Britain is reported in J. P. Gardner (ed.), Citizenship: The White Paper (London: The Institute for Citizenship Studies and the British Institute of International and Comparative Law, 1998). The EU itself, and a number of non-EU states are reported in Aleinikoff and Klusmeyer (eds), From Migrants to Citizens (see particularly Miriam Feldblum, ‘Managing Membership: New Trends in Citizenship and Nationality Policy’) and themes emerging from that research project are further explored in Aleinikoff and Klusmeyer (eds), Citizenship Today. See also Thomas Faist, ‘Boundaries of Welfare States: Immigrants and Social Rights on the National and Supranational Level’, in Robert Miles and Dieter Thränhardt (eds), Migration and European Integration: The Dynamics of Inclusion and Exclusion (London: Pinter Publishers, 1995), p. 182. Miriam Feldblum, ‘Managing Membership: New Trends in Citizenship and Nationality Policy’, in T. Alexander Aleinikoff and Douglas Klusmeyer (eds), From Migrants to Citizens: Membership in a Changing World (Washington DC: Carnegie Endowment for International Peace, 2000), p. 488. ^

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48 See Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca and London: Cornell University Press, 1989); Richard A. Falk, Human Rights Horizons: The Pursuit of Justice in a Globalizing World (New York and London: Routledge, 2000); David P. Forsythe, Human Rights in International Relations (Cambridge: Cambridge University Press, 2000); Adamantia Pollis and Peter Schwab (eds), Human Rights: New Perspectives, New Realities (Boulder, CO and London: Lynne Rienner Publishers, 2000). 49 The tables of fundamental principles and rights generally included in the constitutions of the fifteen member states of the EU drawn up for the Reflection Group in the EU are most illuminating here. Annex II contains a table illustrating the methods of recognising certain rights across the member states; by and large the language uses formulations such as ‘nobody’, ‘no-one’, ‘all persons’ as much as it refers to ‘citizens’ or, for example, ‘Belgians’. See Council of the European Union, General Secretariat of the Council, Private Office, ‘Note for the Reflection Group, Subject: Principles and rights included in the constitutions of the Member States of the European Union’, SN 512/95 (REFLEX 13), Brussels, 6 October 1995 (23.10). 50 Stephen Hall, ‘Fundamental Rights, National Sovereignty and Europe’s New Citizens’, in Linda Hancock and Carolyn O’Brien (eds), Rewriting Rights in Europe (Aldershot and Burlington: Ashgate, 2000), p. 192. 51 David Kinley, ‘Legal Rights and State Responsibilities under the ECHR’ in Hancock and O’Brien, Rewriting Rights in Europe; David Harris, ‘Lessons From the Reporting System of the European Social Charter’, in Philip Alston and James Crawford (eds), The Future of UN Human Rights Treaty Monitoring (Cambridge: Cambridge University Press, 2000). 52 George Close, ‘Definitions of Citizenship’, in Gardner, Hallmarks of Citizenship, p. 13. 53 J. P. Gardner, ‘Citizenship, not Human Rights’, in Gardner, Hallmarks of Citizenship, p. 192. 54 Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR), the Convention on the Participation of Foreigners in Public Life at Local Level (1992), and the European Social Charter (1961). 55 For example Title 1, Article F, paragraph 2 of the Treaty on European Union provides: ‘The Union shall respect fundamental rights, as guaranteed by the [European Convention on Human Rights] … and as they result from the constitutional traditions common to the Member States, as general principles of Community law.’ 56 Jo Shaw, ‘Citizenship of the Union: Towards Post-National Membership?’, Harvard Jean Monnet Working Paper 6/97, at www.jeanmonnetprogram.org/papers/97/97-06, last accessed 30 June 2002, p. 19. 57 Indeed the evidence is that the outflow of UK citizens to all other EU states combined is considerably greater than the inflow to the UK of citizens from all other EU states combined. In 2002, for example, ‘125,000 people migrated from the UK to the European Union (EU), compared with 89,000 who migrated from the EU to the UK. This gives a net outflow of 36,000 to the EU.’ Statistics on immigration and migration are at United Kingdom National Statistics Online, www.statistics.gov.uk/cci/nugget.asp?id=766, last accessed 22 April 2005. 58 For this line of argument, see for example John Kekes, ‘Morality and Impartiality’, American Philosophical Quarterly, 18:4 (1981); Andrew Oldenquist ‘Loyalties’, The Journal of Philosophy, 79:4 (1982).

2 Citizenship II: status, identity, and role

Cosmopolitanism and after Because the standard ‘nation-state’ accounts of citizenship are increasingly being found wanting, interest in the idea of global citizenship has, since the early 1990s, resurged. As Nussbaum reminds us, the essence of this idea is not new but revisits the ancient Stoic doctrine of cosmopolitanism – ‘cosmopolite’ meaning, precisely, a citizen of the world. In advocating cosmopolitanism as the remedy for narrowness of vision Nussbaum describes such a citizen as a person dwelling both in the (local) community of birth and in the (universal) community of human argument and aspiration, defining himself not by local origins and group memberships, but by universal aspirations and concerns, and giving his ‘first allegiance to no mere form of government, no temporal power, but to the moral community made up by the humanity of all human beings’1 and to ‘what is morally good’.2 An alternative version of cosmopolitan citizenship is that supplied by Linklater. Taking inspiration from Habermas rather than Diogenes, Linklater agrees with Nussbaum that we have moral duties to those outside our nation-state, but argues that acknowledging those burdens is, in itself, insufficient for justice. As well as compassion towards outsiders, cosmopolitan citizenship needs ‘efforts to create universal frameworks of communication’.3 Linklater calls for a new dialogic form of political community, in which wide and diverse communities of discourse are developed into a worldwide public sphere that will allow opportunities of participation and contestation in global governance to the vulnerable, the dispossessed, and the excluded.4 Andrew Dobson challenges both these approaches to a global citizenship, advancing what he calls ‘post-cosmopolitan citizenship’. 5 In response to Linklater, Dobson asks what inclusive dialogue might tell us that we do not already know – the problem of global injustice is surely not chiefly one of ignorance about its existence, and ‘if we know harm is being, and has been, done,

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then cosmopolitanism’s “universal communication community” is de trop at best, and an indulgence at worst’.6 To cosmopolitans of Nussbaum’s ilk, Dobson objects that while a thin account of common humanity may generate principles of distributive justice, it does not provide politically compelling reasons for action.7 To get to those, he believes, we need to ground obligation in actual material harm8 through an account of justice tying causal responsibility for effects to duties of rectification,9 and an account of citizenship as the holding of such duties. Locating post-cosmopolitan citizenship in the context of globalisation, Dobson points to the asymmetric nature of the effects of action – harms are unequally applied. Some peoples, or societies, or regions, suffer the effects of the actions of other peoples, or societies, or regions. Not to put too fine a point on it, the North globalises and the South endures the results. Because harms are asymmetrically caused, the responding obligations are not reciprocal. This delivers ‘the possibility of unreciprocated and unilateral citizenship obligations’ which are, Dobson asserts, ‘definitive of “post-cosmopolitan” citizenship’.10 This theory of citizenship is a pertinent rejoinder to those cosmopolitans seeking to pull a notion of citizenship seamlessly out of an expanded public sphere or an expanded scope of ethical concern, and in bringing fresh considerations to the debate does much to further it. Indeed, I am bound to think so, since three of its stresses in particular have strong counterparts in my conception of supranational citizenship: asymmetric power, interactive effects, and responsibilities. Nevertheless, all three of these versions of global citizenship – ethical, dialogic, and post-cosmopolitan – are unsatisfactory. First, like the accounts of nation-state citizenship surveyed in the last chapter, current cosmopolitan approaches construe citizenship as a zone of privilege attendant on membership, differing only in seeking to extend membership and the goods that follow from it beyond the boundaries of the nation-state to the inhabitants of the planet as a whole. For Nussbaum the means for doing so is an enlarged sympathy, whereas for Linklater it is an enlarged conversation. Though the scope of moral concern is expanded to embrace humanity in its entirety, the conceptualisation of citizenship continues to make it the boundary marker for the scope of moral concern: conversely, a global scope of moral concern, it appears, is tantamount to a global citizenship. Dobson, on the other hand, avoids making citizenship the status of privilege but only at the cost of making it the status of culpability, because citizenship is constituted by unreciprocated obligations and such obligations arise from causal responsibility for the asymmetric commission of harm. Worse still, his theory has the consequence that it restricts citizenship to the powerful and the affluent. Since only those causing harm are citizens, the implication is that we in the globalising North are post-cosmopolitan citizens but those in the globalised South cannot be – a perverse position in the light of his larger concerns, perhaps, but one his conception appears to commit him to. Secondly, how, specifically, might citizens bring to pass their justice-respecting intentions? Cosmopolitanism and post-cosmopolitanism help us to understand what sorts of decisions need to be made but do not tell us through which bodies

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and institutions citizens will ensure that they are in fact made, implemented, and enforced where necessary. What mechanisms ought such institutions to employ in fulfilling these tasks? From whom will they extract the resources to do so? How might they be made accountable for decisions and actions, and to whom ought they be accountable? Who will, in fact, hold them to account? Nussbaum, revealingly, finds Himmelfarb’s objection that citizenship detached from effective and authoritative legal and administrative institutions can mean little,11 ‘odd’.12 In response, she cites maxims of conduct in traditions of political thinking that look back to Stoic norms. That still does not tell us what or who it is whose conduct ought to conform to these maxims, and how we might ensure that it does. She argues, further, that those who are genuinely committed to cosmopolitanism can find many practical opportunities for world citizenship despite the absence of a world state, such as supporting or joining nongovernmental organisations and participating in deliberations on global issues within the public sphere.13 Linklater and Dobson too see global civil society as the realm in which citizenship has its home.14 But regardless of how congenial we may find this or that nongovernmental organisation, or the presence of public spheres and civil societies in general, they cannot substitute for properly-constituted political authorities because they are a fundamentally different category of thing, with different functions and justifications; and our roles as supporters, activists, and participants within them, however impassioned or admirable, are not exercises of citizenship. Civil society is, after all, named civil society precisely to distinguish it from political society. It is almost as if, having repudiated the idea that citizenship needs the nationstate, and balking at the prospect of (or perhaps the lack of prospects for) a world state, post-cosmopolitan and cosmopolitan citizenship are in flight from political institutionalisation as such. This puts them not so much beyond the state as simply outside the realm of effective politics altogether. This outcome is surely unacceptable for both a conception of citizenship and for a conception of justice. A practical political theory cannot do without a theoretical postulate of institutional boundaries, since the effective delivery of political input (‘voice’, information, taxation, etc) and political output (laws, policies, allocations of tasks and resources) both presuppose, theoretically, and need, empirically, jurisdiction, and jurisdiction cannot but specify scope. It is not that citizenship needs particular kinds of territorial boundaries, or a boundary fixed here rather than there: merely that bounded scopes of application (even those that happen to be Earth-sized) need to be theoretically specified, as such. This is something many cosmopolitans seem loath to admit, though I do not see that doing so weakens in any way the arguments for a universal morality, including a morality positing a universal right to participate in the major decisions affecting one’s life. On the contrary, I shall argue throughout this book that for such a universal morality bounded political institutions are necessary, theoretically at least, since otherwise there could be no conception of citizenship to act as its conduit. (And this argument does not in itself settle the scope or scale of such boundaries; cosmopolitans could accept this and still, if they were minded to, argue that the boundary of jurisdiction of a set of

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political institutions and, therefore, of citizenship, is or ought to be that of planet Earth.) The third problem is closely connected to the second. The absence of political institutions allows no space for the possibility that citizenship might be a specific kind of role, one located in an institutional context. Instead, cosmopolitan citizenship is seen as a generalised disposition to benevolence exercised within discursive civil communities: a mode of sociability. This does not distinguish the person qua citizen from the person simpliciter or the person in her or his other roles. As Dobson argues, it also conflates morality with politics and makes it difficult to see why cosmopolitan citizenship is a project of citizenship15 rather than a project around a universal ethic. He is right to insist on the distinction between morality and politics, but unfortunately his own characterisation of it is eccentric. He sees moral obligations as ‘those it would be simply desirable to fulfil, in some broadly virtuous, benevolent, and supererogatory sense’ whereas political obligations, by contrast, he envisages as the contents of justice, not charity, and so those are duties that ‘it would be wrong not to fulfil’.16 Our status as moral agents, then, is discretionary, whereas for those of us burdened with it, our status as citizens is imperative. It could be argued that while Nussbaum and Linklater collapse politics into ethics, Dobson in the end subsumes virtue under a morality that he mistakes for politics.17 We are left with no distinctively political conception of citizenship beyond the state.

Critique so far Two kinds of status are generally seen as constituting citizenship – that of participant or member, and that of the bearer of exclusive rights. To have the effective status of citizen is deemed to be a necessary condition – and in some accounts, a sufficient one – to be a full member of the larger society, and it is also held to be a necessary condition – and again, perhaps a sufficient one – to be a participant in the common life of the society. As we have seen, citizenship tends to be conflated with belonging to a particular community or nation, or with society in general, or with global humanity. In lay discourse and in academic discourse the term ‘citizen’ functions as little more than a synonym for ‘member of society’ or ‘co-national’ or ‘fellow-human’, as if it were just a shorter way of saying the same thing or was used to add a bit of stylistic variation. Sociological accounts (such as Marshall’s) often seem to suggest equal societal membership is impossible in the absence of effective citizenship. Nationalist and communitarian accounts also see citizenship as the status of belonging, but here the most important feature of group bonding is not economic equality but cultural similarity. Liberal and republican accounts stress participation over belonging, though they each understand it differently: for liberals, what matters most are the underlying conditions for individuals’ free participation in both common and personal projects, so citizenship is the status endowing natural persons with a fuller range of individual rights; while for republicans, to act with others in common

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political tasks and projects is a (perhaps large) part of what it takes to be fully human, and citizenship is the status signifying a fully developed personhood. Although theories of global citizenship are at pains to reject the particularism in such thinking, they nonetheless incorporate many of its basic assumptions. In all approaches, citizenship is seen as belonging, and participation is understood both as inclusion and as active commitment to the endeavours of the community – local, national, or global – to which one belongs. Even where it is analytically separated from membership of a society or nation or humanity more generally, citizenship is still seen as expressive of the selfdefinition of an already defined group, and epiphenomenal to it. This is clearest in particularist versions of citizenship. For example, MacIntyre,18 Walzer,19 and Sandel20 take it as read that political community just is and ought to be the public expression of a common life of shared meanings, traditions and interpretations: a common moral order of cognition and expression. Rawls explicitly builds the content of his (political) conception of justice with the intention of approximating ‘our considered convictions of justice’,21 realisable from within ‘a certain political tradition’.22 The intuition at work in these non-global accounts is of an alreadyexisting people constituted prior to politics that sets up the apparatus of government and the status of citizenship as a way of expressing itself as a people distinct from other peoples, and of carrying out the functions of self-administration. Hence, all members of this pre-constituted people are its citizens, and all the citizens are members of the people (there is a one-to-one correspondence); hence, citizenship is the idea through which members of this group acknowledge and affirm each other as equal members of the group; and hence, citizenship is a kind of group self-definition or identity. Besides their socio-psychological satisfactions, we ought to remember that these conflations of statuses and identities and ethics involve additional stakes because they are widely (though, as we saw in the last chapter, erroneously) seen as conferring entitlement to public goods (especially but not solely welfare goods) and exclusive or privileged access to them.

Deconstructing citizenship Part of my critique so far is that national and non-national accounts of citizenship do not distinguish adequately between sociality, morality, and politics, and also conflate the modes of being categorially associated with these domains. So before progressing further, let us tease apart some categories. At the most fundamental level, we are all individual and distinct human entities, or ‘natural persons’. (‘Artificial’ or ‘corporate’ persons are organised bodies such as firms or states having legal personality.) Natural personhood asserts one’s basic status as a sentient being regarded prior to attributions of age, gender, nationality, colour, ethnicity, religion, sexual orientation, class, caste, occupational description etc – that is, as one regarded as a human being simpliciter. As sentient beings (persons) we each experience our personhood and the world from a unique internal standpoint, we look out from within, and this experiencing and reflexively-conscious

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inner person is what we think of as our ‘self ’. The self of each person absorbs experience, perceives, feels, and contemplates. Each self also decides, wills, and acts in the world, therefore having causal effect, and so is also an ‘agent’ having agency, the property of being able to author, or originate, acts with causal effect in the world. All selves and agents are persons and, for the purposes of this discussion, all persons are selves and agents.23 Our social worlds are very complex, and we each stand in relationships with numerous – indeed, multitudes of – other people, known and unknown to us, near and distant. As the social world becomes more complex so it becomes more differentiated also: this insight has been central to sociology since the work of Durkheim and Weber. One aspect of this phenomenon is that persons inhabit multiple roles and statuses and identities. As well as being an agent and a self, a person may also be a cyclist, a taxpayer, a hospital patient, a newspaper-reader, a sales manager, a sibling, a friend, a neighbour, a saxophonist, an atheist, heterosexual, middle-aged, black, a conservative, a wine lover – and so on – all at the same time. The term ‘identity’, as used in the debates we are concerned with, is psychological,24 meaning self-definition (not metaphysical, denoting unity over time, as in philosophy). We think of our ‘sense of identity’ as capturing a description of who we are, as locating our sense of self within a social fabric. An identity is a kind of self-definition. ‘Status’ designates a position in relation to a system or pattern of positions,25 and therefore indicates standing in relation to others. It is thus a relational and static kind of label indicating where something fits in relation to other (similar) things. A ‘role’, in contrast to a status, is the set of activities that the incumbent of a status characteristically undertakes in order to fulfil the obligations and norm expectations attached to it, and these activities together with the norms and expectations regulating them constitute both the role and the status. Social tasks are distributed through roles, and in taking on a role a person enters into the array of activities, rights and obligations that comprise it. We occupy a role by acting in accordance with it, and the unit of role analysis is ‘not the individual but the individual enacting his bundle of obligatory activity’.26 Role and status therefore capture two different aspects of a mode of being, but (like the difference between a concept and a conception discussed in Chapter 1) whereas status carves out a conceptual space, it is role that fills it with meaning and content. To say Anna has the status of professor and Peter has the status of student is to distinguish and place the standing of each of them relative to each other, and because we know that the educational system is a system in which professors rank higher educationally than students, then we know that Anna’s educational standing is higher than Peter’s educational standing. But status in itself tells us no more than that. In order to understand what ‘professor’ and ‘student’ mean – in other words, to grasp why these statuses exist at all – we would have to examine what we expect professors and students to do when they are acting ‘in role’, when the persons involved are acting as, precisely, professors and students (as opposed to acting in other roles these persons may also happen to occupy), and knowing what

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they do as professors and students involves comprehending their actions within a whole system of action, including its significance and valorisation. Roles exist apart from the particular natural persons occupying them at any particular moment, and as natural persons each of us occupies a number of social roles (professional, familial, etc) that, typically, we move in and out of through the day much as we move in and out of buildings. (Unlike movement between buildings, however, as we move between roles we do not entirely exit one role as we move into another; rather, a role recedes to the background as we foreground another.) Though individuals inhabit many roles, and some roles may have deep importance to the way they see themselves and the way their life goes, these roles are analytically separable from individuals’ statuses both as natural persons and as moral agents. (That is not to say that the person inhabiting the role always finds it psychologically easy or rewarding to make the separation, however.) Role-occupation and moral personhood are analytically distinct, but they are normatively and theoretically linked. Roles have characteristic and specific functions, and rolerelated expectations attach to them. Some of these expectations are normative and, of these, some can be described as rights and duties. While acting in role, persons are expected to fulfil role functions (parents care for children, athletes compete, dentists extract teeth) and fulfil them in the rights kinds of ways – that is, according to the particular restraints of legality, morality, and conventionality pertinent to the role. These are of differing degrees of formality and are expressed as codes or rules. In summary, status is a mode of social being, and is static, connoting position or standing. Role, however, is dynamic, having to do with action rather than being: one acts in ways conformable with the expectations attaching to the role. Status tells us of an x where it stands in relation to others, while role tells us what x does in relation to what others do. Roles are rule-governed and guide behaviour. Although status and role often converge we can still distinguish them, as when we might say of an erring spouse or absentee political representative that he or she had the status of husband or wife or MEP but didn’t act (in accordance with) the role. Roles, statuses, and identities are not the same things, but they can reinforce or undermine each other, and can help to create and destroy each other. We can enjoy the status but not play the role, and vice-versa. Our taking on a particular role may lead us (perhaps gradually) to shift identity; conversely shifts in identity may make it ever more difficult for us to occupy a particular role if, for example, the role becomes increasingly dissonant with other aspects of who we take ourselves to be. Though to some extent we each have multiple identities, we generally each think of our own ‘self ’ as a unified, singular identity that is the composite of all our various identities, roles, statuses, and selves. This is why although each of us is multifaceted the multiple facets need to cohere together reasonably well. Too much inconsistency leads to distress, and perhaps emotional and social dysfunction. This encompassing self-definition, which we think of as our personal identity (in the singular), is not essential and fixed, but will be instead (to contingently variable

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extents) relational, situational, mutable, malleable, and pluralistic. However, except in pathological cases, personal identities are not unstable, fragmented, or chaotic. On the contrary, one’s identity is defined by the relatively stable, orderly and enduring core formed by the mutual check of these forces. The internal complexity of that core provides levers with which the self can distance itself from, critically appraise, and attempt to revise or consolidate components of its personal identity. Though identities are fluid, they are sticky, and some are more viscous than others. As should be apparent, roles are all social by definition: we can extend the Wittgensteinian axiom that there can be no private language to roles and statuses too, and for similar reasons. Our self-definitions (‘identities’) too will refer to social groupings. Some of these might be fairly amorphous, and some very specific – one person might define himself as a lover of football, while another will define himself as a diehard fan of Bayern München. Because the discrete groupings that we define ourselves in relation to have interests or views or projects in common, many of our purposes, commitments and attachments will also be collective in nature. And some of these purposes, commitments and attachments will be such that persons holding them in common recognise each other as those wanting or needing to act together to fulfil them through political means. We may be drivers or pensioners or speakers of a minority language; and then fuel prices rise, or pensions are cut, or our minority-language news channel closes down, and so we mobilise as a group to put our case for lower prices, higher pensions, continued broadcasting, to the population as a whole, through the institutions we have all evolved for this kind of public debate and decision-making. In this way, our membership of a particular social group comes to have a political dimension, and this becomes part of our political identity. Political identity is the site where varied social identities are drawn together with a political purpose. Political identity should be distinguished from other kinds of identities, especially other social identities. In particular it is important not to fall into the trap of thinking that political identity is just another way of referring to allegiance to a particular nation. Political identity cannot be synonymous with nationality, since individuals will have many group memberships or commitments that are politically consequential. A person’s multiple memberships are very unlikely to be congruent with political boundaries, and will span both very small and very large intervals – indeed they will typically range from the parochial to the global. Also, we should not assume we know in advance how individuals will order their several political identities: for example, someone’s identity as an environmentalist may be more politically charged for them than the fact that they were born in country x or brought up in country y. Indeed, it may be that national identity is barely politically motivating at all for some individuals – perhaps because it hardly figures much in their self-definition, or it features but in ways that are not straightforwardly political. National identity is not only, or perhaps not even primarily, a political phenomenon. In the UK, for instance, national identity is at least as concentrated on landscape and cityscape, social and cultural organizations, certain

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forms and uses of humour and wit, and everyday taken-for-granted practices, as it is in anything remotely political; British political identity is merely one small part of, or perhaps even a small area of overlap with, a broader cultural identity. And even in this apolitical sense ‘national identity’ is a misnomer, since its contents are deeply contested amongst those claiming to hold it, and it is itself in constant evolution. To that extent, the idea of national identity is no more than the site in which disputants attempt to absolutise the image of national selfdefinition they prefer to be associated with. Questions of composition aside, political identity is the intersection of the political dimensions of the varied social identities held by any one person. It is where they all come together to form a certain kind of publicly-oriented persona, one that is internalised by the self as well as externalised to the public at large. It is not constant, because not only do our social roles and so on change over time, but they wax and wane in the degree to which they are politically infused or activated. And some of these elements may be very enduring while some may be relatively ephemeral. Some may be profound and others may be shallow. In conclusion, political identity is composed out of those elements of our various roles that we see as politically salient at any one time together with (usually) an awareness of ourselves as occupiers of the role of citizen. I began by rejecting the view of citizenship as a kind of identity. If citizenship is merely or principally about self-definition it is difficult to see what the concept adds to the conceptual repertoire. We can say all we need to say about who we are without it. Citizenship is indeed a status, and as such it distinguishes citizens from non-citizens. Knowing that, however, doesn’t get us very far at all; it doesn’t tell us what citizenship is for, beyond marking a boundary. To get at the substance of citizenship we need to consider it as a role comprising activities, tasks, purposes, dispositions, rights, and duties. That will tell us what the point of it is, and what it is that citizens actually do or should do.

Institutional roles Citizenship tends to be treated as a mode of being that can be explored and described in abstraction from a comprehensive political and institutional context, as if it could be usefully grasped independently of the whole of which it forms a part. Supranational citizenship, in opposition, aims to situate a conception of citizenship firmly and explicitly in context by conceiving it not as a status abstracted from political structure, but as a nodal relationship within a complex set of institutions comprising organisational bodies, roles and rules. Citizenship is not categorical, but relational. It is important to grasp the significance of what I will be arguing, because there is a natural sense in which we could understand the term ‘institutional role’ as denoting a role that is attached to an institution. In this usage, a role would be an institutional role if it were, and by dint of being, a role that happened to be performed within an institution – so, for example, it could be said that the role of

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hospital porter is an institutional role, because hospital porters are porters who work within the institutional setting of a hospital. Certainly, citizenship is an institutional role in this meaning of the term. But I will be claiming something much more consequential than that, because there is also another, less trivial, way of using ‘institutional role’, as a term of art. In this usage, institutional roles specify the logical and conceptual relationships between institutions and what kinds of actions logically are required by them; in this way they not merely express these relationships but actually constitute them as relationships.27 Citizenship is of this class. Now, citizenship’s connection to political organisation is usually treated as contingent and secondary (similar to the connection between a hospital porter and a hospital), as if the notion of citizenship might still have meaning and conceptual function in its absence. My contention will be that, on the contrary, the essence of citizenship is to be found in the role it plays within and in relation to a comprehensive context of political institutionalisation. It follows that in the absence of certain complexes of political institutional relationships there can be no (non-vacuous) notion of citizenship. Within the theoretical schema to be outlined from Chapter 5 on, citizenship is an institutional role, not a token of status or indicator of membership or participation. Using ideas like membership and belonging we can elucidate something about the affective conditions for the occupation and sustainability of the role of citizen (that is, we can explore what might buttress persons’ motivations to act in their citizenly role, and do so later on in Part III) but these do not adequately characterise the role itself.

Back to the normative Let us draw together the analytical, empirical, and normative discussions. We are now in a position to see the reasons why we should no longer continue with conceptions of citizenship that read it as membership of the societal or national or indeed global club that gives exclusive access to a range of ‘club goods’. So tightly are these ideas of access to social goods and citizenship bound together, that such goods are often described as or referred to as ‘citizens’ rights’, and access failures are interpreted as harms to or denials of citizenship. Empirical research, as presented in Chapter 1, shows that access to fundamental or human rights, traditional civil liberties, and social and economic rights, as well as liability to taxation, have either become or are well on the way to being entirely detached from the holding of citizenship status. This is partly because such rights have become regarded as universal rights, and partly because noncitizens have increasingly come to be seen as having non-casual ties with and stakes in host societies. Such rights are no longer able to be restricted to citizenries but must be made available to everyone. Since they are ever less positively attached to citizenship, we should no longer continue with a concept of citizenship built on assumptions these rights constitute citizenship, and vice-versa. The argument that social rights are a necessary condition for genuine and meaningful consent to social and political arrangements’28 and, as such, underpin citizenship, is not

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disputed. But a necessary condition for something is not the same as an attribute of it or a constitutive feature of it. Alongside the widening of the qualifying conditions for such rights, analysts of human rights and analysts of citizenship converge in their assessment that the locus of rights-protection is shifting from the nation state to the transnational arena. From these phenomena, a number of commentators have drawn the conclusion not that we need to detach the conception of citizenship from the status of wide rights-holding, but rather that the site of citizenship is shifting. (In effect, this makes the same move as is made by the Marshall-inspired notions discussed above – assuming that if one has rights, that must mean one is thereby a citizen of whatever is granting or guaranteeing them – but pitches the locus upwards from the national to the international level of political organisation.) This claim is difficult to allow. If the fact that rights are agreed and proclaimed in international forums were decisive for citizenship, then surely everybody would be considered a citizen of the UN. We should also detach citizenship from the idea of social membership or participation. The deconstructive analysis undertaken above should have helped to conceptually unravel our social identities (statuses, roles, and relationships) from our political identities (statuses, roles, and relationships). These are becoming disaggregated in real life, too. As Jacobson persuasively argues, the ‘growing phenomenon of diasporas, transnational communities, and multiple memberships’29 has begun to erode that linkage. We are not as sure as we were that we even know what membership means. With growing transnationalism, many persons are participating socially in one state while retaining citizenship in another – by choice. In her study of Turkish communities in Germany (titled, significantly, ‘Limits to Citizenship’) Soysal demonstrated that nation-state conceptions of citizenship are no longer adequate for understanding the dynamics of social membership.30 Neither acceptance into local communities and social networks nor access to social rights by persons not holding the formal status of citizenship can turn them into citizens. What both will do or help to do is to turn them into members of the society. Similarly, refusing someone access to rights or failing to include them in social activities is not an assault on or a denial of their citizenship, though it may well be an infringement of their rights and dignity as persons and as members of the society. Neither social inclusion nor access to social rights constitutes citizenship, and we should not continue to theorise as if they did. The case for these decouplings is normative as well as conceptual and empirical. At issue here is not the desirability or otherwise of extending concern, rights, or discursive opportunity. On the contrary, the arguments favouring a wide distribution of social as well as civil rights on grounds of individual justice (or plain social prudence) are persuasive. Indeed, they are much more persuasive than the arguments proceeding from citizenship. The problem is that while such goods are tied to citizenship, they are not argued for on other grounds, which may be more defensible and more compelling; and while they are seen as tokens of citizenship, citizenship acts to choke off their distribution. Such a restriction is difficult to

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sustain, normatively. In prosperous developed countries that attract poorer immigrants the argument that basic civil, political, socio-economic, or environmental rights ought to be reserved to citizens, as privileges of citizenship and markers of communal acceptance, is unappetising. These are societal inequalities of a kind that are perhaps especially hard to defend where immigrants who have not naturalised contribute to the tax base and thereby help to pay for the very same services that are withheld from them by citizens. In such circumstances the disadvantaged are transferring resources to the advantaged. At an everyday practical level, the conflation of social membership with citizenship in the contemporary world carries normative risks. Where our social categories lack differentiation, we will be insufficiently attentive to the nuances of injustice. Persons may have citizenship status but be socially excluded: they are members of the polity, but not members of the society. Persons may be fully accepted and included into society, but lack citizenship status. Persons may have citizenship status and be accepted in the community, but be unable to access rights. Only by keeping all these elements analytically separate will we be in a position to see where potential and actual deficiencies may lie. And only by doing so could the fact and the nature of any injustice present be established.

Conclusion Supranational citizenship rejects a number of emphases and claims found within current versions of citizenship. Some of the empirical propositions on which they rely or the empirical claims they make are unreliable, and some of the normative inferences they draw from them unwarranted. Standard accounts of citizenship provide too determinate an account of political organisation (and then fail to demonstrate that it, the nation-state, is the singular appropriate political unit to which citizenship can or ought refer), while global approaches avoid the question of political organisation almost entirely. Further, existing conceptions fail to differentiate citizenship adequately from other roles and statuses, and as a result they fail to grasp the intrinsically institutional character of citizenship and its distinctive moral purpose. Their accounts of rights and duties are unsatisfactory, mostly because of the way in which these are tied to membership as the ground of entitlement. One task of this chapter has been deconstructive – to argue for the analytical separation of citizenship from other social modes of being, as a specific role to be located amongst other social roles. However, abstracting citizenship in this way will not give us the full story. While we can and should separate, conceptually and theoretically speaking, citizens from natural persons and from occupants of other social roles, practically and empirically they come together in the form of flesh and blood human beings, who live together in relations of interdependence. A well-functioning polity needs a high degree of congruence ‘between the space in which regulations are valid and the space in which social interactions are dense’.31 Though citizenship is not expressive of or epiphenomenal to sociality, nonetheless

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sociality, jurisdiction, and citizenship are linked. Part III will return to this topic, and reconstruct these links through a reformulated account of social relations that might underlie a supranational citizenship.

Notes 1 Martha C. Nussbaum, ‘Patriotism and Cosmopolitanism’, Martha C. Nussbaum with respondents, ed. Joshua Cohen, For Love of Country: Debating the Limits of Patriotism (Boston, MA: Beacon Press 1996), p. 7. 2 Nussbaum, ‘Patriotism and Cosmopolitanism’, p. 5. 3 Andrew Linklater, ‘Cosmopolitan Citizenship’, in Kimberley Hutchings and Roland Dannreuther (eds), Cosmopolitan Citizenship (Basingstoke and New York: Macmillan Press Ltd and St Martin’s Press, 1999), p. 37. 4 Linklater, ‘Cosmopolitan Citizenship’, in Hutchings and Dannreuther (eds), Cosmopolitan Citizenship; Linklater, ‘Cosmopolitan Citizenship’, in Engen F. Isin and Bryan S. Turner (eds), Handbook of Citizenship Studies (London, Thousand Oaks, California, New Delhi: SAGE Publications, 2002). 5 Andrew Dobson, Citizenship and the Environment (Oxford and New York: Oxford University Press, 2003). (Andrew Dobson and myself are not related.) 6 Dobson, Citizenship and the Environment, p. 26. 7 Dobson, Citizenship and the Environment, p. 21. 8 Dobson, Citizenship and the Environment, pp. 30–1, p. 81. 9 Dobson, Citizenship and the Environment, pp. 48–9. 10 Dobson, Citizenship and the Environment, p. 47, italics in original. 11 Gertrude Himmelfarb, ‘The Illusions of Cosmopolitanism’, in Nussbaum and Cohen (eds), For Love of Country. Admittedly Himmelfarb is not merely claiming that citizenship needs political institutions, but also claiming that they must be the institutions of a state. While Nussbaum rejects the second part of the claim, she seems not to register the significance of the first. 12 Martha C. Nussbaum, ‘Reply’, in Nussbaum and Cohen, For Love of Country, p. 133. 13 Nussbaum, ‘Reply’, in Nussbaum and Cohen, For Love of Country, pp. 134–5. 14 Linklater, ‘Cosmopolitan Citizenship’, in Isin and Turner (eds), Handbook of Citizenship Studies, p. 330; Dobson, Citizenship and the Environment, p. 75. 15 Dobson, Citizenship and the Environment, pp. 26–7. 16 Dobson, Citizenship and the Environment, pp. 48–9. 17 See also Tim Hayward, ‘Ecological Citizenship: Justice, Rights, and the Virtue of Resourcefulness’, in Environmental Politics 15:3 (2006), and Dobson’s reply in the same issue. Hayward’s criticisms of Dobson largely concur with mine, but his paper offers an expanded discussion of those points and extends the critique to the ‘environmental’ and ‘ecological’ aspects of Dobson’s work I do not address. I was not able to see Dobson’s reply before this book went to press. 18 Alasdair MacIntyre, After Virtue: a Study in Moral Theory (London: Duckworth Press, 2nd edn, 1985); Alasdair MacIntyre, Whose Justice? Which Rationality? (London: Duckworth Press, 1988). 19 Walzer, Spheres of Justice. 20 Michael J. Sandel, ‘The Procedural Republic and the Unencumbered Self ’, Political Theory, 12:1 (1984). 21 Rawls, Political Liberalism, p. xvii, emphasis added. 22 Rawls, Political Liberalism, p. 14. 23 There are some difficult cases at the margins, such as persons in an irremediable persistent vegetative state who therefore lack self-consciousness or any ability to will and act, but we

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can set discussion of these aside for the purposes of this study. 24 Simon Caney, ‘Liberalism and Communitarianism: A Misconceived Debate’, Political Studies, 40 (1992), p. 275. 25 Erving Goffman, ‘Role Distance’, in Erving Goffman, Encounters: Two Studies in the Sociology of Interaction (Harmondsworth: Penguin University Books, 1961), p. 76. 26 Goffman, ‘Role Distance’, p. 7. 27 Alan Gewirth, ‘Obligation: Political, Legal, Moral’, in Human Rights: Essays on Justification and Application; A. John Simmons, Moral Principles and Political Obligations (Princeton, NJ: Princeton University Press, 1979), pp. 16–21; Albert Weale, ‘Citizenship Beyond Borders’, in Ursula Vogel and Michael Moran (eds), The Frontiers of Citizenship (Macmillan Academic and Professional, 1991), pp. 158–9; Albert Weale, Democracy (Basingstoke and London: Macmillan Press, 1999), p. 87. 28 Desmond S. King and Jeremy Waldron, ‘Citizenship, Social Citizenship and the Defence of Welfare Provision’, British Journal of Political Science, 18 (1988), 442. 29 David Jacobson, Rights Across Borders: Immigration and the Decline of Citizenship (Baltimore and London: Johns Hopkins University Press, 1996, 1997), p. ix. 30 Soysal, Limits of Citizenship; Yasemin Nuhoglu Soysal, ‘Changing Citizenship in Europe: Remarks on Postnational Membership and the National State’, in David Cesarani and Mary Fulbrook (eds), Citizenship, Nationality and Immigration in Europe (London and New York, 1996). 31 Michael Zürn, ‘Democratic Governance Beyond the Nation State’, in Michael Th. Greven and Louis W. Pauly (eds), Democracy beyond the State? The European Dilemma and the Emerging Global Order (Lanham, Boulder, New York and Oxford: Rowman & Littlefield Publishers Inc., 2000). ^

3 Citizenship of the European Union

The legal position and its development Since the 1970s, the view that popular legitimacy would be a precondition for development of the EU as a unitary and purposive actor in international affairs has prevailed among EU political elites. The influential 1975 Report by Leo Tindemans, a former Belgian Prime Minister, in its call for a more distinctive EU ‘identity’ on the international stage, hinted at later ideas of both Union citizenship1 and attempts to create a European anthropos contained in the recommendations of the Adonnino Report of 1985 (flag, anthem, passport covers). It was within that general interpretive context that EU citizenship was understood and intermittently debated.2 The transformations brought about at the end of the 1980s and beginning of the 1990s by the end of the Cold War, and the resulting intergovernmental conferences held to recast the EU, supplied the relevant catalysing conditions. A proposal on citizenship by the Spanish delegation3 to the 1991 IGC became the initiative around which the formulation of EU citizenship as a source of legitimation condensed.4 Its fruits came in the Maastricht Treaty (the Treaty of European Union) of 1992. Article B TEU declared one of the objectives of European Union to be ‘to strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union.’ Article 8 (EC) stated: 1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. 2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.

Subsequent clauses of Article 8 (EC) provided for the further development of EU

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citizenship by the Council of Ministers and its monitoring by the Commission, and also for a small collection of rights to be assigned to EU citizens which were, listed briefly:

• • • • • • •

freedom of movement and of residence within the territory of the member states; if resident in a member state of which one is not a national, the right to vote and to stand as a candidate in municipal elections in the state of residence; if resident in a member state of which one is not a national, the right to vote and to stand as a candidate in European Parliamentary elections in the state of residence; on third-party territory where one’s member state has no representation, the right to consular or diplomatic protection by the authorities of any member state; the right to petition the European Parliament; the right to address complaints regarding the maladministration of Community institutions to the Parliamentary Ombudsman; when corresponding with Community institutions, the right to receive replies in the same (recognised Community) language one wrote in.

EU citizenship is reserved to nationals of the member states; all nationals of the fifteen member states are EU citizens, and all EU citizens are nationals of a member state. The capacity to determine nationality is expressly reserved to the member states, as Declaration No 2 annexed to the Maastricht Treaty by the states makes clear: ‘the question whether an individual possesses the nationality of a Member State shall be settled solely by reference to the national law of the Member State concerned’, a position maintained by the European Court of Justice.5 Thus the domestic authorities of the member states determine, indirectly, who does and who does not have EU citizenship. Far from superseding nation-state citizenship, EU citizenship is more accurately understood as reinforcing it. The creation of the EU tier of citizenship makes nation-state citizenship more significant rather than less, since national citizenship is now the gateway not only to political rights and benefits at its own level of political organisation but also to the relevant rights and benefits of the supranational tier. Of the rights specified, some declared what was already legally established practice within the EU institutional framework. Others were constituted as rights for the first time.6 Many were already provided for EU citizens by international conventions or domestic legislation, such as voting rights for residents in local elections (widely available in domestic jurisdictions, and established by Council of Europe Convention simultaneously with the TEU). Art 8(d)(EC) as it related to the petitioning of the Parliament was actually, from the citizen’s point of view, restrictive as compared to the previously accepted practice since it meant the citizen had now to show (a) that the matter of concern fell within the Community’s fields of activity, and (b) affected him or her directly – neither of which restriction formerly applied.7 Some rights were conferred more widely than the citizenry; for

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example, the rights to petition the Parliament and to apply to the Ombudsman (Art 8(d) (EC)) were also held by ‘any natural or legal person residing or having his registered office in a Member state’ (Arts 138(d)(EC) and 138(e)(EC)). The scope of the electoral rights was restricted to those citizens not living in their state of origin, effectively less than 2 per cent of the total EU population.8 A significant test of the status of EU citizen from a legal perspective is perhaps whether it may ultimately give rise to a horizontal direct effect (i.e. directly enforceable rights between individuals).9

Post-Maastricht The Amsterdam Treaty (1997) made one minor addition and another that may prove significant in the future. The minor is the following sentence: ‘Citizenship of the Union shall complement and not replace national citizenship.’ The important additional clause is Article 18(3).10 Indent (2) immediately preceding it empowered the Council to adopt, should the Treaty not otherwise provide them, provisions in order to attain the objective of citizens’ rights of movement and residence within the territory of EU member states. Article 18(3), however, went on to state that 18(2) ‘shall not apply to provisions on passports, identity cards, residence permits or any other such document or to provisions on social security or social protection.’ Despite the mention of ‘duties’ of citizenship in Article 17 (2), there are as yet no political obligations or duties explicitly and specifically tied to citizenship. In December 2000 the Heads of State and Government adopted the Charter of Fundamental Rights of the European Union,11 whose provisions are addressed to the institutions of the Union and member states when they are implementing Union law. The Charter’s Chapter V on Citizens’ Rights12 listed existing rights under the Treaty but also included a right of access to documents (from Article 255 of the Treaty) and a new right to good administration (Article 41). Amsterdam was superseded by the Treaty of Nice, which entered into force on 1 February 2003. This Treaty dealt almost entirely with the institutional changes needed in order to incorporate the ten new member states whose accession took place on 1 May 2004 into the decision-making structures. Thus no changes were made to the articles on citizenship directly. Nice did however allow the Council a legal basis to lay down regulations governing ‘political parties at the European level’, including their funding. While the rights specified above form the core of the legal content of EU citizenship, a number of other rights that are relevant to persons in the EU, and that are often thought to be components of citizenship, are scattered through the Treaties. Especially pertinent are Articles 12 (prohibition of discrimination, here on grounds of nationality) and 13 (measures to combat discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation). The Commission has opted to include these as ‘fundamental rights’ in its periodic reports to the Council on implementation and progress of the citizenship

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provisions.13 Indeed its fourth report, covering a period up to 30 April 2004, interprets EU citizenship more widely than do the Treaties, to include for example ‘action in the fields of education, training and youth’, citizens’ entitlement to be aware of their rights, the naturalisation of third-country nationals who are longterm residents, and the Charter of Fundamental Rights, especially its specific ‘Citizenship’ Title but also articles 12(2) and 15(2), relating to European political parties and freedom of movement respectively.14 Since the legal creation of EU citizenship in 1992 some progress has been made along each of the policy fronts indicated. Electoral rights have been eased.15 Steady progress was made with respect to the freedom of movement and residence provisions until 200116 when they were substantially boosted by the adoption in April 2004 of Directive 2004/38/EC, which among other changes creates for EU citizens an unconditional permanent right of residence in another member state.17

Citizenship in the Constitution? The 2004 Constitutional Treaty18 proposed a number of changes to the way citizenship of the EU was to be understood. The salience of Union citizenship was signalled by the first six words of indent 1, Article 1, Title 1, Part I, under the heading ‘Definition and Objectives of the Union’, sub-heading ‘Establishment of the Union’: ‘Reflecting the will of the citizens …’ – so appearing to suggest that EU citizens might be seen as the Constitutional Treaty’s pouvoir constituants. The only other mention of citizens in Title 1, which deals with values and aims and otherwise refers to persons in general rather than citizens specifically, is Article 3(2), where citizens are to be offered ‘an area of freedom, security and justice without internal frontiers, and an internal market where competition is free and undistorted.’ The Constitution’s second Title became ‘Fundamental Rights and Citizenship of the Union’. The direct linking of citizenship with fundamental rights was new, and intentional, as Article 9 makes clear by setting it in the context of both the Charter of Fundamental Rights, now incorporated into the Constitution as Part II, and of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The implication of this is that citizens’ rights are not to be understood as limited to those specified in Title II, but interpreted in the light of the whole Charter. Confusingly, the Charter itself – as Part II – also has a section headed ‘Citizens’ Rights’ (Title V). This replicates the rights contained in Part I Title II, goes on to state that the European Parliament should be elected by direct universal suffrage in a free and secret ballot (Article 99(2)), adds a right (not restricted to citizens) of access to documents of the Union (Article 102), and expands and clarifies what is meant by the right to good administration (to have affairs handled impartially, fairly and within a reasonable time; to be heard before individual measures having adverse effects are taken; to have access to one’s file; that the administration be obliged to give reasons for its decisions; that damage caused be made good) (Article 101). The rest of Title II Part I is brief. Article 10 rejects the Amsterdam Treaty’s wording of EU citizenship as ‘complementary’ to

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national citizenship, stating ‘Citizenship of the Union shall be additional to national citizenship and shall not replace it’, and summarising the original rights of the Maastricht Treaty. The Title no longer contains the provision allowing the Council powers to take further measures to give effect to freedom of movement and residence rights, and it no longer contains the limits that are in existing Article 18(3) preventing Council action in respect of identity registration and social security as it seeks to craft such measures. Instead this aspect of citizenship is tucked away in Part III, Title II, headed ‘Non-discrimination and Citizenship’. After Articles 123 and 124, which iterate provisions for combating discrimination (based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation) asserted elsewhere, Article 125 contains the provision allowing further action on residence and freedom of movement. This time, however, the Council ‘may establish measures concerning passports, identity cards, residence permits or any other such document and measures concerning social security or social protection’ – a plain reversal (and one at odds with citizenship as elaborated in this work). Article 129 enables further citizens’ rights to be added in the future, but such laws cannot pass into force without approval by member states ‘in accordance with their respective constitutional requirements’. Finally, Title VI, entitled ‘The Democratic Life of the Union’, refers to citizens, but does so in a way that suggests deep confusion about the role of citizenship and indeed other kinds of social or political role in relation to democracy. The first two articles (45 and 46) are straightforward enough, asserting equality between citizens in the sense of their receiving equal attention from EU bodies, and going on to specify that citizens are directly represented in the European Parliament, that European-level political parties contribute to forming ‘European political awareness’ and to ‘expressing the will’ of Union citizens, and that ‘Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizens.’ (Article 46(3).) But when it moves on to Article 47, which deals with ‘participatory democracy’, it appears from the Constitution that the role of the citizen as active participant in the Union’s democratic life is not qualitatively different or appreciably more considerable than that of various other kinds of actor including ‘representative associations’, ‘civil society’, ‘parties concerned’, and ‘social partners’ – not neglecting to mention ‘churches and religious associations or communities’, and ‘philosophical and non-confessional organisations’ – and furthermore extends hardly further than the opportunity to be consulted by Union organs during the formation of policy, along with everybody else. Included in this Article too is the so-called ‘citizens’ initiative’ clause, stating that not fewer than one million citizens (subject to conditions and procedures to be decided by later legislation) may invite the Commission to submit a proposal for a law if it is needed to implement the Constitution. There has never been an express prohibition against citizens combining, in any number they choose, to write a letter to the Commission on any matter they choose, including inviting it

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to submit a proposal for a law, and nor is there likely to be. In effect this clause notes an existing (if unstated) liberty only to hedge it with restraint. It is difficult to see that it adds anything to EU citizenship.

Early commentary EU citizenship is not the product of theoretically-informed deliberations, even less of a popular mobilisation. Rather, it is the outcome of the confluence of immediate practical pressures on member states at a particular historical juncture, and builds on previous and also contingent accretions. So far at least, political bargaining has played a greater role in its development than constitutional deliberation. This, and the motivations that are presumed to lie behind EU elites’ support of the citizenship project, are enough to damn it in the eyes of some critics. But a rejection of the idea and reality of EU citizenship on that account, even were these surmises about motivations and intentions to be well-founded, would be mistaken. The only defensible normative test must be what citizenship actually does, and there is no reason to suppose a priori that contingent circumstances of its emergence and origin necessarily have any bearing on that, or that any bearing they might have can be easily inferred. For the purposes of normative critique, we need to do rather more than narrate the context of origin. The analytical literature on, or germane to, EU citizenship, is large and burgeoning. The move to establish the status of Union citizen stimulated appeal to and further production of a body of work in cognate areas, offering historically or sociologically-informed explorations of the national traditions of citizenship from which materials EU citizenship might build have emerged,19 and discussions of citizenship in the context of migration and immigration and social exclusion.20 Early concerns were expressed that Union citizenship could become exclusionary or xenophobic, dividing insiders from outsiders of ‘Fortress Europe’,21 or might be the language in which the participation of persons as factors of production in the building of Europe-wide markets was made palatable.22 Much of the early comment came from legal analysts exercised by the judicial implications and potentials of such an innovation,23 particularly those legal specialists with interests in theory.24 The initial reception of Article 8 TEC by legal specialists was mixed. While some were sceptical that anything might come of citizenship of the EU, describing it for example as ‘pie in the sky’,25 others were guardedly optimistic, finding the Treaty’s citizenship articles ‘something of a public relations exercise, but can perhaps … lay the foundations for a serious constitutional construction in the future’.26 Most, in the end, agreed that ‘the essence of what it means to be a European citizen cannot be judicially determined’.27

Investigations in political theory and EU citizenship – the story so far For political scientists and theorists both the prospect and the actual formal

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establishment of the status of Union citizen raised a host of intriguing questions since such an innovation unsettled a number of basic assumptions and concepts, especially around the conceptions and the politics of identity and of order.28 Commentators soon began to examine and rethink issues of sovereignty, democracy, and citizenship,29 and the connections between citizenship and national identity.30 Elizabeth Meehan pointed to a development of social rights at EU level anticipating codification of the status of citizenship: ‘a new kind of citizenship is emerging that is neither national nor cosmopolitan but that is multiple in the sense that the identities, rights and obligations, associated … with citizenship, are expressed through an increasingly complex configuration of common Community institutions’.31 Habermas located EU citizenship within the context of the ‘disintegration’ of the classic form of the nation-state, as it yields under the triple onslaughts of adaptive pressures within its supranational and global environments, changing configurations of order at its own level, and shifts of population.32 The interesting questions, he opined, were first whether ‘citizen of the EU’ might be capable of becoming more than ‘client’ or ‘subject’: could it become an ‘active citizenship by means of which the individual can himself bring influence to bear on democratic changes of his own status’;33 and second, whether a common supranational political culture might emerge alongside the differing national traditions and cultures.34 The conceptual and theoretical challenges for citizenship in the EU appeared to be these: Is there a theoretically coherent account of citizenship in which EU identity can co-exist alongside national identity as a focus of affect, rather than supplanting national identity? Would such a citizenship enable citizens to ‘own’ political output as self-authored while maintaining the conditions of pluralism and diversity? From an early stage, the twin issues of cultural belonging and political capacity were seen as inextricably linked. Both came together in what has come to be known as the ‘no-demos’ thesis.35 According to this, the EU lacks a European ‘people’. Instead, it has numerous peoples who are Italian, Finnish, Hungarian, etc. Taken together, they do not compose a single larger people. Language and cultural diversity restrict participation in European opinion-forming and interest-mediation, and there is no ‘European’ media, no ‘European’ public, and no ‘European’ political discourse. Consequently the interaction of social and political institutions needed by a liberal democracy, through parliaments, political parties, citizens’ movements, interest associations, communications media, and what might in general be called ‘the public sphere’, cannot take place: there simply is no collective subject able to mobilise, no democratic will to be formed.36 This thesis is a severe admonition not only for the prospect of Union citizenship but also for Union democracy, as Weiler shows in his analysis of the logic of the German Federal Constitutional Court’s Maastricht decision,37 which invoked the same argumentative strategy. The Court’s twin assumptions that (a) democratic political authority is dependent on a demos, and (b) there is no EU demos, lead to the perverse conclusion that democratisation of EU decision-making is not possible. Since, on the Court’s reading, a demos is the political expression of a people already culturally defined as such, and since such demoi are found only severally

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and within the boundaries of member states, then democratic authority too can be found only (and exhaustively) severally, within the boundaries of member states. This is, to say the least, a question-begging argument. Others have eschewed such conceptual legerdemain but wondered nonetheless whether, in the absence of a sense of ‘peoplehood’, persons in the EU can discover enough common identity to generate either the solidarity thought to be required for redistributive policies or the shared ethos out of which sufficient consensus to allow collective action can emerge. Enveloped by this debate are two distinct questions: whether an EU identity is feasible, and whether an EU identity is desirable. What is the central problem that an EU-wide identity is deemed to address? Garnering the support needed for the adequate functioning of political institutions and public compliance with its laws is a problem in large polities. The underlying tension comes from the decoupling of cultural and social participation, which provide most of the bases of self-definitions, from the realm of political and legal participation.38 The supranational level is by definition a comparatively high level of organisation and the EU is a large polity. There is an asymmetry between the supremacy of decisions formulated (by ‘them’) at a site that appears ‘cold’ and ‘remote’ over those formed (by ‘us’) at a site that feels ‘warm’ and ‘connected’, and it is this combination of supremacy at one level and warmth at another that lies at the root of current popular disaffection with the EU.39 The perceptions of proprietorship over democratic political decisions that motivate their free acceptance are thought to be harder to engender in culturally diverse polities, too, and the EU is culturally diverse. Some observers are therefore sceptical about the possibility of a substantive EU citizenship, believing its social precondition to be a full and rich feeling of EUwide identity that is not, in fact, in place.40 These sceptics suggest that the willingness to see oneself as a member of a particular political community that is congruent with a particular jurisdiction rests on a ‘thick’ identification incorporating substantial generalized benevolence or feelings of loyal enduring attachment toward all other members. Whether these are actually in place, or are required to be, for effective political cooperation even at nation-state level must be open to a good deal of doubt. Indeed, a main bone of contention between those who believe that some sort of European political identity functional for EU citizenship is possible and those who do not is precisely this question of the nature of the bonds required. Still, if you believed that citizenship is synonymous with or merely expressive of group definition, it would not be surprising if you concluded that an EU identity would be needed in order to legitimate the EU as a democratic polity. One early type of response, which accepted not only the need for but also the desirability of a substantive single ‘European identity’ on the model of a national identity, attempted to argue that such an identity was in fact present, though latent. A sense of being ‘European’ (it was said) came from a common history, staging posts of which are the ancient Greeks and Romans, Christianity, the Renaissance, the Reformation, the Enlightenment,41 and so on. Such claims were met, not surprisingly, with some derision. One might equally point to feudalism,

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the Crusades, the Inquisition, witch burnings, religious wars and persecutions, imperialism and conquest, black slavery and white serfdom, fascism and communism, and genocides. As was once famously asserted, forgetting and historical error are needed for the constructing of organic collective identities42 – but they who forget history are condemned to repeat it, and there is surely enough to keep us busy in the EU without our inviting further tragedy or farce.43 Another early response, which also accepted the need for and desirability of a common identity but thought it needed to be prodded into being (by top-down initiatives) rather than recalled, became the prevailing wisdom for a while amongst political elites in the EU. The genesis of this was probably Tindemans’ 1975 report, mentioned above, but it was certainly present in the adoption of flag and anthem in the 1980s, discussions of ‘European’ football teams and television channels that swirled around through the late 1970s and into the 1980s, and it was one of the drivers of the EU’s audiovisual policy in its early years,44 though this tendency began to recede as it became more evident that the identity-building project was simplistic and that people, once they perceived it, were resistant. A few academic voices have endorsed the formation of a substantive ‘thick’ European identity on the model of a national identity,45 but most have regarded it as regressive and worried that it would likely replicate some of the exclusionary, xenophobic, essentialising, or imperialistic aspects of national identities. Quite apart from the putative content of such an idea of ‘Europeanness’, it could be objected that such a project misses the opportunity – or the demand – to examine more closely our commonplace assumptions and practices, and to rethink and refashion them, if required, in the light of our changing political realities. That they are being so rethought and refashioned is beyond doubt, and EU citizenship has been a locus of this, as Wiener’s (strictly anti-essentialist) study shows. Her careful analysis examines citizenship as a contingent, relational, and developing practice, ‘shaped by past experience, future expectations and present contextual constraints and opportunities’46 whose meaning shifts over time. Through iterative processes of policy deconstruction and reconstruction, particularly through the policies relating to special rights and passports, the character of Union citizenship was initially constructed, and in such a way as to become part of the supranational polity’s broader institution-building; its future will be shaped and reshaped by those who practice and contest it. EU citizenship has not therefore created a single European identity, but rather mobilised a variety of identities.47 If we accept that citizens construct the practices and inflect the meanings of their own citizenship, as Wiener’s work suggests, then we might wonder on what basis might they do so, and what might the nature of their citizenship be? That is, we must assume that, even given their circumstances of ideational and other constraint and contingency, citizens construct their realities (in the senses both of causing and of interpreting change) on the basis of empirical and normative ideas, in particular ideas about feasibility and desirability, act (with greater or lesser success) accordingly, and that such action is consequential. What, then, is the available repertoire of visions of citizenship?

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According to Weiler, the decoupling of nationality and citizenship within the EU opens the possibility of conceptualising an EU citizenship of multiple demoi, in which citizens are invited ‘to see themselves as belonging simultaneously to two demoi, based, critically, on different subjective factors of identification’.48 Rightsholding has been identified by many as the key to the supranational level of identification. According to Howe,49 beliefs about commonality constructed out of common rights-holding is exactly what citizens’ affinity in the EU might consist in. One version of this is offered by the notion of constitutional patriotism associated with Habermas’s discursive republicanism,50 and discussed in relation to the EU also by Ingram51 and Lacroix.52 Constitutional patriotism, for Habermas, refers to public debate within the common horizon of interpretation whose fixed points are the fundamental rights and principles already enduringly linked with citizens’ commitments, purposes, convictions and motivations.53 The requisite elements of sociality are found in the presuppositions of communicative practice and the ethics of discourses oriented to practical reason. Habermas suggests that this could encompass differentiated ‘life-world’ contexts, i.e. national and other cultures. In effect, this idea postulates a common political identity, one that is ‘civic’ rather than ‘ethnic’, and linked to discursive practices within the constraints of an existing liberal (rights-holding) political culture. It is constitutional because it is oriented to the formal, positive, material, centre, and deals with its structures; it is patriotic because ‘the legally constituted status of the citizen is dependent on the forthcomingness of a kindred background of motives and beliefs … geared toward the commonweal … that cannot be enforced legally’.54 An alternative account of citizenship that also offers ‘different subjective factors of identification’ is that associated with Richard Bellamy and Dario Castiglione.55 As to the social basis of EU citizenship, they propose a model of community described as ‘cosmopolitan communitarianism’,56 ‘whereby communitarian attachments are modified by a cosmopolitan regard for equality of concern and respect’.57 In such a political community, ‘different communities converge on a range of compatible perspectives on common goals and endeavours’ to make ‘a civic Europe made up of different nations’.58 In contrast to Habermas’s model, the layer of overarching commonality here is ethical cosmopolitanism rather than a distinctively European civic ethos.59 In a third, liberal contractualist, version, appealing to the work of John Rawls,60 Percy Lehning suggests we see EU citizenship as an overlapping consensus, not on the common goals and endeavours so much as on the terms of political association itself.61 Here, consensus would be constructed out of converging elements in the various national political cultures. Not all theorists and commentators have taken up the invitation to account for two co-existing orders of political identification as the basis of European citizenship. It does, after all, still privilege the idea of the nation-state and the principle of nationality. In Kostakopolou’s view,62 the normative attraction of EU citizenship is precisely that it holds out the possibility of a ‘new form of citizenship which transcends the nationality model’.63 She argues that both the idea and the actuality of citizenship ought to be entirely detached from nationality, thereby

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making nationality politically non-consequential, and centred instead on domicile – where we live, work, play, pay taxes, and claim benefits – since domicile better captures our ongoing commitments, interests, and participation as social and political actors. If it were to be so, EU citizenship would have the potential for ‘redefining community, rethinking membership, rearticulating citizenship, and enhancing democratic decision making’.64 Nicolaidis offers what is almost the opposite strategy.65 Far from abstracting a common Union citizenship from nationality, Nicolaidis wants it to be better situated in national identities, but national identities which have been not so much ‘Europeanised’ as ‘multinationalised’. Her vision is one ‘which takes to their ultimate logic the implications of pluralism and the rejection of identity politics’66 by envisaging citizens as open to and borrowing from each others’ lives and perspectives, as engaging in interweaving processes of cultural and political hybridity that will lead in time to a multinational politics, oriented to shared objectives, of mutual accommodation – a community of doing, not of being.67 Decoupled from the question of the bases of EU citizenship, commentators have had, by and large, less to say about the substantive nature of such citizenship – perhaps because tackling the matter of what such a citizenship ought to consist in seemed hardly worth the effort before the (seemingly) prior question of its social basis had been answered. However, Shaw is clear that any account of identity in a transnational polity is only part of the story of Union citizenship, and dependent on the other half, an account of social citizenship rights in the context of the Single Market.68 By ‘social citizenship’ she intends a twenty-first century non-national version of the idea of citizenship developed by Marshall (and discussed in Chapter 1), incorporating market citizenship, industrial citizenship, welfare citizenship, and cultural citizenship – ‘substantially the full range of EC social and economic law in so far as this constructs the scope of individual rights or the collective situation of EU citizens’.69 Such socio-economic rights need to be accompanied by political rights, understood not as only those enumerated in the emaciated list of Article 8 TEC but as taking in the full and actual scope of application of the EU’s legal order.70 Empowering social and political institutions will generate the required identity, which need not appeal to territorial or ethnic membership.71 Wiener and della Salla locate citizenship in the context of constitutional and institutional development, political participation, and in particular the democratic deficit, noting that the creative evolution of citizenship practice itself is probably the most significant factor72 in the prospects for overcoming deficiencies and constructing the constitutional and institutional framework in ways that are hospitable to future citizenship. Surveys often present liberal citizenship and republican citizenship as the Montague and Capulet73 of citizenship theory. Each has a champion in the EU literature. Bellamy and Castiglione argue for a neo-republican mode of political engagement to shift citizenship, as Bellamy and Warleigh say elsewhere, from an ethic of integration to an ethic of participation.74 Political rights allowing effective participation are central, and this perspective conceives of EU citizenship as ‘the

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right to have rights’,75 that is, the right to contest the nature, definition, and scope of all other rights. It requires multiplication of the sites of decision-making power and also the multiplication of forms of representation.76 Specifically, what is needed is improvement of checks and balances between EU institutions, and an enhancement of citizens’ contestatory powers.77 Follesdal offers a reading of Union citizenship from a liberal contractualist perspective. Starting from a perspective in which citizens are to be regarded as free and equal and fully cooperating members of society,78 he postulates the EU as a scheme of such cooperation in the making. Schemes of cooperation find it difficult to operate in conditions of mutual suspicion, and will not be stable. Trust helps compromise to occur, and compliance with decisions once they are reached; it eases institutional change, and trust helps us to shape the institutions that shape us.79 What Union citizenship can (and ought to) do is to ‘foster and maintain the mutual, legitimate trust required among Europeans’80 by engendering impersonalised reciprocity of the form: ‘I’ll do this for you, knowing that somewhere down the road someone else will treat me in the appropriate way.’81 Citizenship, then, is the ‘beast of burden’ for the building of social and interpersonal trust.82

Conclusion, and beginning From the discussion so far it is clear that EU citizenship is a status in search of a role. Since Maastricht, EU scholars have developed a rich, intriguing, and lively body of positions on the matter of EU citizenship, from which its readers have learned much. However, the point to be made from the perspective of normative political theory is that the positions they outline begin too far down the argumentative chain, and rely on a number of theoretical assumptions not spelled out. They are insufficiently grounded. The challenge of arriving at a normatively coherent conception of citizenship, in the very altered conditions in which we must rethink it, is too wide and too deep for us to avoid having to go right to the heart of the matter. It will be necessary to reconsider some basic concepts and ideas, interrogate their assumptions from the very foundations, and state as clearly and explicitly as possible the grounding values from which theoretical reconstruction and elaboration proceeds. That is the project of the rest of this book, but it may aid readers for me to flag up very telegrammatically here how its content, the theory of supranational citizenship, responds to the issues and positions introduced by other analysts and theorists. In general, then, I take Wiener’s contention that EU citizenship is constructed, but stress the role of reflective agency in that process. I concur with Shaw’s view that rights should be more widely extended, in the senses both that more people should be brought within their scope, and that they should include social and economic domains; and I agree with Kostakopolou that such rights and entitlements should not be seen as privileges of nationality but linked rather to domicile; but contra both will argue that the rights in question are not components of citizenship and ought not to be seen as such. At issue here is not who should have EU citizenship,

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but rather: what should EU citizenship consist in? Though the nature of supranational citizenship is rights-based, the rights that are significant for citizens, as distinct from those that are significant to persons simpliciter, are political. Weiler’s point about the need for different subjective factors of identification causes no difficulty, though my conception of citizenship does not assume only two of these, but accommodates many; and I agree with Bellamy and Castiglione that such identifications should involve orientations to the distant and the local, but again think these need not imply merely the supranational and the national. Nicolaidis’s idea of situated identities that are open to hybridity and otherness is akin to the ideas I express in Chapters 9 and 10, but I do not see that this obviates the idea of a ‘common’ identity, loosely defined, and indeed will argue that dispositional openness to the other, if we all shared it, would constitute precisely the kind of supranational level of social relations that would be a useful adjunct to citizenship. The emphases on voluntarism, consent and dissent, and trust, in liberal contractualist accounts are all emphases that will be found too in my conception of citizenship, but the idea of political order as contractual is not a feature of it. Further, I hold that the project of EU citizenship can claim a better justification than stability of the EU’s political order, namely the freedom and well-being of persons, primarily but not exclusively those within its jurisdiction. With Habermas I believe that citizens’ orientations and attitudes to each other at EU level ought to be ‘civic’ rather than ‘ethnic’ – indeed, I go much further than he does and build ‘civicness’ into the fabric of the theory in making citizenship entirely institutional. However, I reject his thesis that these shared attitudes are sufficiently grounded by the idea of discursive procedure within an existing (European) political culture.83 This is a claim to which his philosophical method commits him, it appears to me, and for much the same reasons as Rawls’s insistence that justice as fairness is political not metaphysical commits him to a similar position;84 but happily it is not a claim I am bound to, since Gewirth’s methodological standpoint, adopted in this work, asserts criteria of justification independent of the context of application itself. Active engagement and effective participation is needed, if citizenship is to be something other than a flattering misnomer for subjecthood, but supranational citizenship defines why that is, and in particular how such agency is essential to democracy. All persons have ‘the right to have rights’, but supranational citizenship also involves the duty to ensure others’ rights to have rights are inviolate. Mostly, my aim is to move a conception of citizenship away from both belonging and privilege, and toward political capacity to define and revise and reformulate the contexts of lives lived. The EU is often characterised as a ‘community of fate’, a Schicksalgemeinschaft, or communauté de destin. The idea developed in this work is of a community of agents that actively take hold of, forge, and take responsibility for their own Schicksal or destin as far as possible – including by extending the boundaries of the possible. A final comment on the ‘no demos’ thesis: the idea of the demos as figured in these debates is not only anachronistic but atheoretical, being pre-institutional.

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As will be argued in succeeding chapters, citizenship is about political organisation and not social organisation. Citizens are actors occupying an institutional and constitutive role analytically distinct from their other social roles, and to understand citizenship better we need to separate out the purely political element in the variable geometry of communal association. Instead of a ‘demos’ the EU therefore requires persons occupying a certain political role, for each of whom that role forms part of a larger personal repertoire of social and political roles, including citizenships at different and alternative specifications of political institutionalisation and organisation – but each of those citizenships will be constituted by an institutional framework, and is not prior to it. Given that, the important issues for the EU are these. First, whether the institutional arrangements themselves support or endanger citizenship understood as political agency. Secondly, whether the underlying but distinct social contexts and mechanisms of mutuality within the EU, (or the prospects for them), are able to support the exercise of an effective citizenship.

Notes 1 Carlos Closa, ‘The Concept of Citizenship in the Treaty on European Union’, Common Market Law Review, 29 (1992), p. 1141. 2 Antje Wiener offers the definitive study of this in her ‘European’ Citizenship Practice: Building Institutions of a Non-state (Boulder, CO: Westview Press, 1998). 3 The Spanish proposal is reproduced as Appendix II in Epaminondas A. Marias (ed.), European Citizenship (Maastricht: European Institute of Public Administration, 1994), pp. 141–9 (there cited as taken from Finn Laursen and Sophie Vanhoonacker (eds), The Intergovernmental Conference on Political Union, Maastricht: EIPA, 1992, pp. 325 et seq). 4 Closa, ‘The Concept of Citizenship in the Treaty on European Union’; Antje Wiener, ‘The Constructive Potential of Citizenship: Building European Union’, Policy and Politics, 27:3 (1999); Magnette, ‘European Citizenship from Maastricht to Amsterdam – The Narrow Path of Legitimation’. 5 Close, ‘Definitions of Citizenship’, p. 12 fn. 23. 6 Close, ‘Definitions of Citizenship, p. 11. 7 Síofra O’Leary, European Union Citizenship: Options for Reform (London: Institute of Public Policy Research, 1996), pp. 64–6. 8 Commission of the European Communities, ‘Report from the Commission to the European Parliament and the Council on the application of Directive 94/80/EC on the right to vote and to stand as a candidate in municipal elections’, COM(2002)260 final, Brussels 30.05.2002, p. 9. 9 Norbert Reich, ‘A European Constitution for Citizens: Reflections on the Rethinking of Union and Community Law’, European Law Journal, 3:2 (1997). 10 Each new treaty, of course, alters the numbering of articles. Those given in respect of the changes brought about by the Amsterdam and Nice treaties refer in each case to the Consolidated versions of the EC Treaty. 11 Commission of the European Communities, ‘Charter of Fundamental Rights of the European Union’. 12 Other chapters are headed, respectively, Dignity, Freedoms, Equality, Solidarity, and Justice. 13 Commission of the European Communities, ‘Third Report from the Commission on Citizenship of the Union’, COM(2001) 506 final, Brussels, 07.09.2001. Also of interest are: Eu-

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ropean Parliament, ‘Report of the Committee on Institutional Affairs on Union citizenship’, Rapporteur Mrs Rosaria Bindi, PE 153.099/fin Or.It, DOC_EN\RR\118476, 6 November 1991; European Parliament ‘Report of the Committee on Civil Liberties and Internal Affairs on Citizenship of the Union’, Rapporteur Mr Renzo Imbeni, PE 206.762/fin. Or.IT, DOC_EN\RR\242\242422, 21 December 1993 (rejected in plenary 19 January 1994); European Parliament, ‘Members will find herewith a background document on EU citizenship, prepared by the Secretariat of the Committee on Institutional Affairs for discussion at the Committee meeting on 6/7 September 1995’, No 4/95, PE 213.840, fdr 277235, 31 August 1995; Council of the European Union, ‘Note for the Reflection Group’; European Parliament, Directorate General for Research, Division for Budgetary and Cultural Affairs and Comparative Law, ‘Citizenship of the Union: Possibilities, recommendations and suggestions for protecting and extending citizenship of the Union with a view to the 1996 Intergovernmental Conference to review the Maastricht Treaty’, Working Paper 6/95, PE 165.568, Luxembourg 1995; European Parliament, Secretariat Task Force on the Intergovernmental Conference, ‘No 22: Briefing on Fundamental Rights’, PE 165.564 Or.Fr/De, DOC_EN\DV\283\283733, Luxembourg 9 October 1995; Commission of the European Communities, ‘Second Report from the Commission on Citizenship of the Union’, COM(97) 230 final, Brussels 27.05.1997; European Parliament, Secretariat Task Force on the Intergovernmental Conference, ‘No 10: Briefing on European Citizenship’, PE 166.668 Or.FR, Luxembourg 20 February 1997; European Parliament, Committee on Legal Affairs and Citizens’ Rights, ‘Report on the second report from the Commission on citizenship of the Union (Com (97)0230-C4–0291/97)’, Rapporteur Mr Willy de Clercq, PE 225.CB5/ fin,DOC_EN\RR\354|354638, 27 May 1998. Commission of the European Communities, ‘Report from the Commission: Fourth Report on Citizenship of the Union (1 May 2001–30 April 2004), Brussels, 26.10.2004, COM (2004)695 final, pp. 4–5, 9–10. Commission of the European Communities, ‘Report from the Commission to the European Parliament and the Council of the application of Directive 94/80/EC; Commission of the European Communities, ‘Communication from the Commission on the application of Directive 93/109/EC to the June 1999 elections to the European Parliament: Right of Union citizens residing in a Member state of which they are not nationals to vote and stand in elections to the European Parliament’, COM(2000) 843 final, Brussels 18.12.2000; Commission of the European Communities, ‘Fourth Report on Citizenship of the Union’, p. 8. Commission of the European Communities, ‘Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member states’, COM(2001) 257 final – 2001/0111 (COD), Official Journal of the European Communities C 270 E/150, Luxembourg 25.9.2001. Commission of the European Communities, ‘Fourth Report on Citizenship of the Union,’ pp. 5–7. Commission of the European Communities, ‘Treaty Establishing a Constitution for Europe’, Official Journal of the European Union, (C series, No 310), Luxembourg: Office for Official Publications of the European Communities, 16 December 2004. Rogers Brubaker (ed.), Immigration and the Politics of Citizenship in Europe and North America (Lanham, MD: The German Marshall Fund of the United States/University Press of America Inc., 1989); Rogers Brubaker, Citizenship and Nationhood in France and Germany (Cambridge, MA: Harvard University Press, 1992); David Cesarani and Mary Fulbrook (eds), Citizenship, Nationality and Immigration in Europe (London and New York: Routledge, 1996); Klaus Eder and Bernhard Giesen (eds), European Citizenship: National Legacies and Transnational Projects (Oxford and New York: Oxford University Press, 2001). Rainer Bauböck, Transnational Citizenship: Membership and Rights in International Migration (Aldershot: Edward Elgar, 1994); Rey Koslowski, ‘Intra-EU Migration, Citizenship and Political Union’, Journal of Common Market Studies, 32:3 (1994); Andrew Geddes, ‘Immigrant and Ethnic Minorities and the EU’s “Democratic Deficit”’, Journal of Common Market

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SUPRANATIONAL CITIZENSHIP Studies, 33:2 (1995); Theodora Kostakopolou, ‘The “Protective Union”: Change and Continuity in Migration Law and Policy in Post-Amsterdam Europe’, Journal of Common Market Studies, 38:3 (2000); Theodora Kostakopoulou, ‘Is There an Alternative to “Schengenland”?’, Political Studies, 46 (1998); Joppke (ed.), Challenge to the Nation-State; Stephen Castles and Alastair Davidson, Citizenship and Migration: Globalization and the Politics of Belonging (Basingstoke: Macmillan Press, 2000); Randall Hansen and Patrick Weil (eds), Towards a European Nationality: Citizenship, Immigration and Nationality Law in the EU (Basingstoke and New York: Palgrave, 2001). Theodora Kostakopoulou, ‘Invisible Citizens? Long-term Resident Third-country Nationals in the EU and their Struggle for Recognition’, in Richard Bellamy and Alex Warleigh (eds), Citizenship and Governance in the European Union (London and New York: Continuum, 2001). Tony Downes, ‘Market Citizenship: Functionalism and Fig-leaves’, in Bellamy and Warleigh (eds), Citizenship and Governance in the European Union. Allan Rosas and Esko Antola (eds), A Citizens’ Europe: In Search of A New Order (London, Thousand Oaks and New Delhi: SAGE Publications, 1995); Marias (ed.), European Citizenship; John Handoll, Free Movement of Persons in the EU (Chichester: Chancery Law Publishing/Colorado Springs, CO: John Wiley & Sons, Inc, 1995); David O’Keeffe, ‘Union Citizenship’, in David O’Keeffe and Patrick M. Twomey (eds), Legal Issues of the Maastricht Treaty (Chichester: Chancery Law Publishing/Colorado Springs, CO: John Wiley & Sons, Inc., 1994); Carlos Closa, ‘Citizenship of the Union and Nationality of Member States’, in O’Keeffe and Twomey, Legal Issues of the Maastricht Treaty; Massimo La Torre (ed.) European Citizenship: An Institutional Challenge (The Hague: Kluwer Law International, 1998); O’Leary, European Union Citizenship: Options for Reform; Síofra O’Leary and Teija Tiilikainen (eds), Citizenship and Nationality Status in the New Europe (London: IPPR/Sweet and Maxwell, 1998); Síofra O’Leary, ‘The Relationship Between Community Citizenship and the Protection of Fundamental Rights in Community Law’, Common Market Law Review, 32 (1995); Niamh Hyland, Claire Loftus and Anthony Whelan, ‘Citizenship of the European Union’, Occasional Paper No. 6 (Dublin: The Institute of European Affairs, 1995). J. H. H. Weiler, The Constitution of Europe: ‘Do the New Clothes have an Emperor?’ and Other Essays on European Integration (Cambridge: Cambridge University Press, 1999); Jo Shaw, ‘European Union Citizenship: the IGC and Beyond’, European Publc Law, 3:3 (1997); Jo Shaw, ‘Constitutional Settlements and the Citizen After the Treaty of Amsterdam’, in Karlheinz Neunreither and Antje Wiener (eds), European Integration After Amsterdam: Institutional Dynamics and Prospects for Democracy (Oxford and New York: Oxford University Press, 2000); Jo Shaw, ‘The Problem of Membership in European Union Citizenship’, in Zenon Bankowski and Andrew Scott (eds), The European Union and Its Order: The Legal ´ Theory of European Integration (Oxford and Malden, MA: Blackwell Publishers, 2000); Jo Shaw, ‘Citizenship of the Union: Towards Post-National Membership?’; Ulrich K. Preuß, ‘Citizenship and Identity: Aspects of A Political Theory of Citizenship’, in Richard Bellamy, Vittorio Bufacchi and Dario Castiglione, Democracy and Constitutional Culture in the Union of Europe (London: Lothian Foundation Press, 1995). Hans Ulrich Jesserun d’Oliveira, ‘Union Citizenship: Pie in the Sky?’, in Rosas and Antola (eds), A Citizens’ Europe. Close, ‘Definitions of Citizenship’, p. 11. Carole Lyons, ‘The Limits of European Union Citizenship’, in Bankowski and Scott (eds), ´ The European Union and its Order. Laffan, ‘The Politics of Identity and Political Order in Europe’. Neil MacCormick, ‘Democracy, Subsidiarity, and Citizenship in the “European Commonwealth’”, Law and Philosophy, 16 (1997). Preuß, ‘Citizenship and Identity’. Elizabeth Meehan, Citizenship and the European Community (London, Thousand Oaks, and New Delhi: SAGE Publications, 1993), p. 1; Elizabeth Meehan, ‘Citizenship and the

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European Community’, Political Science Quarterly, 64 (1993). 32 Jürgen Habermas, ‘Citizenship and National Identity: Some Reflections on the Future of Europe’, original publication in Praxis International, 12:1 (1992), citations from Beiner (ed.), Theorizing Citizenship. 33 Habermas, ‘Citizenship and National Identity’, p. 268. 34 Habermas, ‘Citizenship and National Identity’, p. 271. 35 J. H. H. Weiler, ‘Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision’, p. 253; Dieter Grimm, ‘Does Europe Need a Constitution?’, European Law Journal, 1:3, 1995. 36 Grimm, ‘Does Europe Need a Constitution?’ 37 Weiler, ‘Does Europe Need a Constitution?’ 38 David Westbrook, ‘One Among Millions: an American Perspective on Citizenship in Large Polities’, Annales de droit de Louvain, 2 (1993). 39 This point has been stressed to me by Paolo Dardanelli. 40 Anthony Smith, ‘National Identity and the Idea of European Unity’, in International Affairs, 68:1 (1992). 41 Early writings on the EEC were often in this vein. More recent invocations are in Ernest Wistrich, After 1992: The United States of Europe (London and New York: Routledge, 1989), p. 77; Ernest Wistrich, The United States of Europe (London and New York: Routledge, 1994), pp. 78–81. See also Daniela Obradovic’s discussion of the need for legitimating myths, including those built around notional identities, in ‘Policy Legitimacy and the European Union’. 42 Ernst Renan, ‘Qu’est-ce qu’une Nation?’ [1882], in Discours et Conférences, Oeuvres Complètes de Ernest Renan, Tome 1 (Paris: Calmann-Lévy, 1947). 43 ‘Hegel remarks somewhere that all facts and personages of great importance in world history occur, as it were, twice. He forgot to add: the first time as tragedy, the second as farce.’ Karl Marx, The Eighteenth Brumaire of Louis Bonaparte (Moscow: Progress Publishers, 1954), p. 10. 44 Lynn Dobson, ‘Back to the Future: Ideas, Interests and Expertise in the Audiovisual Policy’, in Jeremy Richardson (ed.), Human Capital and Mobility Network ‘The European Policy Process’ Occasional Papers, No. 9, 1996. 45 Though see Lars-Erik Cederman, ‘Nationalism and Bounded Integration: What it Would Take to Construct a European Demos’, European Journal of International Relations, 7:2 (2001), and Jos de Beus, ‘Quasi-National European Identity and European Democracy’, Law and Philosophy, 20:3 (2001). 46 Wiener, ‘European’ Citizenship Practice, p. 10. 47 Wiener, ‘European’ Citizenship Practice, p. 301. 48 J. H. H. Weiler, ‘To be a European Citizen: Eros and Civilization’, in J. H. H. Weiler, The Constitution of Europe, p. 346; see also J. H. H. Weiler, ‘European Neo-constitutionalism: in Search of Foundations for the European Constitutional Order’, in Richard Bellamy and Dario Castiglione (eds), Constitutionalism in Transformation: European and Theoretical Perspectives (Oxford: Blackwell/PSA, 1996). 49 Paul Howe, ‘A Community of Europeans: The Requisite Underpinnings’, Journal of Common Market Studies, 33:1 (1995), pp. 42–3. 50 Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge: Polity Press, 1996). 51 For example, a general discussion of the extent to which the shared value of justice can suffice for political unity and its relevance for the EU is provided in Attracta Ingram, ‘Constitutional Patriotism’, Philosophy and Social Criticism, 22:6 (1996). 52 Justine Lacroix, ‘For a European Constitutional Patriotism’, Political Studies, 50:5 (2002). 53 Habermas, ‘Struggles for Recognition in the Democratic Constitutional State’, in Amy Gutmann (ed.), Multiculturalism: Examining the Politics of Recognition (Princeton, NJ: Princeton University Press, 1994), pp. 134–5 (original emphasis).

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54 Habermas, ‘Citizenship and National Identity’, p. 263. 55 Richard Bellamy, Rethinking Liberalism (London and New York: Pinter, 2000); Richard Bellamy and Dario Castiglione, ‘Building the Union: The Nature of Sovereignty in the Political Architecture of Europe’, Law and Philosophy, 16 (1997); Bellamy and Warleigh, ‘From an Ethics of Integration to an Ethics of Participation’; Richard Bellamy and Dario Castiglione, ‘Between Cosmopolis and Community: Three Models of Rights and Democracy within the European Union’, in Archibugi, Held, and Köhler (eds), Re-imagining Political Community; Richard Bellamy and Dario Castiglione, ‘Democracy, Sovereignty and the Constitution of the European Union: The Republican Alternative to Liberalism’, in Zenon Bankowski and Andrew Scott (eds), The European Union and its Order: The Legal ´ Theory of European Integration (Oxford and Maldon, MA: Blackwell Publishers, 2000); Richard Bellamy, ‘The “Right to Have Rights”: Citizenship Practice and the Political Constitution of the EU’, in Bellamy and Warleigh, Citizenship and Governance in the European Union; Bellamy and Castiglione, ‘Normative Theory and the European Union: Legitimising the Euro-Polity and its Regime’; Richard Bellamy and Dario Castiglione, ‘The Normative Challenge of a European Polity: Cosmopolitan and Communitarian Models Compared, Criticised and Combined, in Andreas Føllesdal and Peter Koslowski (eds), Democracy and the European Union (Berlin, Heidelberg and New York: Springer Verlag, 1998). 56 This has something in common with James Tully’s idea of the EU as a potential ‘cosmopolitan multilogue’ in his ‘The Kantian Idea of Europe: Critical and Cosmopolitan Perspectives’, in Pagden, The Idea of Europe: From Antiquity to the European Union, p. 353. 57 Bellamy and Warleigh, ‘From an Ethics of Integration to an Ethics of Participation’, p. 463. 58 Bellamy and Castiglione, ‘Between Cosmopolis and Community’, p. 173. 59 See the debate between Lacroix and Bellamy and Castiglione: Richard Bellamy and Dario Castiglione, ‘Lacroix’s European Constitutional Patriotism: A Response’, and Justine Lacroix, ‘A Reply to Bellamy and Castiglione’, both in Political Studies 52:1 (2004). 60 Rawls, Political Liberalism. 61 Percy B. Lehning, ‘European Citizenship: Towards a European Identity?’, Law and Philosophy, 20:3 (2001). 62 Theodora Kostakopoulou, Citizenship, Identity and Immigration in the European Union: Between Past and Future (Manchester and New York: Manchester University Press, 2001). 63 Theodora Kostakopoulou, ‘European Union Citizenship as a Model of Citizenship Beyond the Nation State: Possibilities and Limits’, in Albert Weale and Michael Nentwich (eds), Political Theory and the European Union: Legitimacy, Constitutional Choice and Citizenship (London: Routledge/ECPR, 1998), p. 158. 64 Kostakopoulou, ‘European Union Citizenship as a Model of Citizenship Beyond the Nation State’, p. 159. 65 Kalypso Nicolaidis, ‘Our European Demoi-cracy: Is this Constitution a Third Way for Europe?’, in Kalypso Nicolaidis and Stephen Weatherill (eds), Whose Europe? National Models and the Constitution of the European Union (Oxford: OXUNIPRINT, Oxford University Press, 2003). 66 Nicolaidis, ‘Our European Demoi-cracy’, p. 144. 67 Nicolaidis, ‘Our European Demoi-cracy’, p. 146. 68 Shaw, ‘Citizenship of the Union’, s I, p. 2. 69 Shaw, ‘Citizenship of the Union’, s IV, p. 13. 70 Ibid. 71 Shaw, ‘Citizenship of the Union’ s II, p. 10: s IV, p. 19. 72 Antje Wiener and Vincent Della Salla, ‘Constitution-making and Citizenship Practice – Bridging the Democracy Gap in the EU?’, Journal of Common Market Studies, 35:4 (1997); Andreas Follesdal, ‘Union Citizenship: Unpacking the Beast of Burden’, Law and Philosophy, 20:3 (2001). 73 The feuding Veronese houses of Shakespeare’s Romeo and Juliet. The Montagues and the Capulets are said in the Prologue to be locked in an ‘ancient grudge’.

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74 Bellamy and Warleigh, ‘From an Ethics of Integration to an Ethics of Participation’. 75 Richard Bellamy, ‘The ‘Right to Have Rights’, p. 41. 76 Bellamy and Castiglione, ‘Democracy, Sovereignty and the Constitution of the European Union’, p. 184. 77 Bellamy and Castiglione, ‘Normative Theory and the European Union’. 78 As in Rawls, Political Liberalism, p. 20. 79 Andreas Follesdal, ‘Citizenship: European and Global’, in Nigel Dower and John Williams (eds), Global Citizenship: A Critical Reader (Edinburgh: Edinburgh University Press, 2002), pp. 74–5. 80 Follesdal, ‘Citizenship: European and Global’, pp. 71–83. 81 Follesdal, ‘Citizenship: European and Global’, pp. 73–4. 82 Follesdal, ‘Union Citizenship: Unpacking the Beast of Burden’. 83 Unfortunately this point, which relates to difficult theoretical issues of foundationalism and anti-foundationalism, cannot be argued here. 84 John Rawls, ‘Justice as Fairness: Political not Metaphysical’, in John Rawls, Collected Papers (ed. Samuel Freeman, London and Cambridge, MA: Harvard University Press, 2001).

Part II

4 Gewirth: action and agency

Gewirth’s philosophy1 starts from a consideration of what is necessary for any and all human action, and it is a philosophy founded on action rather than being, because it is our actions (very broadly conceived to include speech and the act of choosing not to act, or choosing not to choose) that bring the field of morality into play. Action is distinct from mere observed behaviour: human action is purposive, in that it is intentional and oriented to some purpose. In other words, it is not random and arbitrary, as the buzzing of a fly about a room. It is also voluntary or free, in the sense that it is not an involuntary and automatic reaction to or movement provoked by an external stimulus. (Perhaps it will help to think of Giselle or Pinocchio: as mannequins they might move and speak, but only as humans could they act, because only then were their movements their own, made voluntarily and purposefully by their own volition.) Gewirth’s idea of freedom includes both the proximate exercising of control over one’s behaviour by one’s unforced choice, and one’s long-range effective ability to exercise such control. It is these general volitional capabilities of action that constitutes the person as an agent – and agency refers to the person in her or his capacity as a ‘doer’, as someone who acts in the world and does so freely and purposively, who could on any particular occasion have acted otherwise, and whose action in the world has (or potentially has) causal effect. This philosophical notion of ‘the agent’ stems from a debate about free will – ancient, but still very much alive and exercising philosophers today – and must be sharply distinguished from the way the term has recently come to be used in law or in certain political science applications, where ‘agent’ means something like ‘the representative’ or ‘the delegate’ of a ‘principal’ and it is this ‘principal’ that is the source and author of action. By contrast, in the philosophical tradition (and in this work) ‘the agent’ denotes that part of personhood that is the source and author of action, and a theory of agency lays stress on this self-production and self-ownership of one’s action. An agent’s purposes encompass three kinds of goods or values of well-being

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that Gewirth calls basic, nonsubtractive, and additive. By ‘goods’ Gewirth means capacities or capabilities for further purpose-fulfilment, rather than material objects that one attains for once and for all, and in this way Gewirth’s theory is dynamic – the stakes for the agent are not tangible chattels, but are rather her present and future opportunities to form, to pursue, and to attain the objects of purposes. The category ‘basic goods’ refers to the minimal necessary conditions of action and their means – life, physical integrity, mental equilibrium, and confidence in the general possibility of goal attainment.2 In this case tangibles such as food, clean water, clean air, shelter – and also the basic social organisation needed to assure them – do in fact count as basic goods as they are the means to minimum physical and psychological integrity. Gewirth uses the notion of a ‘nonsubtractive good’ to denote the retention of whatever capabilities and capacities the agent already has; the loss of a nonsubtractive good diminishes one’s stock of ‘goods’ and lowers one’s level of purpose fulfilment.3 For example, the destruction of one’s reputation would be the loss of a nonsubtractive good; similarly, fraud and invasions of privacy are also harms done to nonsubtractive goods, because in each case they take away or reduce something the agent already had. ‘Additive goods’ are those gains in capabilities for purpose fulfilment for which the agent acts, over and above the basic and nonsubtractive goods4 – goods by which the ‘full range of persons’ problem-solving, purpose-achieving abilities can be effectively developed’.5 Higher education is an example of an additive good. Gewirth understands the having of basic capacities (goods) to be a condition of having purposes and being able to try to achieve them, while nonsubtractive capacities and additive capacities are constitutive of those purposes.

Rights For action to be possible, certain conditions must hold. At the very least, agents must be free and must enjoy certain levels of well-being – if they are minutes away from dying of starvation, or are kept locked in a dungeon indefinitely, then action (except in a trivial sense) is not possible. Gewirth claims that there is a normative structure to action, such that certain normative requirements are entailed for agents if they are not to find themselves caught in self-contradiction.6 In so far as the agent is minimally rational, a certain set of judgements logically emerges from within that agent’s standpoint.7 The net result of these is that the agent regards her or his freedom and purposes as necessary goods since they are necessary to the further pursuit and achievement of her or his purpose-fulfilment.8 As her purposes are so vital to each agent, and some conditions are necessary means to her being in a position to pursue them, then each agent must hold that she has rights to those necessary conditions of action: freedom and well-being. (Thus, although this is a theory of rational agency, it is grounded not by the agent’s possession of reason but by her purposiveness.)9 At the very least, she must hold that she has a right to non-interference on the part of other persons with respect to her freedom and well-being, so that she has rights not to have them damaged

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by others. Then, each agent must on pain of self-contradiction accept the generalisation that all agents have those rights.10 This is because agency is the sufficient condition of having rights to freedom and well-being and if it is sufficient for one agent, then it must be sufficient for each agent.11 Thus a prudential position (that is, from within the agent’s own standpoint and with regard to her own purposes) converts to a moral one (that is, it is universal and bears on the interests of each and every person). To summarise so far, Gewirth’s preliminary answers to the questions ‘What ought we to do?’, ‘To whom ought we to do it?’, and ‘Why ought we to do it?’ are, therefore, respectively: (1) we ought to distribute freedom and well-being; (2) to all agents equally; and (3) we should be moral in this way because ‘that is required by reason in its most rigorous interpretation of avoiding self-contradiction’.12 His principal claim is that freedom and well-being are generic rights (generic because they underpin all action and thus every other right), and every agent has rights to them. Freedom is a necessary condition of agency, and includes a vast area (within the limits set by rights to well-being) of privacy, autonomy, and non-interference by others. Notwithstanding this emphasis on individual freedom, it is not absolute; it may be inapplicable in some circumstances, or overridden, for example, by social rules that are themselves justified (as in the cases of extractive policies for the purposes of socio-economic redistribution). To anticipate later objections, there are three clarifications about these rights to enter here. First, they are ideal moral rights, rather than positive legal rights. There is a conceptual distinction to be drawn between moral rights and legal rights, though there is a non-arbitrary relation between the two such that rights positively enshrined in law draw their justifications from the (ideal) moral rights, and moral rights have imperative, permissive, or prohibitive force in relation to positively established rights. In other words, political institutions are morally bound by such rights whether they contingently acknowledge they are so bound and therefore translate them into positive law, or whether they do not acknowledge they are morally bound and thus do not enshrine them in law, or indeed whether they do have such laws but reject the idea that law has anything to do with morality. Each person has these rights to freedom and well-being by virtue of being an agent, whether or not he happens to live in a state that recognises them, and whether or not they happen to have been enshrined into positive law. If a particular state happens not to recognise or to uphold such rights, then so much the worse for that state: it is a sign that the state is at fault in not doing what compliance with the rights compels it to do, not a sign that the rights do not exist. Just as these foundational rights are universal and egalitarian, so the justification of their distribution and entrenchment in practice will depend on their universality and egalitarianism being observed. This means that the rights are not only ideally equal and universal, but must be treated as so in actuality.13 The second point to be clear about is that rights generally imply correlative duties. If I have a right not to be tortured, then everybody else is under a duty not to torture me. Quite what the duty consists in, partly depends on what kind of a

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right it is. If I have a claim-right (sometimes called an entitlement) to the apples growing on the tree between my garden and my neighbour’s garden, then I can prevent others from picking them: my neighbour has a duty neither to pick them himself (or do anything else to them), nor to prevent me from picking them (or doing anything I choose to them). If on the other hand I have only a liberty-right (usually called a liberty) to the apples, then I am at liberty to pick them, but cannot prevent anybody else who is also at liberty to pick them, from doing so: in this case my neighbour may not prevent me from taking the apples (unless he has a claim-right to them), but he may be able to pick them himself, too. Who the duty falls to also varies: negative rights usually imply duties on everyone, so if I have a right not to be assaulted, then everyone has the duty not to assault me, but positive rights – where something has to be provided – often require a specification of who exactly is under the relevant duty, so if I have a right to be protected by a police force, then some specific person or persons must bear the duty to provide it. And as the last example shows, a right may imply a duty on just one person, or more than one person, or all. Whether there is always a complete correspondence of this sort between rights and duties is a matter of some debate, and there may be instances at the margin that are arguable. One very common reason for arguing that rights and duties are not strictly correlative in this way is that for some rights it seems very difficult to specify who ought to be the respondent. If each person has a right to food, then each starving person in Africa has a right to food. But who has the duty to supply it or to ensure the starving person gets it? It seems difficult to say that particular individual persons are the duty-bearers, or to identify who those persons might be, or to say how they might be able to fulfil their duty (should they each send a food parcel every month?) However, as we will see below, Gewirth has answers to these sorts of conundrums, so in his theory the organising presumption is that rights and duties are strictly correlative in that for each right there is a matching assignable duty. Thirdly, rights hold constantly, even if and when they are not exercised, or they are waived, or when the conditions in which they become operative don’t apply, or when they have been temporarily satisfied. An agent with a full larder retains a right to food – the fact she already has plenty does not destroy the right, though it does mean the conditions under which the right is operative and in which she may exercise it by making a claim against another do not hold. Her right to food in general is a constant, but she has no entitlement to any particular instance of food right now – while her right has not disappeared, she may not make the relevant claim for the time being. Similarly, should an agent waive a right, the right still exists – it is simply that the agent has chosen not to exercise it. He retains the right, but does not make the claim, or do whatever it is the right sets him at liberty to do.

Interaction and interdependence Rights and duties presuppose interdependence amongst a plurality of interacting humans, and are a way of ordering it. For Gewirth, the human existential situation

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is interactive and associative. Since each of us has rights against each other person, and each of us has duties to each other person, we are all related to each other by mutual rights and duties – and this will be all that relates us to most other people in the world, though some other people will be related to us by ties of affection or friendship or rivalry or common interest or special obligation, as well as by these moral rights and duties. In Gewirth’s philosophy therefore, rights and duties are like the tensile threads making up a vast web of interaction14 in which we are all located, and humanity is construed as the universe of agents whose relations are structured in terms of these mutual rights and their correlative duties. Rights and duties are constitutive of human relationships, and what they relate to is interpersonal action. Imagine a simple model of two-person interaction. Imagine that the interaction is asymmetric, in that although each person impacts on the other, one of them has more control of (or determines more) both their own participation, and also the impact on the other’s generic rights of that other’s participation (i.e. one person has greater control than the other of how the interaction impacts on the freedom and well-being of each of them). Let us describe the person with the greater control as the agent, and the person undergoing or being affected by the agent’s action as the agent’s ‘recipient’. The recipient is also an agent in that ordinarily he has the moral standing of an agent, but his agency is in abeyance during this interaction, so for the time being he is better described as a prospective agent. What distinguishes him as the recipient for the moment in this interaction is that the agent has control of, or determines, her own participation and also determines the generic character of his participation.15 (Perhaps next time they interact, it will be the other way around.) Now, since the agent must be logically committed to acknowledging the rights of other agents to the generic rights, and since recipients are also prospective agents, that agent must refrain from interfering with the recipient’s freedom by coercing him, and also refrain from harming him by interfering with his capabilities for action. We have thus arrived at Gewirth’s supreme moral precept: ‘Act in accord with the generic rights of your recipients as well as of yourself.’16 This is the Principle of Generic Consistency (from henceforth ‘the PGC’), which functions as a regulating principle of action and test of action. (In that sense – its function within the theory – it may help to see it as equivalent to Kant’s principle of the categorical imperative.) It lays on agents the categorically binding requirement that, in their interactions with others, they do not distribute freedom or well-being in ways that harm their recipients, and it will feature throughout this book as the most basic criterion of morality and as the source from which we may derive further specifications of what ought, or ought not, to be done. Though our conceptual model of interaction has two roles, agent and recipient, these roles are structural to situations, not essential to persons: persons are not stuck as one or the other throughout their lives. Rather, individuals move in and out of both roles. In real life people may (as their interaction progresses) slip between roles. Or they may switch roles on different occasions of interaction, so

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that the agent last time around is the recipient this time. Also, each of us sometimes takes one role and sometimes takes the other; and at any one moment in our lives, we are located in several agent roles and several recipient roles. (Despite the fact that all of us move constantly between agent and recipient positions, some people – the poor, the dominated – more often find themselves in the recipient’s position than others do, so the situational asymmetry has, to some degree, a structural parallel too.) Whatever our standing at any particular moment, it follows from the PGC that when we are dealing with others we must be attentive to and respect their rights to freedom and well-being as well as our own, and we should expect them to be attentive to and respective of our generic rights as well as their own. Attention to recipients’ rights will often mean agents reconsidering and moderating what they believe their own rights entitle them to do, or choosing not to exercise them. Gewirth’s moral philosophy develops and sets out more specifically what implications flow from this principle in terms of its applications to social interaction, and the obligations flowing from it are not merely negative. In certain circumstances recipients’ rights to well-being entail obligations on agents to provide positive assistance in order to help recipients.17 Agents must not interfere with their recipients’ freedom knowingly or intentionally by removing or weakening recipients’ informed control over their participation in interactions,18 for example through violence, coercion and deception. For people to participate freely in interactions they must consent to do so, and the conditions validating their consent are unforcedness, knowledge of relevant circumstances, and emotional calm.19 Agents ought not only to refrain from harm, in the sense of not performing actions detrimental to recipients, but they ought also to act positively to prevent harm where this can be done at no comparable cost to themselves. The PGC insists that a positive concern be shown for the basic well-being of others, and here Gewirth’s theory is unusual in stipulating that this applies wherever others’ wellbeing can be affected by one’s inaction as well as one’s action.20 On the other hand, this positive concern for others is not expected to be unlimited: it can be qualified by the kind or degree of harm; the agent’s knowledge of it; the agent’s ability to prevent it; and the cost of doing so.21 (On this latter point, an obligation’s being impossible or very onerous for one individual to fulfil does not necessarily extinguish it, as will be discussed below.) Rights and duties bear on the constant and general capabilities for action. It is not acceptable, as it might be within a utilitarian theory, to inflict specific harms in order to maximise a good, but they may be inflicted if to do so is the only way to avoid a worse harm. As a general rule the PGC requires that agents do not interfere with recipients’ additive rights22 but does not require the positive provision of additive goods.23 There are some important exceptions. Agents have positive duties to develop in themselves – and practise – the prudential virtues of character (courage, temperance, prudence, disposition to justice).24 They must demonstrate attitudes and behaviours needed for others’ enduring self-esteem (acceptance and toleration,

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considerateness and supportiveness) as well as correlated modes of respect, including ‘a recognition of the rights of others, a positive concern for their having the objects of these rights, and a positive regard for them as persons who have rights or entitlements equal to [one’s] own’.25 Consequently, agents are under an obligation to contribute to and support social institutions and arrangements that help others to develop their capabilities of action.26 A milieu that fosters each person’s dignity and effective agency, helps to bring about equality of the means for them to be productive, and provides the context within which mutual obligations can operate, is what institutions are in place to provide. These institutions, Gewirth argues, will include a liberal democratic political system under the rule of law, widely diffused property and widespread and equalised opportunities for obtaining it, and ‘supportive families, enlightening schools open to all, unfettered and abundant communications media, a pluralistic, nonhierarchical social structure’.27

Roles and institutions So far the proper moral relationship between two actors, in a two-person, tworole, model of interaction has been analysed and sketched. But the real world we live in does not contain just two people, but multitudes, and most of the interactions that most of us engage in involve many persons, most of them strangers (just think about everyone with some involvement in your daily journey to work, for example – all the employees of the train or bus company or the manufacturer of your car, for a start). Not only does almost everything we do involve in some more or less remote way a great many people, but their involvement is organised, structured, and mediated through institutions. If this were not the case, life would be unbearably chaotic: individuals interacting individually and arbitrarily and ad hoc with multiple others, without being able to form expectations about each other’s behaviour. In such circumstances it would be impossible to form and prosecute purposes at all. The institutions mediating our interactions include organisations (companies, universities, hospitals, clubs, courts, etc) but also certain kinds of entrenched, iterated, and complex social practices (such as burial, marriage, promising, voting). These are their forms, but what institutions are made of – their contents, so to speak – is roles and rules. The rules can be formal (laws, regulations) or informal (norms, customs). A stable and standardized framework of social rules, functional and organisational institutions, and social roles is needed to allow for agents’ pursuit of and participation in purposive activities. Multilateral and complex interactions are mediated through such social rules and social institutions. At this point, Gewirth’s theory does something distinctive and useful. It builds institutions right into its main fabric, showing not only that, and how, they have an independent part to play in structuring relationships between persons, but also showing (I contend) that in our complex real-life world they are the condition for morality: without them agents would be largely unable to exercise their

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rights and fulfil their duties. Where institutions are in place, they take on the initial burden of compliance with the PGC. One consequence of this is a shift of focus from individual acts to general rules. Institutions fall under the scope of the PGC, and will be deemed normatively satisfactory to the extent that they conduce to a state of affairs in which each agent is able to act in accord with others’ rights to freedom and well-being as well as their own. Should an institution meet this test, persons are required only to act in accordance with its roles, repertoires, etc, thus established.28 The obligations persons have as participants in these structured modes of interacting and associating stem from these requirements.29 ‘When actions fall under specific social rules that are themselves morally justified, the relevant qualities that ground rights are determined by the specific roles persons have in accordance with the rules. The rules justify differentiations of role that in turn justify differentiations of treatment.’30 Because of this agents do not have to approach every act they undertake as though it posed a fresh set of questions about what it is morally right, in this situation, to do; and they do not have to approach it as if it were a moment in a two-person model of interaction. Very broadly speaking, social rules are justified to the extent that they bring about equality in generic rights. Part of their justification is accomplished simply by the fact of their existence, as (all else being equal) rules promoting and stabilising a social order31 are of value: the mere existence of a public order of such rules contributes to the protection and extension of well-being. In their absence, disorder and unpredictability would reign; the possibilities for purpose-fulfilment would be curtailed, and its context destabilised and eroded. Conflicts would remain unresolved or tackled by force.32 However, evaluation of the moral worth of any social framework relates in part to the particular interactions, activities and associations it regulates.33 Specification as to exactly which associations, rules, and activities are justified and why,34 as well as an articulation of seeming deviations from it,35 are needed. As the PGC applies to rules, roles, and frameworks rather than directly to specific acts, it must justify not only what appears to be in accord with it but also what does not (as in, for example, the case of criminals’ punishment, which deliberately affects adversely their freedom and well-being).36 Overall, the authority of institutions to set morally satisfactory rules and duties is grounded in the generic rights of persons,37 and institutions can appeal to different kinds of justification, depending on which value they predominantly contribute to realising.38 The theoretical justifications emerging from Gewirth’s basic precept that each person’s rights to freedom and well-being should be assured can be ‘cashed out’, so to speak, in terms of the political institutions and arrangements whose authority they ground, and conversely, institutions and arrangements can be criticised where they fail to meet those requirements.

The argument against anarchy Morality compels political order. Why so? First, on account of the potential destructiveness to stable interactions between persons in its absence – without the

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predictability political order provides, lives are asocial as well as nasty, brutish and short. Secondly, a public order of collectively supported institutions provides the assurance, stability, uniformity, and equity that social rules and penalties must have in order to comply with the PGC. The mutual39 and positive nature of agents’ rights and duties vis-à-vis each other means that burdens and benefits are at stake, and the framework within which these are decided and allocated must itself be just (that is, PGC-compliant). The minimal level of order and organisation needed to assure agents’ most basic rights is developed in Gewirth’s ideal-type of the ‘minimal state’. This imagines a political framework whose objectives are restricted to the basic capabilities of action such as life, liberty, and physical integrity, and other important goods such as the (nonsubtractive) goods of reputation and privacy.40 Equality of rights in this polity extends only to mutuality of non-interference, and so delivers a system of criminal law. Because its emphasis is on the distributive equality of (antecedently presumed) generic rights, all persons must be equal before it.41 The main point to note is that for Gewirth this level of institutionalisation is not to be regarded as justified because it models a social contract, or can be arrived at through discursive activity in an ideal speech situation or as the result of reflection from within an original position. In Gewirth’s philosophy there is no attempt at all to argue that political association is justified because it is what would be agreed to by appropriately-motivated rational actors under ideal conditions. Instead he states baldly that a basic level of social and political association is simply what morality demands, because without it there is no prospect that persons’ equal rights to freedom and well-being will be observed. The institutionalisation of agents’ orderly inter-relations stems from the duties they hold to each other – and remember, each agent is already rationally committed from within her own standpoint to the observance of the rights of each other person. This being so, modelling consent is redundant. Since this minimal framework of rules embodies and guarantees the foundational elements of the PGC’s general rules, neither its existence nor the imperative and obligatory nature of its most fundamental laws and rules can be optional. Theories of political obligation conventionally address three lines of enquiry: whether there should be a political framework (including rulers) at all; what sort of constitution and decision procedures it should have, generally, and finally what the actual laws should be and who should govern. For Gewirth, the first two are answered by the working through of the logical consequences of the PGC,42 and can be deduced from it. But this seems to throw up a tension, because on the one hand his philosophy exalts individual freedom, but on the other appears to be leaving little scope for its exercise: if the theory already tells us what kinds of political arrangements we must have, what room is left for our free choice in the matter?

Political freedom and democracy The opportunity for individuals to consent or dissent to political possibilities is one form that freedom takes in political association. In contrast to contractarian

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theories such as those of Locke43 or of Rawls44 hypothetical consent cannot, in Gewirth’s theory, ground political community. But what it can do is say how that community’s standard and enduring institutions and arrangements should be undertaken: how it ought to operate. A basic framework of order, involving rules and laws obligatory for all its members, is morally obliged to guarantee that specific laws and the selection of governing personnel are determined by the method of consent, which provides the basis of political obligation within the society,45 and means the maximum possible availability and use of consensual procedures in political decision-making.46 This constitutional upholding of the equality of the generic rights to freedom helps to provide what is needed for every agent’s dignity, rational autonomy and self-esteem47 and enables the less advantaged especially – society’s recipients – to air grievances and claims.48 Formal equality of political participation may conceal substantive inequalities (such as gross disparities in economic power) that impact adversely on the real effectiveness of political equality. For this reason it is very important that adjustments to both the background contexts, and to the facility with which they can affect political outcomes, are made, to bring about greater equalisation.49 The background and the contents of agreements, too, must satisfy these conditions, which means (amongst other things) that grossly unequal starting points must not be reflected in the arrangements that are agreed.50 This is one reason why agents may not choose to eschew or abandon democracy. The main good to be secured by political constitutions is equal distribution of civil liberties, and ‘this equal right pertains to each citizen, and each person has a right to be a citizen of a state having the civil liberties’.51 Each member of society has an equal moral right to discuss, criticise, and work together with others to promote political objectives,52 and each person must have one and only one vote in the decision procedure settling specific laws and political appointments.53 This solution to the problem of how to institutionalise the conditions for both well-being and freedom makes a non-voluntary constitutional structure the guarantor of as much freedom of choice as is possible in routine political process. This freedom grounds derivative duties, so that if there is a specific decision agreed to, with specific rules, by way of a consensual decision procedure founded in full opportunities for consent and dissent, then the polity’s members must voluntarily consent to it and them.54 Having accepted the rules in so agreeing, members must then comply with particular applications of those rules, including observance of any corresponding duties and obligations, even involuntarily.55 In other words, once a general law has been adopted by justifiable procedures, agents may not choose on which occasions to comply with it. Where a polity has a constitution with the right contents, its limits will provide that its specific laws and decisions may not transgress the constitution itself. Therefore laws violating the equality of civil liberties will always be invalid, however they have been arrived at; and criminal acts and policies such as murder and slavery can never be justified by appeal to popular consent.56 If a polity lacks such a democratic constitution, then its members’ rights to freedom are infringed.

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Welfare and social equality In real life, effective rights to well-being are distributed unequally, and though Gewirth’s philosophy does not prescribe equality tout court it urges that a floor of basic well-being be instituted for all and thereafter directs that further inequalities be removed or reduced as far as possible.57 Our obligations with respect to others’ rights extend so far as the conditions required for their rational agency; but being the conditions of their agency, they are not optional, and we are not at liberty to choose whether or not to contribute so that they enjoy the basic conditions in which to be able to act. The obligation to provide basic goods in particular is precisely analogous to the duty to rescue in two-person transactions.58 Each agent bears a strict obligation to actively promote the generic rights ‘of those persons whose differential needs, status, and abilities make them most vulnerable to attacks on their rights to freedom and well-being’.59 However, individual agents are only obliged to offer positive help if they are able to do so at no comparable cost to themselves – they are not expected to drive themselves into poverty or danger equivalent to that of the person to whose aid they are going. Such help, obviously, would not be at anywhere near comparable cost to the relatively fortunate; more to the point, however, agents can bring down the costs of fulfilling their duties significantly by coordinating the required action through political institutions. Since they can do so, they ought to (and here is where Gewirth supplies the resources for an answer to the problem of how to match the duties of an individual in an affluent part of the world with the rights of a starving person in Africa). Where the fulfilment of obligations relating to persons’ generic rights calls for social arrangements, and those needs are recurrent, pressing, and relating to large numbers of persons, they should not be left to the vicissitudes of individual discretion or charity. A set of appropriately constitutionalised democratic political institutions is able to secure four things that agents by themselves or in voluntary groups will find difficult or impossible: (1) assurance and stability of provision; (2) its equitable and impartial distribution; (3) the equitable distribution of its costs and burdens among all members of society, and (4) the coercive activity which may be required for, or heighten the probability of successful achievement of, redistributive policies and equalizing rules.60 There are two further reasons why social inequalities should be tackled politically. First, they are often structural and the incapacities they entrench undermine possibilities of agency across domains over the longer term, so should not be left to contingent remedy but benefit from an enduring policy. Secondly, such harms are often caused by or contributed to by other social institutions, and perverse or unintended institutional consequences need institutional muscle to sort them out. Hence the stability, assurance and equity provided by appropriately conforming political rules and institutions are themselves intrinsically valuable, and must be supported. Society’s rules of economic distribution should establish the conditions whereby each person can reap the rewards of her or his effort, skills, and talents.

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This may involve (a) supplying goods to disadvantaged persons so they can reach the threshold at which they can sustain effective purpose-fulfilment, (b) providing education and other resources enabling the development of personal skills and other additive goods, (c) establishing and sustaining an economic environment which provides adequate and sufficient opportunities to permit the use of skills. The reason for maximising productive capacity is that it facilitates equality of generic rights, assuming a number of conditions are met, including that past injustices (such as misappropriation or illegitimate discrimination) are rectified, education is universally and effectively available, and trade unions have a place in economic life.61 Consequently there are these three kinds of contents to ‘equalizing’ laws: basic redistribution to the poor or unfree, education and training, and an economic environment that is supportive of each person’s exercise of initiative and energy. A polity that functions well in these areas will help agents to realise their positive duties vis-à-vis others’ basic, nonsubtractive and additive rights. In conclusion, what does Gewirth have to say about how political institutions link to agency, rationality, and morality? He outlines a kind of political framework that, he argues, embodies and encourages the commitment to agents’ equal rights to freedom and well-being, the conditions of action and purpose-fulfilment. It has four components: (1) a minimal level of public order with criminal law and an enforcement machinery for retributive justice, (2) supportive functions with laws and policies to attain distributive justice, (3) a constitutional structure guaranteeing consensual decision procedures, (4) specific laws decided on and persons elected by use of those procedures.62 These institutional arrangements do not exhaust what is needed for mutual respect for and equality of generic rights. The polity is also expected to positively encourage development of self-esteem and the prudential virtues, and also the disposition to act in accordance with justice. This last in particular should be embodied in all educational, political and social institutions.63

Conclusion: what’s distinctive about Gewirth? At this point it may be helpful to recapitulate some of the salient features of Gewirth’s philosophy. It is a philosophy that seeks to disclose the proper regulation of action and interaction between an indefinite array of individuals within a world in which humans are associative and interdependent. Complex webs of such rights and duties order, and make morally acceptable, our existential and inescapable interactiveness and interdependence. So Gewirth’s agent is distinct and discrete, but the idea of the ‘atomised’ and asocial individual that critics of liberal individualism often invoke is not discernible within his theory. Gewirth’s is a philosophy of justice, but justice seen in terms of the distribution of capacities for action, and especially capacities for successful action in pursuit of purposes that the acting individual values. As humans we move through the world purposefully, trying to achieve our plans – and would not be human in any recognisable sense if we did not. But we could not form purposes and act to try to fulfil them

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without certain levels of well-being and of freedom, so these are the conditions of action: all and any action, by each and every person. So a further point to note is that Gewirth’s theory is a universal theory, holding of all persons universally, because all persons pursue purposes, and all need some degree of freedom and wellbeing in order to do so. On the other hand, it does not assume what each agent’s specific purposes are, so accommodates cultural and other forms of diversity and differential allegiance. (Part III further develops this argument.) This is a theory of rational agency, and, like the philosophy of Kant that it draws from,64 binds together rationality, agency, and morality: morality just is rationality in action, freedom incorporates the idea of rationality, free action is agency, and agents because they are rational will be moral; so ultimately persons who are also agents can be brought to understand and conform to the demands of morality.

Notes 1 The exposition in this chapter is drawn almost wholly from Gewirth’s Reason and Morality, in which the full theory was first elaborated. 2 Gewirth, Reason and Morality, p. 54. 3 Gewirth, Reason and Morality, p. 55. 4 Gewirth, Reason and Morality, pp. 55–6. 5 Gewirth, Reason and Morality, p. 245. 6 Gewirth, Reason and Morality, p. 26. 7 Gewirth, Reason and Morality, p. 42–7. 8 Gewirth, Reason and Morality, pp. 52–3. 9 Gewirth, Self-Fulfillment, p. 171. 10 Gewirth, Reason and Morality, p. 112. 11 Gewirth, Reason and Morality, pp. 104–5. 12 Gewirth, Reason and Morality, p. 150. 13 Gewirth, Reason and Morality, p. 128. 14 Gewirth calls the relevant events ‘transactions’ rather than the more familiar ‘interactions’. There is a good reason for this – ‘transaction’ includes a class of actions affecting others but to which they do not inter-react, so to speak, and so covers a larger range of cases than ‘interactions’. Nonetheless, the term ‘transaction’ is more specialised and odd than I need for this work, and besides has connotations of commercial exchange that are unhelpful in a discussion of EU citizenship, so the more familiar ‘interactions’ will be used from hereon to cover the field of activity Gewirth indicates with his ‘transactions’. 15 Though this may or may not include initiating the interaction. 16 Gewirth, Reason and Morality, p. 135. 17 Gewirth, Reason and Morality, p. 134. 18 Gewirth, Reason and Morality, p. 250. 19 Gewirth, Reason and Morality, pp. 256–8, 284. 20 Gewirth, Reason and Morality, p. 217–30. 21 Gewirth, Reason and Morality, p. 230. 22 Gewirth, Reason and Morality, p. 241. 23 Gewirth, Reason and Morality, p. 226. 24 Gewirth, Reason and Morality, pp. 242–5. 25 Gewirth, Reason and Morality, pp. 137–8. 26 Gewirth, Reason and Morality, pp. 136, 249. 27 Gewirth, Reason and Morality, p. 248.

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28 Gewirth, Reason and Morality, p. 272. 29 Deryck Beyleveld and Roger Brownsword provide a methodical discussion of professional probity from a Gewirthian standpoint in their Law as a Moral Judgement. 30 Gewirth, Reason and Morality, p. 278. 31 Gewirth, Reason and Morality, p. 292. 32 Gewirth, Reason and Morality, p. 305. This is of course an impeccably Kantian position. See Immanuel Kant, The Metaphysical Elements of Justice (trans. John Ladd, New York and London: Macmillan/the Library of Liberal Arts, 1965); Immanuel Kant, ‘On the Common Saying: “This May be True in Theory, but it Does Not Apply in Practice”’, in Hans Reiss (ed.), Kant: Political Writings (Cambridge: Cambridge University Press, 2nd edn, 1991). 33 Gewirth, Reason and Morality, p. 273. 34 Gewirth, Reason and Morality, p. 279. 35 Ibid. 36 Gewirth, Reason and Morality, p. 280. 37 Gewirth, Reason and Morality, p. 281. 38 Gewirth, Reason and Morality, p. 282. 39 Mutuality is not emphasised in Reason and Morality, but is a strong theme of The Community of Rights. It is further discussed in Part III. 40 Gewirth, Reason and Morality, pp. 290–304. 41 Gewirth, Reason and Morality, p. 298. 42 Gewirth, Reason and Morality, p. 320. 43 Locke, Two Treatises of Government. 44 Rawls, A Theory of Justice; John Rawls, The Law of Peoples with ‘The Idea of Public Reason Revisited’ (Cambridge, Mass, and London: Harvard University Press, 1999). 45 Gewirth, Reason and Morality, p. 309. 46 Gewirth, Reason and Morality, pp. 284, 306. 47 Gewirth, Reason and Morality, p. 310. 48 Gewirth, Reason and Morality, p. 311. 49 Ibid. 50 Gewirth, Reason and Morality, pp. 289–90. 51 Gewirth, Reason and Morality, p. 308. 52 Ibid. 53 Gewirth, Reason and Morality, p. 309. 54 Gewirth, Reason and Morality, p. 283. 55 Gewirth, Reason and Morality, p. 285. 56 Gewirth, Reason and Morality, pp. 310–11. 57 Gewirth, Reason and Morality, p. 312. 58 Gewirth, Reason and Morality, p. 315. 59 Gewirth, Reason and Morality, p. 331. 60 Gewirth, Reason and Morality, pp. 314–15. 61 Gewirth, Reason and Morality, pp. 318–19. 62 Gewirth, Reason and Morality, p. 306. 63 Gewirth, Reason and Morality, p. 319. 64 See the discussions in Boylan (ed.), Gewirth.

5 Political agency

Introduction As is clear from the last chapter, social and political institutions are inextricable elements in Gewirth’s moral philosophy. Gewirth provides the theoretical and conceptual resources for moral exploration both at the micro-level, in his simple models of interaction between two agents, and at the macro-level, in his depictions of what kind of overall political architecture a society adhering to the fundamental principles of the PGC ought to have. But these moral considerations bearing on agents on the one hand, and the basic constitution of society on the other, are the end points of a relationship lying implied and mostly undeveloped in Gewirth’s own work. More remains to be elucidated about the theoretical relationships between those institutions and the underlying fundamental values from which they are claimed to flow. The intermediating institutions and relationships linking micro and macro, and morals and politics, need to be deduced and fleshed out. This chapter aims to show how and where citizenship fits into an account of the relationship between morality and politics. The argument will be that citizenship is the essential institutional link between individual human agency and collective political action. In presenting this conception of citizenship I introduce an idea of political agency developed by reflecting on Gewirth’s work. This idea of political agency draws on Gewirth’s account of moral agency but seeks to offer a general account of citizenship as the constitutive nexus between individual moral agency and the basic institutional structure of a potentially just and authoritative polity. In contrast to conceptions of citizenship stressing cultural belonging, economic equality, and societal integration, this approach places citizenship squarely in the domain of political powers and their importance for individual and collective moral agency. In elaborating political agency and citizenship I refer to elements of Gewirth’s theory of human rights as presented in Chapter 4, but am largely concerned with

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one of its propositions in particular whose significance, it seems to me, his larger theory does not always fully appreciate. It is this: that whatever might be said about the notion of freedom in abstraction, within any philosophy of action it must be positive as well as negative: ‘while the negative component of non-interference by other persons can exist without the positive component of power to act …the negative component does not comprise the freedom to act unless there is also the power to act’.1 From this insight stem the chief features of my conception of political agency: (a) a positive notion of freedom, (b) political freedoms as effective powers, (c) the inherently collective nature of political action, and (d) the use of such action to alter the comparative terms and conditions under which future political action takes place. Each of these themes can be found in Gewirth’s writings in various places, but nowhere did he bring them all together into one concept, nor mount a systematic consideration of what they might imply for the space between the individual moral agent and the just constitution of a polity. This chapter and the next aim to do so. My chief propositions are that we need the concept of political agency to get from individual moral agency as such to specifically political action; and such political action can only take place through standardised political arrangements – institutions – of which citizenship is predominant and key, since it is the core political phenomenon through which all others, if they are to be morally justifiable, are related.

From moral agency to political agency We begin from the qualifying conditions for general moral agency – that is, the conditions defining its exercise. Notions of agency derive ultimately from the ancient philosophical problem of free will versus determinism,2 and a fundamental premise in conceptions of agency is that with respect to any act, the agent could have acted otherwise – in other words, her choice was not fully determined. By definition, agents are assumed to be able to control their behaviour(s) by their unforced choice and with knowledge of proximate circumstances, for reasons and purposes they can adopt3 after reasoned reflection.4 To command one’s behaviour consistently with intention and meaning is just what it is to act as an agent, and to do so unconstrained by certain kinds of hindrances, and outside certain kinds of domination, is to act freely. Some implications need to be drawn out. Consider the unforced choice criterion, above. This suggests something substantive about freedom of choice, but also about unfreedom. It implies both that there be a range of alternatives – a set of distinct and sufficiently distinctive options – from which to choose, and also that the activity of choosing from it be neither coerced nor manipulated. It is evident that freedom of choice does not obtain in situations of duress. But besides blatant coercion, there are also situations of choice that are structured, in more subtle ways, by domination. In such circumstances, agents’ recognition of certain options may well be inhibited or the possibility of their selection chilled, as is argued persuasively by Pettit in particular.5

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In one way the idea of freedom as freedom of choice strikes one as somewhat cramped and pinched. In another way it seems exorbitant. Construed as choosing from a set of (pre-packaged) options, freedom of choice seems inherently reactive: it is the freedom merely to react, than to act; the freedom of recipience rather than that of agency. On the other hand, it also seems extravagant, since this kind of freedom pays too little heed to the need for compossibility and co-existence with the free choices of others that is also mandated by the equality principle. Since agents’ existential situations are interactive, their choices have to be coordinated, and such coordination may well impose constraints.6 The agent acts for reasons and purposes that she does or could acknowledge ownership of, and we can discern two orders of these. The agent has first-order reasons and purposes directly pertinent to her own projects and aspirations, and second-order reasons and purposes incorporating recognition of the need for and desirability of coordination with the projects and aspirations of other agents. So the free choices of individual agents may be variously related to collective choices. Agents will have both manifest or short-range capacities and capabilities, and more latent or long-range capacities or capabilities. Over-emphasis on the proximate choice situation risks distracting attention from the dispositional capacity for choice, which relates to its underlying and enduring context(s) rather than its immediate presentation. The circumstances within which choice arises, and those that are relevant to its exercise, need close scrutiny. Some circumstances surrounding moments of choice will relate in a very immediate way to the specific choice event presented, while others will relate to the choice event’s larger and more enduring social contexts, those collective frameworks within which individual lives and their actions take place. Background contexts set the range of meaningful options, and shape the potentials and qualities of our self-definitions, actions, and projects, and so determine the limits and influence the nature of our continuing and prospective exercises of freedom. Noting this brings us back to the point about how freedom of choice may be seen as reactive. It might be objected here that this overstates the case: since all choices are made under given circumstances, the term ‘reactive’ may be unduly pejorative. But no agent can accept ‘givens’ at face value. Some circumstances surrounding choice may indeed on examination turn out to be ineluctable, like the laws of physics or basic biology. But very many, and probably most, circumstances attending a moment of choice will be artificial, the fruits of human contrivance: they will be the standing residues of prior human actions and purposes. As Vico7 pointed out some centuries ago, what is humanly made may usually be unmade or remade. Supposedly ‘given’ circumstances are susceptible to modification by further active contrivance. Agents are therefore less the takers of options and more the makers of option sets and option situations. Their action is oriented to the contexts of choice as well as to the choices themselves. Why should that be? Because exercising that kind of control over action is part and parcel of the content and the definition of free rational agency.

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But there are vast differences in the multifarious contexts and circumstances in which action takes place, depending upon the numbers of persons involved, their proximity or remoteness (with such distance conceived in a number of different, and therefore not only territorial, dimensions), the significance and gravity of the action’s impacts on the agent and others, and the types, readiness and availability, and incidental consequences, of resources. Interaction, to illustrate, refers to both trivial exchanges of little consequence between intimates in a local setting and also momentous causal connections between anonymous masses of strangers at great geographical and recognitional distances. Exercising agency in either of these cases involves acting in as informed, unforced and purposefully a way as possible, and this itself demands our acknowledgement that situations are not ineluctable givens, or immutable arrangements to which agents can only react, but are themselves humanly contrived – or contain a large element of such contrivance – and if not in the short-term, at least in the longer term, are susceptible to human influence and, to varying degrees, control. One measure of that control is the degree to which situations can be brought to allow the greatest (com)possible spaces for informed and unforced choice of action. In many circumstances, opening up those spaces (and keeping them open) can only be achieved by concerted and routinised effort by many people: by social, and predominantly political, institutions.

Political agency: power in freedom A number of propositions emerge from these points. Action, if it is to pass beyond mere reaction, and if it is to exhibit agency, must be founded on an active concern for the range of options and also for the circumstances surrounding their presentation. By active concern is meant willingness to monitor and when necessary intervene, modify, or take charge of those circumstances and the range of options to which they give rise. Agency recommends both attentiveness and responsibility. This does not mean that everything can be or should be brought under human mastery, nor that agents should try to impose blueprints, nor that they busy themselves constantly in fixing what ain’t broke. But it does mean that agents reject fatalism. They also decline to live within the arbitrary confines of invisible hand mechanisms, where those invisible hands could and should be directed by inter-communicating brains: political agency extends individual freedom in ways that social processes left to themselves do not. And agents repudiate the passive evasion of responsibility that consists in sitting tight and waiting for somebody else to act. While moral agency is individual, this kind of agency cannot be, wholly. Certainly, individual agents determine courses of action, and must remain free to do so. But their relevant option sets, circumstances, and contexts are collective, partly or wholly. For example, individuals’ personal economies are nested in household economies, affected by the specific economic circumstances characteristic of demographic groups, industrial sectors and territorial regions, which in turn are

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shaped by economic structures and processes at broader levels of organisation. Contexts of action may be collective in one or both of two ways: they are produced by (prior) collective choice or action, and they apply to or impact on multiperson interactions. To the extent that they are indeed collective, then action to permit, amend, or transform such circumstances must in the ordinary run of things itself be a collective enterprise, for both practical and moral reasons. Practically, no single agent is likely to be able to effect changes to such complex and multifaceted sets of circumstances. Even where individual action might be effective, an agent’s willingness to act should be governed by great circumspection since such action must accord with equality of rights and agency, and to act unilaterally may well render others one’s unwitting recipients. Next, political agency is not static and reactive but instead is formative and dynamic, intrinsically dialectical, as can be seen by plotting it along two axes: what to do, and how to be. The two are interdependent – what we decide to do, and the set of options perceived as available from which we make that choice, are heavily influenced by who we are, that is what kind(s) of person(s) we think we are or would like to be, and those personae are partly built up out of what we do, or interpret ourselves as doing: the kinds of actions which characterise us. Further, they are interactive. Political agency – deciding what to do and then doing it – changes states of affairs, and the changes wrought affect both axes of future capacity. By cementing path dependencies of various sorts, agency shapes the future scope for deciding what to do, and by altering or reinforcing the terms of the relationships between persons, agency shapes the ways in which persons perceive their interrelationships, and thus themselves. Along the other arm of the fork, political agency construed as self-identification or self-assertion conditions future projections of self-definition and self-description, but also creates states of affairs such that certain future problem-solving responses are made improbable (or perhaps impossible), because too psychologically dissonant. So whether political agency is viewed through the lenses of resolution or of expression, it influences the contexts within which both have to take place in the future. While agency always has the same root structure, its expression is geared to the particular domain of its exercise. That aspect of individual agency oriented to collective frameworks of decision making and those contexts of possibility that are collectively set, is political agency. In attending to, engaging with and participating in significantly political activities, agents exercise political agency, as distinct, for example, from the more general (moral) agency they exhibit in acting in private or professional roles. Agency oriented specifically to overarching collective contexts and collective problem-solving is one distinctive type or sub-branch of agency, political agency, and it has the trait that it not only extends agency in general but it is also the ground for it in the non-ideal world in which all people actually live, most basic attributes of which include the multitudinousness of persons and the passage of time. Conceptions of agency and of citizenship must internally acknowledge interdependence and temporality. The general moral agency of an individual life is

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located within contexts of possibility that are both larger, and longer, than it; but by exercising political agency a person can contribute to altering those contexts in the present and shaping them for the future, and so affect the present and future opportunities and circumstances of her and others’ general agency. Where political agency can have no such effect, then however freely chosen the proximate choices of that person appear, they are nevertheless choices made from within limits over which she has had none of the control that she could, as a matter of feasibility in the non-ideal world, have had; and duties she owes to other persons may be less adequately fulfilled than they might be, for want of it. Agents are political animals; but at the same time are apolitical and anti-political animals too, and orient themselves to the purposes characterising the various domains of their lives and to the institutions and associations constructed around those purposes in ways best suited to them. As we saw in Chapter 2, persons inhabit multiple modes of being, personae, and social roles – scholar, aesthete, consumer, hero, parent, guru, lover, epicure, criminal, athlete, victim, etc – and forge relationships and interactions accordingly. These modes are not only multiple but formative and dynamic, again to varying extents and with different tempos, reflecting the diverse facets of individual selves and the complexity of the lives they compose. While political agency grounds capacities for general agency, and in that sense is necessary for it, there is no reason why it should have experiential pre-eminence in any particular individual life: agents must be free to assign value to their various roles and domains of experience, and negotiate, reconcile and adjudicate their co-existences and tensions, themselves. Although it shares with republicanism the idea of a public arena of action and a commitment to action within it, political agency denies that individual freedom, including its expression in private roles, is subordinate to it. Political agency is instrumental to individual agency per se, and must therefore resist attempts to posit it as hegemonic. (By extension citizenship is of fundamental, but need not be of overriding, importance, in any individual life.)

From political agency to political institutions Institutions are coherent, stable and standardized clusters of activities directed to some specific socially valued purpose, composed of rules, roles, practices, norms, conventions and other routinised and standardized actions.8 They may have a corporate component, involving an enduring organisation of people (universities, parliaments, orchestras), or not (promise-keeping, voting). Their rules and roles are constitutive, and declare what must logically and conceptually be the case for the institutionalised activity to take place. Agents come together to form different kinds of groups and associations, more or less loosely bounded, and at varying levels of specificity, for diverse purposes, and these are morally justifiable where they conduce to freedom and well-being. Now some of these institutions exist for purposes relating to the development and self-fulfilment of individual agents – friendship, say. But a subset of the general class of institutions has the

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purpose of creating, securing, maintaining and promoting authoritative decisionmaking and problem-solving capacity in significant and encompassing collective contexts, and these are political institutions. Typically, individual agents are linked in diverse ways to several bounded associations at any one point in time, but there is one kind of association whose purpose it is to oversee and maintain the possibility for all other justifiable associations, and to secure and maintain the conditions for basic freedom and wellbeing across every domain of activity carried out within the territorial or other jurisdiction over which it holds sway, and that is the polity, or the political architecture and its arrangements. The polity is that architecture of organisation and institutionalisation having the most encompassing range: not the furthest range, but that range best allowing oversight and coordination of all significant concentrations of activity across all significant domains and the institutions, associations and organisations linked to them. The conceptually bounded collectivity whose political architecture it is, is the political community, and its instruments of political agency, the political institutions and organisations, have purposes resolving into the provision of authoritative decisions with respect to public goods and complex public problem-solving. Where collective decision-making activity of this type stabilises practices and generates rules, as well as purposive functionallydifferentiated roles, it has become institutionalised. Central to the polity’s conceptual and moral status is its function as allocator of the primary goods of political power and political capacity, which set the terms of all other relationships within its jurisdiction and determine other, subsidiary, distributions and entitlements, and in these ways directly shape the conditions and circumstances of agency. Again, these purposes follow from the requirements of political agency. Agents’ positive concerns to mould and modify macro-contexts of choice by means of effectuating political institutions means they cannot allow such capacities to be independently constrained by those institutions. There are two points to be made here. The first is that larger institutionalised mechanisms of control, those made possible by political institutionalisation, are able to extend the freedom and control of individual agents by enabling control beyond smallscale, localised, and confined interactions to larger, more remote and complex, multiperson interactions. The second is to note that such institutionalisation does not merely extend freedom and control outward from an immediate space of action and decision, but by doing so also provides a bulwark against erosion of agency within those local settings themselves. This is because the possibilities for acting with moral agency in day-to-day personal life are embedded in and moulded by larger social, political, and economic contexts, and control in the former is to varying extents a function of and mediated through control in the latter. So participation in political control is not merely an extension of personal agency but also the precondition for it, and since agents must, as a feature of that agency, consolidate their capacities for control, in so far as personal agency has free rein political agency is also its inevitable result. Because of this, agents not only have rights of political participation but also have mutual moral obligations to

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participate politically,9 and as reasonable selves they have responsibilities with regard to the common good, which include acceptance of the burdens as well as of the rewards of citizenship.10 Hence Gewirth’s stricture that agency must be manifest as ‘participation in controlling one’s rulers, including their impact on one’s behavior’.11 Just as the supremacy of political agency does not carry over into the economy of individual agents’ role orientations, so the supremacy of that level of collective institutionalisation and organisation called the polity does not entail that it may override the basic generic rights (to freedom and well-being) of any individual. These are inviolate. The calculus of Gewirth’s moral theory is not aggregative but distributive, and it cannot endorse a good secured for many at the price of a basic harm to one or a few (and vice-versa). Despite its crucial and immense importance as the means by which agents may act morally in and beyond immediate local settings, the polity and its elements are instrumental to the generic rights (and correlative duties) of individuals, and have no moral standing independent of the purpose of upholding them.

The primary political institution: citizenship Given the above, the question arises: what is the link between political agency, understood as that aspect of individual agency oriented to purposive action in respect of the circumstances of choice so far as they are susceptible to collective influence or determination, on the one hand; and political institutions, understood as coherent, stable and purposive concentrations of rules, roles, norms and practices, on the other hand? Institutions are the means of actually effecting agency – mechanisms for focusing and bringing it as a capacity to bear on concrete, empirical, practical problems and situations. The product of political agency is an array of such institutions, at different intervals of derivation. The key institution, presupposed by all other morally justifiable institutions and bodies, is citizenship. Citizenship connects political agency to time and space coordinates, locating agency within bounded activities in a definable space of jurisdiction with territorial and social boundaries. It invests agents with the status, institutionalised capacity, and cognitive resources needed to realise their political agency, and imports their potential to craft and shape the contexts of their experiences and choices. Citizenship empowers, literally. It is the alchemy that turns the rights of individuals into the powers of political agents. In this way, it provides the possibility for universal rational agency to be embedded in particular concrete settings, and so made practically consequential. Although citizenship realizes agency, neither political agency nor citizenship presupposes or requires any particular form of embodiment. They are compatible with levels of political organisation and jurisdiction above, below, and across nation-states. Just as moral agency must, theoretically, produce political agency, so the theoretical product of political agency is necessarily citizenship. Citizenship is then the

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condition of an array of institutions related to it, and to each other, in diverse ways, and though some of their functions and purposes flow necessarily from the requirements of agency, their forms and modalities are contingent; moulded and honed by processes of social construction and historical accretion. Further, to the extent those institutions are indispensable to freedom and well-being, agents have rights to their establishment – rights of availability and of accessibility. Because their basic agency rights require contexts of active solidarity and mutuality, agents have rights to have the institutions able to deliver them. The human rights of the PGC include political, civil, social and economic rights, including to their respective goods. (Citizenship is itself one such.)12 The relevant contexts for the practical, concrete, exercise of these rights are therefore necessary conditions for selves to develop their full humanity as agents.13 In the morally justifiable (PGCcompliant) polity, political agency and citizenship working together are the master operating systems connecting and coupling individual moral agency with a political architecture. That architecture is at the same time the condition for, the exercise of, and the product of, agency; it ensures the conditions for its own and for agency’s reproduction. That is why citizenship is an institutional role: not because it is a role that is itself an institution, nor because it is a role that engages with other institutions, though these are both true, but because the role itself constitutes those institutions. As an institutional role constituting a framework of institutions (including but not exhausted by itself), citizenship is necessarily instrumental to the purposes of that framework.

Apolitical agency? Let us turn now to consider a potential line of criticism. A sceptic of political agency might query whether it is entailed by moral agency in the way I have suggested. What, the sceptic might ask, of those persons who do not count their political agency of any value? Of those who alienate their freedom? Of ascetics, and other persons whose lives are directed to other-worldly, and thus non-political, concerns? By definition agents cannot freely surrender their dispositional (i.e. structural capacities of) freedom, because that would mean a logical contradiction. If they chose to do so, they could not be agents; but if they were not agents, they would have no agency to choose to alienate. Agents not only act freely but purposively: they act for purposes they can adopt as their own, after reflection. An agent is committed to purposes including the preservation of her dispositional freedom and this purpose is a very large part of what defines an agent. For an agent to be prepared to surrender dispositional freedom would mean that at the time she made the decision (time t) she was imaginatively projecting a future time (time t1) when she would be without freedom; but since dispositional freedom (at time t) is exactly the commitment to projections of future freedom, that would mean that in imagining at time t the unfreedom of time t1 the commitment was absent. At the moment of decision, therefore, she would already have lacked dispositional freedom and, thus, agency.

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However, agents may, and often do, waive some of the occurrent (i.e. shortterm situational) freedoms of choice available to them. In principle, agents may and sometimes must give up occurrent freedoms in order to preserve or enlarge dispositional freedom. But these kinds of surrender are situationally confined, hedged about with restrictions, and the limits to their duration determinable in advance. They are also freely and knowingly entered into for reasons that preserve or extend freedom (and well-being) in a longer or wider purview. For example, airline passengers enter planes voluntarily and with an understanding of the constraints customarily involved in doing so, although these are not negligible: airline staff may direct and prohibit specific behaviours (they may, for instance, tell people where to sit and what not to drink) and even have a prima facie right to sedate individuals against their will if circumstances are such that they have reason to believe those passengers pose a danger to the continued security of the flight and to the safety of others. As well as logical contradiction, alienation of agency brings moral contradiction. Agents’ capacities are not merely of benefit to the agents themselves, but entail responsibilities to others. Agents must exercise their agency powers when others’ basic well-being or basic freedom is at stake. The ‘must’ here derives from the logical as well as moral necessity of rational agents to observe the requirements of the PGC. The rights of agency are duties, too, whose recipients are other (prospective) agents; and in surrendering agency duties as well as rights are renounced. Since persons are interdependent a general duty on agents not to remove capacities of observing specific duties to others, especially when the basic goods of those others are at stake or those others are particularly vulnerable, obtains.14 Political agency per se is a capacity, giving rise to but not identical with a set of practices: the difference is analogous to that between an overdraft facility and an overdraft. The pursuit of asceticism, or the contemplative life, or any other mode of being that is self-consciously apolitical, does not in itself make for absence of political agency, though it suggests demonstrations of its exercise may be few and far between. The other-worldly life is parasitic upon a broader stratum of this-worldly orientations, and it is no accident that the contemplative life, the ascetic life, and the aesthetic life too, have all long been associated with caste privilege. On the other hand, these experiments in living contribute to the variety in ways of life, and in this way are supportive of agency, which requires a rich and extensive palette of meaningful options. The opportunity for some persons’ political agency to lie comparatively fallow is a kind of socially valuable additive good, a luxury, maintained by exercises of political agency by agents at large.

Conclusion Conceptualising citizenship as an institutional role enables greater conceptual and theoretical clarity about its relation to the constitution and institutions of frameworks of political organization. It contrasts sharply, however, with visions of

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citizenship as the fullest realisation of human flourishing or as the authentic expression of communal mores and ethos. Such approaches conflate morals (the realm of right relationships) and ethics (the realm of the substantive good) and subsume both, to their detriment, into an overweening and hegemonic conception of citizenship. It contrasts also with the view that citizenship is a passive status instrumental to the satisfaction of private and contingent preferences. That is recipience, not agency. The alternative presently being advanced is much narrower in scope but more stringent and focused in application. The role of citizen as outlined here is instrumental to persons’ being able to carry out their mutual obligations qua moral agents. That is, the institutional role of citizenship and the socio-political institutions in turn constituted by it are mediating instruments with and by which persons meet their mutual relational rights and duties vis-àvis each other, especially in multiperson interactions. Now, persons’ possibilities of interacting with each other with moral defensibility are conditional on a structural context of democratic political authority. Citizenship is what constitutes democracy in that it specifies what has to be done to participate in the practice, or game, of democracy and without that participation the practice or game cannot exist. Citizens are the authorisers of power, and only when political bodies have been authorised by the citizenry to act, under whatever terms the citizenry prescribe, are such bodies democratic political authorities – this point will be more fully argued in Chapter 6. Without citizenship there can be no democratic political authority; without democratic political authority the conditions allowing persons to treat each other as they are morally bound to do, do not obtain. The institution called citizenship is a functional role with a purpose. Its task is to render agency operative, by transmuting political agency into capacity for collective action. Because of that its scope, standing, and ongoing achievements can be clarified and assessed. The general precept is that social and political institutions are justified to the extent they contribute to individual well-being and freedom. But unpacking the intermediate notions of political agency and citizenship permits more precise definition and specifies more closely what contribution is being made, and how. Taking these points together, they entail that the institutional role of citizenship is a necessary precondition of persons – citizens and non-citizens alike – being enabled to act morally across the full range of their actions. So citizenship is not an optional, albeit desirable, contingency, but a moral necessity. That suggests that a third primary good, the powers of citizenship, must be added to Gewirth’s two primary goods of individual freedom and individual well-being.

Notes 1 Alan Gewirth, ‘Civil Liberties as Effective Powers’, in Gewirth, Human Rights: Essays on Justification and Applications, p. 313, emphasis added. See also the discussion in Gewirth, The Community of Rights, pp. 335–47. 2 See Gary Watson (ed.), Free Will (Oxford and New York: Oxford University Press, 1982),

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for some important essays in this area. 3 Gewirth, Reason and Morality, p. 30. 4 Gewirth, Reason and Morality, p. 120. 5 Philip Pettit, A Theory of Freedom: From the Psychology to the Politics of Agency (Cambridge: Polity Press, 2001). 6 We cannot all have the individual choice of which side of the road to drive on, for example, at least not without self-defeating consequences. 7 Giambattista Vico, The New Science of Giambattista Vico (Ithaca, New York: Cornell University Press, 1968). 8 Gewirth, Reason and Morality, pp. 272–82. 9 Gewirth, The Community of Rights, p. 354. 10 Gewirth, Self-Fulfillment p. 89. 11 Gewirth, The Community of Rights, p. 316. 12 Ibid. 13 Gewirth, The Community of Rights, p. 69. 14 Hence Gewirth’s claim that where persons’ basic rights are at stake, agents are under a duty to participate in the political processes needed to supply the economic or social remedies. See Reason and Morality, p. 354.

6 Nexus, framework: constituting authority

To see how a justifiable political framework must be constituted by citizenship, we start with Gewirth’s premise that basic levels of social and political organisation are a fundamental and compelling moral imperative. In this he draws on the Kantian view that the state of nature is not an acceptable option for human beings, since its ever-present apprehension of violence displaces all possibility of leading a tolerable life.1 Without already supposing all the specific apparatus of law, the state, and so on we can see that a minimal level of social and political order requires codes or rules, sufficiently stable to orient behaviour by, which are enforceable by institutions (very broadly conceived) over (at least most) people and/or activities in a given space (usually territorially defined). In the absence of such order – that is, in ‘the state of nature’ – settled expectations of others’ behaviours could not be formed, and thus each person’s capacities to form and pursue purposes would be severely impaired. Life would not only be nasty, brutish and short, as Hobbes had it, but would be experienced as without horizon or hinterland – as an eternal nightmarish present in which one lurched from one moment of desperation and anxiety to the next. All this is to say that without minimal levels of social and political order, the conditions for purposive agency are not in place. Now, acceptance of that claim justifies political order as such, but does not establish the need for political authority, much less democratic authority. To see why order in itself cannot be a normatively adequate resting place it is only necessary to remember that Gewirth’s theory starts from a point that is normatively individualistic, in the sense that the freedom and well-being of the individual agent provide the criteria against which all social and political phenomena are to be evaluated. (This point and method are not of course unique to Gewirth: the arguments to Hobbes’s Leviathan and Locke’s Commonwealth are built along similar lines.)2 Political institutions and political power therefore exist only for the purposes of individuals’ freedom and well-being, to which they are instrumental. A

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minimal level of order is certainly necessary for these values, but it is not a sufficient condition for them; order comes in many permutations, not all of them hospitable or conducive to freedom or to well-being. Stable but unjust or authoritarian orders are hardly a rarity, alas. Stable political power is not always to be equated with political authority. Nor is authority always democratic. But so far as persons’ most basic purpose-formation and reasonable prospects of purposefulfilment go, all that is required for the maintenance of order is stable political power. To press forward from this minimalist position, we must move from Gewirth’s most fundamental characterisation of human beings as purposive to his foundational claims that agents have rights to freedom and well-being. To allow for purposiveness, order simpliciter (upheld by stable political power) is needed: but to have freedom and well-being, not just any kind of order will do. For these, especially freedom, only a certain kind of order is justified, and it is not only morally justified, but morally mandatory. As we saw in Chapter 4, Gewirth unfolded the stages of the argument for institutions able to effectuate agents’ rights to freedom and well-being through ideal types of socio-political organisational complexes having characteristic routes of normative justification. In his view, the minimal level of order is tantamount to criminal law and its enforcement, while order that is compatible with freedom and well-being involves the apparatus of democratic governance: what Gewirth occasionally calls ‘the method of consent and dissent’. Now, while his general conclusion – that if we begin from the premises of individual rights to freedom and well-being we will eventually end up endorsing the rule of law and democratic government – is convincing, it seems to me there is more that could be said about the journey to that destination. Because Gewirth does not analyse kinds of order or discuss the concepts in political theory conventionally used to explore it, he moves overly quickly from his theory’s two foundational values to a defence of a very particular historically contingent type of polity: a modern state that is liberal democratic on the input side (decision making procedures) and social democratic on the output side (substance of policy). However, Gewirth’s alighting on ‘the state’ as the appropriate institutional form for the installation of democratic procedure and delivery of supportive policy is underdetermined by his theory. That theory does motivate a good deal of organisational and institutional constraint, and shortly some of it will be alluded to. But it does not, it may be contended, lead us to the specific organisational form we know as the modern nation-state.3 Moreover though Gewirth’s arguments both for a context of order, and for that context to have certain attributes, are detailed, he does not argue explicitly why any of that needs the state, particularly, as its embodiment. The state appears, on the contrary, to be taken for granted in Gewirth’s thinking: his intellectual energy is brought rather to bear on laying out the arguments favouring one ideal-type of state over another. Though Gewirth uses the term ‘state’ to refer to the system of political authority whose attributes and justifications he is at pains to establish, his adoption of what is currently the orthodox term in the available political vocabulary carries no theoretical import: it is a trope, not a stipulation.

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The question then arises, if the theory’s working through need not have the state as its terminus, then where exactly must it lead? I contend it mandates a kind of order comprised of political institutions having two attributes: they are authoritative, because authorised by the citizens, and they are democratic, because democratic procedure is the type of authorisation most compatible with the PGC. In whatever form of political system institutions charged with making political decisions are embedded, state or non-state, they must have these two features if they are to be fully justifiable within the terms of the theory.

Authority and democracy Let us first in broad terms distinguish authority from power. Usually political authority is assumed to refer to a political body with the power to command. Thus, authority is thought to flow from power so readily as to make the two almost synonymous. But if power and authority were one and the same thing, it would be hard to see why should we bother using two concepts for them. The answer is that they are not at all the same thing. Actually, it is difficult to overstate how normatively consequential the difference between them is. Power is a capability: to have power is to be able to produce effective imperatives. Following Morriss,4 we can distinguish ‘power to’ (that is, power to effect some specified outcome) from ‘power over’ (power to affect another person or persons). Briefly, a has power over b if a can get b to do what a wants b to do.5 However, this power comes in different forms, and the most important difference hinges on the reasons why the imperatives are effective. It may be that b does what a wants solely because he is aware that if he does not, then as a result a will or is likely to cause something unpleasant to befall b. In this case the effectiveness of a’s imperative results directly from the likelihood of its being enforced punitively. Authority, by contrast, is a form of power in which imperatives are effective because the power-holder’s holding of that power is sanctioned. The person or body making the command does so on the basis of claims freely recognised and accepted by those who are subject to them, and these claims include claims about authorisation. A capacity to enforce imperatives coercively may or may not be at the disposal of the authoritative body; but regardless of that, its authority does not stem from its recourse to the instruments of enforcement but from the nature and force of its claims to compliance. In terms of the distinction between ‘power to’ and ‘power over’, an authoritative body’s ‘power to’ get things done has sources independent of any ‘power over’ others it may have. Professional authority, for example, rests both on accepted first-order claims to relevant professional expertise and, crucially, accepted second-order claims that the first-order claims are the sorts of claims that should count. For this reason, authority always incorporates power – the effective ability to get others to do what you want – but power does not always incorporate authority – the effective ability to get people to do what you want on the basis of claims to compliance freely recognised and accepted by them. Because authority flows only

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from assent that must be freely given and can at any time be freely revoked, it is always provisional. Paradoxically though, this very provisionality makes it more stable than coercive power, which must be suffered or annihilated. All this is so even though political bodies have, and are known to sometimes use, coercive means of enforcement. The degree to which they have authority as well as power is the degree to which punitive measures are exceptional. Where majorities refuse to acquiesce to the commands of political bodies, we tend to think those bodies have lost authority; and where majorities must be left in the dark, or actively deceived, or coerced in order for their compliance to be assured, we think their political institutions display naked power rather than authority. Qualifying ‘authority’ with a preceding adjective demarcates the arena within which the authority holds good (e.g. military authority, literary authority), but also enables us to infer what kinds of claims to compliance ground it – and which do not. (The pen may be mightier than the sword, but winning the Nobel Prize for Literature does not confer military authority.) The qualifier refers both to the domain of application, and also to the source or ground of the claim(s). Hence, to say that a kind of authority is political authority, is to say that it is a kind of power to produce effective imperatives within a specific arena, the effectiveness of which depends on claims freely recognised and accepted as appropriate and sufficient by those to whom they are addressed. So what specific arena are we talking about here, and what is the substance of those successful claims? The ‘political’ arena is that of political decision-making, which for brevity’s sake I will here assume to be the most encompassing arena within which values are allocated amongst a subject population at large. The kinds of second-order claims that vindicate political authority, however, will take a bit longer to untangle. First, political authority is always embodied in institutions, most of which work through corporate bodies. A political body’s assertion of political authority comprises a first-order claim that it is duly authorised to act as a political authority, that is to produce (binding or guiding) imperatives, and a second-order claim that such (‘due’) authorisation is the relevant qualification it must have. The ‘authorisation’ element presupposes that political authority is not autogenous: it cannot be ‘self-generated’ but must always appeal to something outside of itself for justification, and, because of this, authorisation always also implies accountability. However, what has been deemed to be ‘due authorisation’ has varied across time and place. When kings were held to rule by divine right, then it was thought that they were authorised by, and accountable to, God. So there are different routes to authorisation. Nowadays, however, in the developed ‘Western’ world the only path to political authority is that of democratic imprimatur. Citizens are taken to be the source of authorisation, the authorisers, and the addressees to whom account must be made, and there must be a large overlap between the citizen body and the settled population subject to the imperatives the political body will emit – if, that is, the political system is to be considered democratic. What makes political authority democratic is that the effectiveness of its imperatives depends on the vindication of claims that the political bodies producing

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imperatives are authorised to carry out this function by the people who are its objects (by appropriate means), and are accountable to the people for their performance in that function. What are the appropriate means of authorisation? Well, that is for the people themselves to specify. They may wish to stipulate that policies secure certain kinds of outcomes (e.g. effectiveness). They may wish to stipulate certain kinds of decision rule (e.g. majoritarianism). They may wish to stipulate certain forms of inclusion in or delegation of deliberative opportunities (e.g. levels of participation or representation). Democracy is a contested concept, and each of these has been advanced as its definition. The term ‘democracy’ as used here is to be understood in general terms. Amongst free populations it is not only likely that different mechanisms of democratic authorisation and accountability will be found in different contexts, but a demonstration of the exercise of freedom that this be so. On the other hand, not anything goes, and ‘democratic’ is not simply a seal of approval we can affix to any and all versions of political decisionmaking. Fundamentally, democracy is a form of authorisation, and, further, the only acceptable form of authorisation if persons are to be treated as equally free. Measures such as those mentioned above are best seen not as democracy itself but as conditions for the authorisation of political bodies, set by the authorisers. That is, they are (contingent) conditions for the democratic authorisation that turns bodies wielding political power into political authorities. And if political authority is that form of political power where its subjects freely accept its right to produce imperatives, then for democracy to make such acceptance free it must – whatever else it includes – also be highly accommodating and actively encouraging of individual rights to consent and dissent, which is to say it must be liberal. Thus though it may adopt majoritarian decision procedures, it must not endorse or promulgate the (individual freedom-denying) fiction of a general will. So this is the function of democracy: it is the means by which claims to authority are vindicated amongst certain kinds of (modern, developed) societies. But we can also say that where the values of individual rights to freedom and well-being are the criteria by which political institutions are to be assessed, then democratic authorisation is the form of authorisation most expressive of freedom and, consequentially speaking, most likely to secure and promote both freedom and well-being. There is an opportunity for confusion in this discussion that should be curtailed here. In arguing that citizens are the source of political authority in that they authorise political bodies to act (or decline to do so), I am making a claim about how to conceptualise the justification of political power, and the role of citizenship in that justification. The point is conceptual and theoretical, and does not prejudge how the granting, withholding, or withdrawing, of authority, might occur. (Therefore I am not, for example, arguing that each exercise of authority must be preceded by an express act of authorisation by each citizen.)

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Authorisation and control Effective citizenship translates political agency into authoritative institutionalisation and output. For political institutions to be democratic (as well as powerful) they must draw their authority from the citizenry and provide the conduit for continuing political agency. The conditions of free rational agency have to be met: agents must be able to control these institutions in knowledge of the relevant circumstances and by their unforced choice. Ultimately, EU citizenship and EU institutions must be judged by these criteria. Control is typically of two kinds, prospective and retrospective, and is supplied in greater or lesser degree. If the polity is to make claims to democracy it is vital that whenever it decides and acts, the source of those decisions and acts are traceable to grants of authority by citizens. Citizens must be the authors (Subjects of) as well as the addressees (subject to) of their polity’s laws. If they are not able to acknowledge themselves sources and authors of their own political contexts then the necessary ‘fit’ for democratic authority fails to hold. That fit combines the Greek dictum that those who are ruled, rule, and those who rule, are ruled, with the Roman canonical doctrine of Quod omnes tangit, ab omnibus tractari et approbari debet.6 (Citizens may of course also decline to authorise a political body or measure, or to withdraw authorisation from a body or a measure.) Without mechanisms of both prospective and retrospective control by citizens at large over the selection of persons to occupy institutionalised political roles, and also the nature and scope of what those persons are authorised to do, no control is present. Prospective control is secured by authorisation, in which citizens authorise political bodies to act (make laws, etc) on their behalf. Citizens choose whether or not to authorise, how to authorise, the limits of such authorisation and its tests, but political bodies cannot choose whether or not to be so authorised. This asymmetry is the most fundamental basis of agents’ control. Where it does not obtain then neither does democracy; the PGC and agency are violated and the political institutions are no longer justifiable. Retrospective control is delivered through the accountability of political authorities to citizens, mostly by embodiment in regimes of reward and penalty for past actions (‘throw the scoundrels out’). Of course, the force of such retrospective control depends on representatives’ tacit awareness of the probability of future penalties at the time they act, and the will to tailor their activities accordingly; so retrospective control is only possible where penalties are available and practicable, and citizens are able and willing to impose them.

Representation On the face of it, it might seem that the notion of political agency developed out of Gewirth’s theory of rational agency leads to political authorisation by the direct participation of citizens in decision-making procedures. However, this is not as strongly motivated as it seems, especially once we move from the realms of

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ideal theory to context-sensitive theory. The assumption that citizens are more likely to be able to affect eventual outcomes when participating personally (all else being equal), may hold in small decision-making forums (town halls, city states) but is almost fantastic in huge political units.7 Although advocates of direct democracy believe it a remedy for citizens’ loss of influence over decisions, the degree of influence any individual citizen has is more a function of the sheer magnitude of their numbers under assumptions of political equality, than the form of participation. If all political action involved the participation of all of the people all the time, collective problem-solving would become so unwieldy it would soon collapse under the weight of its own logistic and coordinative dysfunctions. Even Rousseau showed some awareness of this: ‘the dispatch of public business becomes slower in proportion as there are more persons responsible for it; attaching too much importance to prudence, large bodies attach too little to luck; they miss opportunities, and they deliberate so long that they lose the profits of deliberation’.8 Rousseau talks of deliberation, but in large political units, given conditions of political equality, direct participation in all public decision-making would seem to lead to aggregative rather than deliberative democracy, simply because of the obvious problems of practical, communicative and cognitive overload and complexity. The arithmetic is simply against participatory deliberative democracy under real-world constraints of time and numbers: even in a polity as tiny as 10,000 citizens, allowing each of them ten minutes to discuss one particular issue would take up 208 eight-hour days, the better part of a year.9 While citizens have obligations to participate politically to ensure PGC compliance,10 most of the time these duties may be adequately met through their control of a satisfactory representative system.11 The reasons why representation is not in principle inimical to agency stem from what is required for control, under assumptions of political equality, in large polities, characterised by social and institutional complexity. The key is to ensure the representative system really is satisfactory, and really is under citizens’ control. Where the agents collectively, consciously and deliberately choose and actively maintain satisfactory representative systems, they continue to exert control over the selection and actions of their representatives. Where they do not, de facto representatives will likely be self-selected, and rule through survival of the most self-aggrandizing is hardly a prospect to be relished. Agents have good reasons to allocate some collective political tasks to a subset of persons, with the crucial proviso that mechanisms of control of the selection and procedures of that subset by all citizens are maintained. Citizens also need to feel confident in having measures of control over political agendas, and measures of control over the ways in which those agendas are pursued and implemented. This means the legislating body (even if it were composed of all citizens) must be both responsive and accountable. In huge political jurisdictions both these requirements are likely to be better served by there being a limited number of persons institutionally authorised to be responsible for these tasks, especially given imperfect information and bounded rationality – citizens’ cognitive capacities will be more efficiently exercised where demands on them are

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not overwhelming. However, there is no reason in principle why a representative system should not have zones of direct democracy incorporated into it; on the contrary, arguments from the freedom criterion (especially) favour more direct input by citizens, and the importing of substantial and significant elements of direct participatory democracy in the EU has been argued for.12 Representative systems could be made more participatory than they usually are by raising the proportion of citizens choosing to make use of existing participatory devices, deploying existing devices across a wider range of issues, and expanding the set of institutional mechanisms for direct participation.13 Authorised political representatives are accountable to citizens for their performance in institutional tasks. That the institutional role of political representative has functional purposes14 does not mean that it can lay claim to ethical role autonomy.15 Neither the specific form taken by an institution nor the specific modes of its operation are entailed by the justification of the institution’s existence as such; so, far from having a carte blanche in the ways they go about effectuating control of social contexts, representatives are constrained by the requirements of morality set by the PGC.

Authoritative representation Clarification of what kind of political body counts as politically authoritative will be useful here. Not all kinds of representation are authorised through the political agency of citizens, because representation takes place in non-political spheres too – the engaging of a barrister or solicitor in legal affairs, for instance. However, even where something recognisable as representation occurs within a political system it may not count as politically authoritative representation. This is because there are kinds of activity in which representatives may be describable as political actors, and may engage in semi-formal activity that is politically consequential, but they are not intrinsic to the constitution of political authority and political legitimacy as such – for example, the representatives of socio-economic forces (industry groups, trades unions, NGOs) who participate in policy-making activity, or administrators and public officials of executive bodies. These persons may act as representatives, and do so in political forums, but they precisely do not occupy that institutional role of politically authoritative representative elected by the citizens whose function is to project their agency and in doing so, contribute to the legitimacy of the overall arrangements. Certain kinds of representation are an institutionalised fettering of power so as to make it into authority, and this is because the positional roles and the hierarchy of authority thus constituted are in place by consent of all political participants (citizens), periodically refreshed or withdrawn, 16 and operating in circumstances where dissent is always a real option. A system of representation is also a system of authorisation and of accountability; representatives are authorised by political agents to act (deliberate, decide) on their behalf, subject to qualification, and are then held accountable for the exercise of that authority and its results.17

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Only representatives selected through procedures authorised by citizens (usually, by direct election), as such authorised representatives, or citizens themselves in a system of direct democracy, are authorised in this way, or can be held accountable to the citizenry. What distinguishes such politicians as politically authoritative is the institutional location of their role in the larger scheme of things. Representing the authority (agency) of citizens within the organs of government functionally dedicated to representation is their primary and predominant function. Above all, politically authoritative representation is always provisional in principle. This stems from agency’s need for it always to be the case that matters could have been otherwise; the institutionalising of opportunities for citizens’ consent and dissent – and that there are opportunities for both needs to be constantly demonstrable – means politically authoritative representatives must always be susceptible to peremptory dismissal by the citizenry. Where political actors are not vulnerable in this way, they have not met one of the conditions for the wielding of political authority and are not politically authoritative representatives. Politically authoritative representatives as I have described them delegate tasks and powers to officials and experts of various sorts in administrative and technical bodies. These bodies often have a fair degree of decision-making discretion, and may themselves emit rules and commands, but within limits and objectives set by the political authorities. These bodies and their personnel do not themselves enjoy authority, but wield by proxy the authority of another body that does, because it has had primary authority conferred directly by citizens. Delegate organisations of this type have no independent source of authorisation. One important upshot of this is that neither expert nor functional representation should be conflated with the politically authoritative representation of citizens in a democracy. As far as political agency is concerned, in both these arenas no political authorisation takes place, and therefore no politically authoritative representation either. The leaders of groups in civil society are, quite properly, advocates for special social interests, and administrative officials receive what freedom of political action they have by delegation from another body which does itself enjoy genuine political authority. Neither of these kinds of actor counts as a politically authoritative representative within the justification of political power outlined.

Boundaries In a crucial respect, agents’ duties to others are not continuous with their powers as citizens. There is a disjunction between the institutional space in which they can authorise action, which is that of the jurisdiction they constitute, and the space in which they are related to other agents through interactive effects, which is that of the world. Citizens’ political responsibilities therefore extend not solely to all persons on the territory over which the political bodies they authorise have jurisdiction, but beyond, extra-territorially, insofar as they (and their political institutions) interact with persons outside that territory, and they are responsible for the effects of that interaction on those outside the territory. These duties are

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no lighter for being only broadly defined or reluctantly acknowledged. Citizenship delineates political responsibility rather than privilege; citizenship is not in itself the statement of, or ticket to, special social or moral entitlement. Instead, citizenship’s social boundary picks out that body of agents whose political agency is authoritative within a particular specified jurisdiction. Within the territory of their polity, citizens ought not to enjoy exclusive access to a wide range of social or political goods; the conception of (PGC-compliant) citizenship presented here is not the charmed circle separating the haves (citizens) from the have-nots (non-citizens). Citizens’ duties are not restricted to fellow-citizens, and the boundaries of citizenship are not those of the polity’s beneficiaries. The most basic task and purpose citizens have, as citizens, is to ensure that the jurisdiction for which they, the citizens, are responsible, is a zone of respect for all persons’ basic rights to freedom and well-being, and is therefore a space in which the conditions for all agents, as human beings, to act morally with respect to one another are in place – for citizen and non-citizen alike. This is because so far as the political institutions are justified it is by universalist criteria, and these bear on the freedom and well-being of all persons: in any jurisdiction, a group larger than the citizenry. The polity and its institutions exist to promote agency simpliciter. In substance doing so will involve a framework of law and order to regulate interactions, a macroeconomic arena in which a wide range of opportunities for productive agency and the activities of supply, demand, and exchange are effectively present, and a society whose members (citizens and noncitizens alike) are interlocked in mutualist relations of positive recognition and respect.20 Ensuring all this will in turn require the upholding and reproduction of the institutions of effective governance, and citizens should expect to contribute the resources needed (some time, some attention and some effort as well as some finance) to create, maintain, and steadily improve political institutions. Citizens may contingently have benefits, but they necessarily have burdens – because their role functions ultimately as guarantor of the normative standing of the political authority they constitute, and they are responsible for its effects on all persons, including non-citizens, subject to those effects, and whether those persons are present in the territory of jurisdiction or outside it. Insistence on the theoretical and conceptual distinction to be maintained between citizen and non-citizen within the territory of jurisdiction does not imply social or status distinctions between them in terms of access to public goods and services, nor does it imply restricting access to the legal status of citizen. These are policy decisions that are underdetermined by the theoretical distinction established. In so far as the theory and the conception of citizenship developed here suggests policy content, then they suggest that within the jurisdiction of the polity all inhabitants have equal rights to freedom and well-being and should therefore receive equal consideration by political institutions. While citizenries must retain the rights to decide whom to admit to their number (else their political agency is overridden), their recognition of non-citizens’ generic rights should prompt them to adopt socio-economic policies that do not discriminate between citizens and

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non-citizens in ways disadvantageous to non-citizens, as well as liberal policies and procedures enabling as much freedom of movement between citizenships and maintenance of multiple citizenships as is compatible with the upholding of citizenship’s broader purposes. When persons’ rights to freedom and well-being depend on institutions that are not yet in place, then its citizens are duty-bound to establish them. The task of reflecting on and revising institutions is constant where government is democratically authoritative, and where departures from the status quo are needed agents will ensure that moral duties do not fall by the wayside for lack of institutional inventiveness or courage. To take seriously moral rights, and their full implications for a social and political order able to nurture them, is to expand understanding of what rights require far beyond the immediate focus on whether (and which) rights should or should not be codified in law, into consideration of what kinds of institutions might need to be created, which ought to be reformed and how, and whether there are existing institutions that would be best dismantled. Under conditions of freedom persons are likely to generate social complexity, and institutional effectiveness under conditions of modernity is likely to require institutional complexity. If dominant organisational forms are no longer optimal for freedom and well-being, then new forms of political organisation must be developed and supported. To recur to Gewirth’s theory, citizens-in-role must have a concern for the acceptance of the PGC not merely cross-spatially (within their jurisdiction and beyond) but also, and crucially, cross-temporally.21 They attend to this especially by embedding self-reinforcing mechanisms that preserve the conditions of citizenship and thus the entire framework of justifiable political authority that it constitutes.

Locating political authority Previous discussion of political rule-making capacity at supranational level has been mostly classificatory rather than substantive, turning on how best to characterise the form in which it is embodied (is the EU or is it not a superstate?) The assumption appears to be that if we can arrive at a correct (or agreed upon) classification of what kind of beast something like the EU is, we can then deduce what it should and should not do. But this, as I hope to have made clear, is to put the cart before the horse. From the premises of universal rights, justifications of political institutionalisation are entirely instrumental. Arguments for any particular formation of political rule are constructed in the light of their contribution to values such as freedom and well-being, and if it turns out that other kinds of polity are needed as well as or instead of the state, we can and must still use the same underlying instrumental argument. In principle Gewirth’s theory is as valid for and applicable to non-state configurations of political authority as it is for states. What are of prime relevance are the underlying arguments that may or may not support particular compositions

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of legitimate political authority.22 The core theoretical argument is to the need for a certain specification of political authority, namely, political authority guaranteeing a determinate range of basic rights (i.e. capacities) within a determinate territorial zone. In principle any one of an array of political forms might meet that criterion. The formal relationship between political authority and individuals’ generic rights is the same at whatever level of political organisation they are pitched: whether national or subnational or supranational. However, just because such justifications must refer to the stakes of political authority – what goods are supposed to be secured by it – theoretical implications for the apparatuses and practices of that authority do flow from accepting it as authoritative. In short, such authority must be democratic and exercised in accordance with constitutional norms guaranteeing fundamental rights and freedoms and the rule of law. Just as the state’s purposes – tasks, activities, functions, and the reasons for them – can be resolved into (and can only be justifiable as) contributions to the securing of persons’ generic rights, so too are those of the EU. Let us remember that particular configurations of political authority are historically contingent. There is no good reason to fetishise the state. At issue here is not the empirical question of what the EU can be demonstrated to have succeeded in doing, but rather the theoretical question of the shape of the justificatory strategy relevant to it – we need to establish whether the justifying arguments offered, and generally accepted as required, for the EU, resemble those we are more familiar with in other (i.e. state) contexts. An overall justificatory strategy of the type required might, for example, show that for all its members the EU provides a context of order, a context of sustainability, and a context of aspiration.23 It appears that many of the considerations generally registering as the purposes of and for the EU are exactly those more usually agreed to provide compelling reasons for the establishment of enforceable political authority as such, whether in the state or commonwealth or anywhere else; and the moral considerations and theoretical tools available to deliver accounts of justifiable internal organisations of authority and competence between the various levels and sites of the political structure are the same as are deployed with respect to the state or any other functional equivalent. Since the structures and workings of that apparatus of political authority, in whatever organisational form it appears, must be consistent with considerations counting within such a reasoned defence, so the kinds of arguments advanced to justify the EU as a political project will constrain and shape the constitutional structure and political process defensible within the same rationale. Therefore, the EU must (if it is to be justified) be constituted as democratic authority, which means that citizenship, channelling political agency, must be pivotal within its framework of political organisation and institutions.

Conclusion: liberating function from form? Citizenship is not an existential status but an institutional role having specific functions. That role can only be made sense of and normatively defended through

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consideration of its location within a comprehensive account of political power, authority, and democracy. In showing how citizenship and democratic political authority are conceptually essential to each other, they become mutually constitutive components of one overarching analytical and justificatory framework. This nexus of citizen and polity stands prior to and independently of any particular form of political organisation (including the modern nation-state), but is applicable to all of them. It is not the simple transposition of state-like citizenship to other state-like units. Quite the reverse; in fact, the analysis discloses a logically prior and thus more fundamental way of understanding political entities and relationships. That way of conceiving of politics is so basic it underlies current accounts of state and state citizenship as well as their rivals, and whatever normative attractiveness statehood and state citizenship currently enjoy derives from their nominal incorporation of the citizen-authority nexus sketched here. Where it is absent, states are merely repositories of political power or undemocratic authority, and ‘citizen’ is just the self-deluding rhetoric by which subjects are known. This makes citizenship the test of democratic political authority, and means the quality of EU citizenship tests the EU’s democratic credentials and its claims to individuals’ compliance with its rules. In conclusion, this chapter turned the customary assumptions regarding political authority in our standard theories of political obligation upside down. Those assumptions essentialise and rigidify its form (assuming a ‘state’), but are overly permissive about its practice. The state is taken for granted as political landscape, but allowed too much leeway in how it might project its power, internally and externally. The present account, in contrast, posits an array of levels of political organisation that might all, in principle, lay credible claim to political authority, but constrains the permissible range and modes of its exercise. At whatever level of political organisation it is located, if political power is to be made legitimate and authoritative it must do the things the PGC demands, and not do the things it prohibits. Whereas the well-being component of the PGC compels, morally speaking, political authority to provide the material conditions necessary for basic individual well-being and purposive capacity, its freedom component means that political authority must be – can only be – constituted by citizenship. To repeat, political power that is wielded inconsistently with agents’ having the fullest possible opportunities to consent and dissent to, and thus authorise and exert collective control over, the organisation and programmes of that power, is not authoritative but coercive.

Notes 1 Kant, The Metaphysical Elements of Justice, pp. 71–7; Kant, ‘On the Common Saying: “This May be True in Theory, but it Does Not Apply in Practice”’; Jeremy Waldron, ‘Special Ties and Natural Duties’, Philosophy and Public Affairs, 22:1 (1993) 28. 2 Thomas Hobbes, Leviathan (ed. C. B. Macpherson, London and Harmondsworth: Penguin Books, 1968); Locke, Two Treatises of Government.

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3 Indeed there may be some room for argument whether that form is even consistent with his theory – though I defer that to another occasion. 4 P. Morriss, Power: A Philosophical Analysis (Manchester and New York: Manchester University Press, 2002, 2nd edn). 5 Note that we cannot infer power is present if, quite coincidentally, b for reasons entirely unconnected with a wants in any case to do what a wants him to do. 6 ‘What touches all should be considered and approved by all’ – Bernard Manin, The Principles of Representative Government (Cambridge: Cambridge University Press, 1997), p. 87. 7 Following Dahl’s, ‘A Democratic Dilemma: System Effectiveness versus Citizen Participation’, pp. 23–34. 8 Jean-Jacques Rousseau, The Social Contract (trans. Maurice Cranston, Harmondsworth, Middlesex: Penguin Books Ltd, 1968), Book III, Chapter 2, p. 109. 9 Dahl, On Democracy, p. 107. 10 Gewirth, Reason and Morality, p. 354. 11 And where this is not the case they must intervene, directly if necessary, to put matters to rights. 12 An early call came from Vernon Bogdanor and Geoffrey Woodcock, ‘The European Community and Sovereignty’, Parliamentary Affairs, 44 (1991), p. 492, though they are clear that direct democracy should supplement and not replace representative institutions. 13 Weale, Democracy, pp. 88–9. 14 Suggested by Birch to be popular control, leadership and responsibility, and system maintenance, in A. H. Birch, Representation (London and Basingstoke: The Macmillan Press, 1972), pp. 106–23. 15 Alan Gewirth, ‘Professional Ethics: The Separatist Thesis’, Ethics, 96 (1986), p. 299; Beyleveld and Brownsword, Law as a Moral Judgment. 16 Gewirth, The Community of Rights, p. 271. 17 The connection of authorisation and representation is sometimes associated with Hobbes. See the discussion in Hanna Fenichel Pitkin, The Concept of Representation (Berkeley and Los Angeles, California: University of California Press/London: Cambridge University Press, 1967), Chapter 2; and Birch, Representation. 18 Mill’s Considerations on Representative Government is clear on the fundamental distinction between elected representatives and public bureaucrats. 19 This useful distinction can be found in Kincaid, ‘Confederal Federalism and Citizen Representation in the European Union’, and Thomas D. Lancaster, ‘Complex Self-Identification and Compounded Representation in Federal Systems’, both in West European Politics, 22:2 (1999). Both contrast ‘authoritative representation’ with ‘consultative representation’. 20 Gewirth, The Community of Rights. 21 This accords with standard accounts of political community, which usually note its resilience as social construct over time despite a constantly changing membership, as in Weale, ‘Citizenship Beyond Borders’; Canovan, Nationhood and Political Theory; Miller, On Nationality. 22 This view, or one like it, commands a body of agreement. See MacCormick, ‘Democracy, Subsidiarity, and Citizenship in the “European Commonwealth”’, p. 339; Beetham and Lord, Legitimacy and the European Union, Chapter 1; Lord and Beetham, ‘Legitimizing the EU’; Patrick M. Twomey, ‘European Citizenship and Human Rights: Actual Situation and Future Perspectives’, in Marias (ed.), European Citizenship, p. 128; Stone, ‘What Is a Supranational Constitution? An Essay in International Relations Theory’. 23 Glyn Morgan’s The Idea of a European Superstate: Public Justification and European Integration (Princeton, NJ: Princeton University Press, 2005) reached me as this book went to proof, so regrettably I cannot discuss its argument about the form and content of a suitable justification here.

7 Agency, authorisation, and representation in the EU One of the core questions of EU citizenship is whether it can be substantive and not merely formal. For it to be so it must be capable of embodying political agency, and that means that the supranational institutional framework that it constitutes in theory must be capable of demonstrating dependence on agency in actuality. In the EU these matters are often anything but limpid, but we will maintain our bearings by never losing sight of the crucial distinction between authority and power. This chapter does not attempt a comprehensive survey of the EU’s democratic deficits1 or address directly the debates about whether they matter.2 It takes a step back, so to speak, to a normatively and conceptually prior question – the status of supranational authority as constituted by the relationship between citizens and supranational institutions. Does the nature of that relationship embody an understanding of political actors as functionally subordinate to citizens as authors? At present, the official EU understanding of the relationship between institutions and citizens may be precisely opposite to that required by political agency. Indent 1 of Article 46 of the 2004 Constitutional Treaty (‘The Principle of Participatory Democracy’), for example, says ‘The Union Institutions shall … give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action’. But in a system of democratic political authority it is not for the institutions to grant citizens the opportunity to discuss what the institutions are up to, as if they were conferring a boon! What the institutions must do is justify their actions, openly and constantly, to the citizens. Since EU citizens qua citizens are not represented by national governments, and theoretically speaking the role of the EU citizen is to authorise at supranational level, this chapter looks at agency at three ‘moments’ of authorisation: the formation of a collective authorising subject, the location of authoritative representation, and refusal to authorise.

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Knowledgeable unforced choice To begin to identify what features need to be looked for, to see whether opportunities for agency are in place, let us recur to the conditions of agency as such, noting first the basic premise of formal equality between all persons enjoying minimal levels of inductive and deductive rationality. The conditions of political agency are three: (1) control of behaviour, (2) in knowledge of relevant circumstances, and (3) by unforced choice.3 The second of these, knowledge, is itself a precondition of the other two conditions: without such knowledge there can be neither control nor unforced choice. The three generate benchmarking criteria for the collective institutional level. When it comes to ‘knowledge of relevant circumstances’, ‘knowledge’ is to be interpreted widely to indicate not just the receipt of information but also capacities of receptiveness to it – the underlying skills and background knowledge required in order to absorb and reflect on new data, to think. Citizens should be reasonably well informed about the nature, load and scope of problems presenting themselves for collective action, at least on some topics, some of the time. The degree and quality of agents’ knowledge about the structures and processes of the polity itself are also important. Citizens will need a fairly clear sense of the actors, the institutions, and the mechanisms linking these components to authoritative political outcomes, whether those outcomes are cashed out in terms of policy contents and laws or in terms of the structure of political authority itself. Part of each agent’s knowledge consists in understanding how they themselves come into the picture: having some purchase on the opportunities and responsibilities of their institutional role as citizen, how it connects with their primary role as individual moral agent, and its linkage with the yet more functionally-specific institutional role of representative. Without settled and known frameworks of norms and the legitimate expectations to which they give rise persons are unable to frame and pursue substantial purposes. The ‘unforced choice’ criterion breaks down to two requirements – that there be choice available, in other words a range of alternatives from which a selection can be made; and also that such a selection be made freely. Clearly a choice is not unforced when it is made under conditions of duress, even if one would have settled on the same option in the absence of such force. (The point is not that one’s selection alights on the option most preferred, but that it was made under conditions of imposition.) There are also more hidden forms of ‘forcedness’. The range of options might be unreasonably restricted; it may be that all the alternatives bar one are intensely undesirable, meaningless, or harmful, so that the freedom of that choice is more apparent than real; it may be that the nature of the options is self-serving or oppressive. Similarly, for choice to be unforced it must not be founded on deception or fraud,4 and for Gewirth this means not just the negative duty to refrain from active deception; it also means that accurate information on which to make the choice must be supplied to the chooser, if such information is available but not (yet) held by her. Agents have positive duties to

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provide information to recipients to enable them to interact on more equal terms,5 and institutions have the same duty in respect of citizens. An important function of citizens is relating knowledge to authorisation via general societal agenda-setting. Establishing what counts as an issue or problem, framing it, and ranking its salience, ought to take place among moral agents in the discursive spaces of the public sphere, so that the citizenry does not find itself ‘voting on issues already formulated in concepts and terms over which it has exercised no control.6 Citizens and non-citizens should be participants in this kind of will-exploration and will-formation, though agency further grants individual agents a large degree of freedom in choosing how and when to participate in this way.7 To translate this into the language of Gewirth, collective outcomes should be ‘the result of a democratic process of discussion, deliberation, and negotiation in which arguments pro and con are carefully considered by the electorate’.8 A number of suggestions for reform of the institutions and practices of political agency in the EU have been made. They include: citizens’ legislative initiatives;9 an interactive Web network for information and political participation10 and electronic voting;11 deliberative opinion polls;12 enriched information; more openness and transparency with regard to the gathering and disseminating of information; more notification of and consultation about policy proposals and decisions, by way of Eurobarometer, Green and White Papers, parliamentary hearings, the news media, and internet;13 referendums on specific legislative acts; repeat mandatory referendums triggered by each ‘constitutional’ change;14 staged referendums within a single constitutional process to decide alternative prospective constitutions with different mixes of competence, scope, and membership;15 parallel conventions and parallel referendums on competing constitutional options;16 and a scheme for ‘proportionately proportionate voting’ in the EP logged to extent of member state competence subscription and size of population, in combination with states organised into a set of colegii per relative population and allocated voting weights proportionate to the square root of that relevant population within limits set by lower and upper thresholds.17 These are prerequisites of, or adjuncts to, citizen activity within a representative system, rather than partial or complete substitutes for it. Parliamentary representation of the EU citizenry has its home, in name at least, in the European Parliament. As early as 1979 the Court declared ‘the fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly’.18 As it stated in its May 1995 Report for the 1996 Intergovernmental Conference, ‘it is in the Parliament that Population is represented. Council represents States’.19 In a very diffuse way, the fortunes of the Parliament are viewed as a barometer of the EU’s standing as a democratically authoritative political order.20 When working as it should, a parliament is an arena where issues of public importance can be aired and debated in a coordinated manner, and a legislature where contexts of action are shaped and patterns of distribution of freedom, wellbeing, and political power arrived at.21 There are two stages in the chain leading from popular demands, public opinion and so on (the raw materials of the political

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process) to determinate political outcomes cast in terms of the rounder projects we call policies and the prescriptive instruments we call laws. When both stages are sufficiently in place and operating satisfactorily it should be possible to track the political agency of citizens from their initial exercises of free choice through the wielding of effective powers, by way of representation of those powers, to their reshaping and reformulating of the contexts and circumstances within which their future choices will obtain. There must be a clear connection between the contours of agents’ collective choices and the composition and balance of representatives, and the overall programmatic profile represented by representatives should not be dissimilar to the preference orderings freely expressed by the electorate at large. If it is, there is something awry. Secondly, representatives’ institutional behaviour must consistently lead to political outcomes that are recognisably those choices and states of affairs citizens have authorised. (These have been called the ‘electoral linkage’ and ‘elite coherence’ conditions.)22 One very basic condition for agents’ control of representatives is the absence of representatives’ control of agents. The EU must avoid a political dynamic whereby persons are managed with placatory politics by a ‘supervisory state’.23 The prime means of guarding against this is for the organs of representation to be sensitively attuned and responsive to, as well as periodically recharged or dismissed by, agents. Such responsiveness needs to be institutionally embedded in a regime of political incentives, and their manipulation of incentives to maintain adequate responsiveness by representatives are amongst citizens’ most important mechanisms of direct control over their political destinies.

No collective subject? That such a process could take place in the EU is challenged by the ‘no demos’ thesis which says (as we recall) that cultural, social, and ethnic diversity, combined with entrenched national identifications, preclude the shared values, common motivations, discursive infrastructure and affective bonds upon which both the strategic bases for mobilisation and voters’ willingness to mobilise depend.24 There is no transnational public opinion on which they can capitalise; hence the necessary conditions for the springing into existence of ‘European’ political parties or similar groups able to deliberate and aggregate transnationally are, it is hypothesised, absent. Much of what is said about cultural heterogeneity and ethnic identities in the EU, irrespective of its analytical or descriptive soundness, is not all that theoretically consequential for politics.25 Citizens’ political engagement at EU level is said to be overwhelmingly instrumental (related to ideology and issues) rather than affective (related to ascriptive identifications).26 If so, that would be one reason why the lack of a demos need not be the obstacle to engagement it is often assumed to be. As to the supposed lack of a public sphere, the allegedly insuperable language barriers, national media capture, and so on, do not appear to hinder the political, bureaucratic, and business elites in the EU from making themselves

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understood or acting with common purpose – why should they be so readily assumed to inhibit everybody else? As will be argued in Part III (an argument partly prepared by Part I), politically relevant identifications are constituted by the willingness of persons to see themselves in certain ways, together with practices of political cooperation, through common institutions, and around common purposes, and there is no bar in principle to a functional political identity oriented to the EU level taking its place alongside persons’ other (several) identities.27 What the satisfactory democratic working of EU institutions needs is not a ‘demos’, if we are to understand by that a pre-existing people sharing a thick ethos or culture. On the other hand, if all we are to understand by ‘demos’ is an electorate, then the EU quite evidently already has one. No, what the EU needs is a citizenry: persons acting appropriately in their institutional political role, which is a role different to those persons hold as members of a civil society (national or supranational), or as members of a national or ethnic ‘people’. As to empirical indications that appropriate social features are in place, Beate Kohler-Koch’s research on integration as social process indicates ‘there are widely shared belief systems spanning national boundaries’ in the EU,28 and transnational networks and national systems share ‘a Europeanised political space’.29 John Gaffney has identified a range of European-level political discourses, and suggests it is these discursive exchanges around common purposes that will legitimate further integration.30 A high degree of agreement exists among (a dispersed majority of) voters on the political priorities of the EU; Dalton and Eichenberg for example finding majority support for EU action across policy areas dealing with the external environment or on classic interdependence issues.31 A chief finding of Franklin and van der Eijk’s EU-wide study of the 1989 and 1994 European elections was that ‘national boundaries do not appear to have any particular significance (independent of electoral system, party system, and the like) in dividing up what turns out to be a single European electorate. Europeans may speak many languages, but they evidently use the same forms of discourse when talking about politics.’32 Amongst EU citizens or prospective EU citizens there are already examples of transnational political action, interestingly, taking a variety of forms. The surge of the Greens in 1989 was a major transnational phenomenon and arguably the first where the national parties had a very much higher profile and more credibility as transnational actors than as national actors. In the decommissioning of the Brent Spar oil storage platform, a cause célèbre of 1995, successful transnational direct action (a consumer boycott) organised transnationally by a NGO succeeded against a corporate body (Shell) and a member state government (the UK). A different example of EU-wide action was seen in the fuel blockades in the UK, Poland, Spain and elsewhere in autumn 2000, when a national protest directed at a national government by a particular group on a particular issue was quickly taken up by their counterparts in other member states, generating a wave of ‘copy-cat’ protests across one state after another. The ratification referendums and especially the ‘no’ vote against ratification of the Constitutional Treaty by voters in France and the Netherlands in May 2005 focused all of Europe’s attention, and

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galvanised discussion that did not obey national boundaries – for once, European populations and their elites felt that whatever kind of a mess it was, it was a mess they were all in together, and citizens, their elites, and the media alike reached out to discover what their counterparts in other states were saying about it all. Perhaps transnational communicative networks are not only not impossible but bring a helpful fluidity of discourse to the critique of transnational public affairs, and may even be a discourse having greater influence on outcomes given the present unconsolidated nature of the institutional ‘hardware’.33 In sum, they may not comprise the fabled demos, but EU citizens appear capable of acting as collective political agents when they want to.

Unauthorised ‘representation’? Perhaps we can be sanguine about the outlook for popular mobilisation in the EU, but the prospects that it will eventuate in democratically authoritative governance look less favourable, in part because institutional understanding of the linkages between citizenship, power, and authority, is inadequate. In the 2004 Constitutional Treaty, the Title dealing with ‘The Democratic Life of the Union’ appears confused both about the concepts of participation and representation and democracy, and also about the appropriate roles within a democratic system of the various kinds of institutional and non-institutional actor – as its odd inclusion of ‘representative associations’, by which it means special interest groups, and the references to the Commission’s consultation practices, betray.34 This is but the latest hint that at the heart of the integration project is a set of misconceptions about what democratic authority requires. (And I cannot resist stressing the point that such misconceptions would be harder to make if political arrangements were assessed in the light of ideal theory rather than against what are believed, on questionable foundations, to be other empirical instances of what ideal theory prescribes.) The language of representation, participation, and democracy is often used, incorrectly and illegitimately, in discussing the standing or input of civil society actors and public officials of various sorts in the EU’s policymaking circuits. This is especially so in relation to the large village of policy actors engaged in consultation or negotiation with and around the Commission, and with respect to phenomena such as ‘comitology’ and the ‘open method of coordination’,35 both of which raise important normative issues of transparency and control in a very direct way. The Commission itself fosters this way of seeing matters; its 2001 White Paper on Governance made much of its plans for wider consultation and participation with civil society and sub-national actors,36 and claimed its proposals would enhance both democracy and legitimacy. As many commentators pointed out37 they are unlikely to do either, though they may well make EU policymaking more effective. If so, that would be a first-best and not a second-best outcome, because publicly-appointed officials in the Commission and Coreper38 are not political representatives of the citizenry themselves, but instead are executors of those representatives’ will. Officials’ business is efficient and effective administration in

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areas that have been delegated to them by the political authorities that are the political authorities because they have been authorised directly by citizens. This applies even where the administrative body has, formally, a role that is politically weighty and allows room for entrepreneurial and opportunistic manoeuvre, as has the Commission. Perhaps even more worryingly, the legality of policy arrived at through existing corporatist practices is beginning to be challenged in and adjudicated by the Court on the grounds and in the language of democratic representation. A recent case39 bore on the issue of whether the particular ‘social partners’ with whom the Commission had agreed various measures of social policy were sufficiently representative: but representative not of the specific functional interests one might have thought they legitimately represented, but of the citizenry at large!40 The degree to which such officials’ mode of working is deliberative makes not the slightest difference to their democratic credentials. Philosopher-kings and enlightened despots deliberate, too; indeed, as Weber reminds us, pre-democratic patrimonial rulers took care to be collegial.41 Deliberative modes of interaction within a supranational setting take place within small groups of persons institutionally located within functional roles – Eurocrats in the Commission and Coreper, parliamentarians, and other experts. This is not participatory democracy, and except in the Council and the Parliament it is not politically authoritative representation either. The internal procedure described as ‘deliberative supranationalism’42 in expert and administrative groups may be defended on grounds of propriety or efficiency or effectiveness, but it is not an indicator of democratic virtue. The working of non-elected bodies should be assessed by criteria of probity, efficiency, effectiveness, and accountability, but not democracy. However laudable from the perspective of administrative excellence, democratic authority simply cannot emerge from deliberative processes among experts, a productive interface between a lively civil society and a responsive bureaucracy, efficient regulatory bodies, or the executive’s effective problem-solving output – nor any combination of them. Personnel appointed to public posts by democratically authorised politicians to carry out tasks assigned by those politicians – politicians in their roles as the authorised representatives of the citizenry – should not be encouraged to think of themselves as being representatives, nor of having representative functions. The arrogation of authoritative representation by administrative actors or special interests breaches each of the three conditions of political agency (control, knowledge, unforced choice). Doubtless it owes more to conceptual cock-up than to conspiracy, but such arrogation is improper and pernicious, and to be rejected by every agent. It is precisely public perceptions of these anti-democratic features of the so-called ‘Monnet method’ of the EU that have catalysed the current normative and constitutional suspicions.

Non-authorisation? Agency involves permanent institutionalised capacities for citizens to consent to, and dissent from, determinate proposals for action. Heidrun Abromeit has offered

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a provocative account of how dissent (or the refusal to authorise) might be constitutionalised in the EU.43 As her work calls for direct group participation it might seem straightforwardly compatible with my idea of political agency and my construing of this in terms of authorisation. It should be noted also that Abromeit’s concern, if I have understood it correctly, appears to be the possibility that policies agreed at supranational level might affect previously-agreed balances of power internal to member states, either constitutionally ordered relationships between levels of government, or institutional relationships of a corporatist kind. If that possibility is indeed what motivates her analysis, it does engage the PGC, since it suggests that an interaction (which we presume to be PGC-compliant) between agent and recipient may be undercut by that agent’s interaction with a third party in ways that disadvantageously affect the original recipient, without that recipient being able to participate in the secondary interaction; and if so, there may well be an issue to be addressed (theoretically as well as practically). Despite this, aspects of her proposals do not square with the theory of supranational citizenship, and it may help to develop its definition of political agency and citizenship to explore the reasons why that is so. Abromeit’s idea is this: ‘when an EU policy has been agreed upon by the existing policy-making set … [regional and sectoral groups] … will have the right to contradict it if a (qualified) majority of their members decide against it in a referendum. In such a case the region or group would not “opt out”; instead the policy would not be adopted at EU level, but whatever issue it was would be dealt with separately by the member states.’44 By regional groups Abromeit means the subunits of the federalist member states, plus state subunits without autonomous status, at the grant of ‘their’ member state.45 To mount an effective veto such a region would need a double referendum – initiators first, by qualified majority, and if that succeeded then the regional population, by simple majority.46 Sectoral groups are harder to define. They are marked by their ‘collective identity’47 and their intense preferences or strong feelings of ‘shared risks’, both of which, Abromeit believes, ‘should entitle them to veto adverse policies’.48 A starting point might be the inclusion of interest networks and their latent, mobiliseable, reference groups.49 Anyone able to mobilise a (defined) quorum should be able to initiate a referendum in pursuit of regional rights; ‘organised groups (or parts of those), including NGOs’ should be able to initiate a referendum on a matter of sectoral concern;50 and simple majorities should suffice for sectoral vetoes so long as they are transnational. In other words, once something had been agreed by ‘the existing policy-making set’ (that is, the elected representatives in the Council and the Parliament, together with the relevant administrations), a particular sub-national group or interest group would be able to veto its adoption at EU level. One difficulty with this is that it displays some of the pathologies of representation and accountability discussed in the last section. Read carefully, it is apparent that in effect all that is needed for a set of persons to meet the qualifying criteria to be considered as a group able to trigger veto rights is that they disapprove of the measure at issue. The vagueness of the criteria for group identification

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would allow peremptory action from pretty much anyone, since all they would have to do is assert a perception of shared risk. The reward of veto power to this kind of group formation would provide the incentive structure for the emergence of new cleavages and mobilisation of special interests, as well as consolidate existing cultural and ethnic cleavages and interest lobbies. The EU’s public policy and constitutional arrangements would be driven by localised and contingent political pressures, and as a consequence the levels of policy integration required for even basic levels of coherence, equality, and fairness, might be placed beyond reach. If it is hard to see why such groups should have this right while others do not, it is even more questionable that they should have powers that are so far-reaching at all. The purposes of the measure are essentially negative rather than positive – preventing action, rather than getting things done. The proposed veto is not one that would merely allow the dissenting group to exit from the project or arrangement, but one that would prevent others from undertaking it. On the face of it a group’s veto would be a restriction on others’ freedom to form and pursue purposes, which would need exceptionally careful and compelling argument to justify – if indeed it could be justified. While the governments of sub-national regions may have an agency-relative normative case to argue here, sectoral and corporatist interests do not. If they were able to veto EU policies it would mean that a selfselected minority holding no public authority, no responsibility, and no accountability to citizens at large would wield a swingeing right to prevent a majority decision that had perhaps already been authorised by the citizenry. Even if it had not been, it is far from clear why it should be considered normatively acceptable for partial interests, including NGOs, to consent or to dissent to EU-wide measures on citizens’ behalf. Direct democracy of this type is not desirable, furthermore, because of the underlying model of social and political relations, and implicit moral order, to which it refers and appeals. The theoretical model is contractualist, but it does not posit a one-off contract instituting an enduring commitment extending into the indefinite future and encompassing a wide range of action; it is not the coming together of individuals in a compact that from henceforth they will consider themselves, for some purposes at least, as a single social union. Instead, Abromeit’s conception is best described as iterative contractualism, where everything is periodically up for grabs. Every prospective joint venture must be debated from first premises and contracted anew, giving rise to a series of referendums, one on each and every decision. This kind of contractualism and its norm, reciprocity, cannot provide a serviceable vision of political community. Europe-wide (and bigger) forces already so profoundly structure individual life contexts that iterative contractualism between unstable and contingent groups is simply not up to the political job of agency, that is, of gaining control over the contexts that determine life chances. The achievement of common purposes would be thwarted not just by the dead hand of the veto but also by the chilling effect it would impress upon the very formation and pursuit of such purposes. Establishing veto rights of this type would discourage EU-wide cross-cutting mobilisation around discourses of

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the common good since it conceives only of a defence of multiple particular goods. Political discourse in general is devalued by a too-ready constitutionalisation of blocking mechanisms. Once all possibilities of negotiation and deliberation have been exhausted agents’ rights imply recourse to dissent expressed through unusual political measures such as civil disobedience, as a last resort, and the use of veto power should be seen in that light. But in this proposal, there is no requirement in the first instance for deliberation, persuasion, negotiation, listening, and trying to see matters from a variety of perspectives, before the question of veto arises. It would allow some citizens to bypass the mutual respect owed by agents to each other by simply refusing outright, instead of entering into interactive processes, as equals – and would discourage the learning, reason-giving, mindchanging, and willingness to put one’s self in another’s shoes that are needed for a just and decent collective political agency, and needed above all in a tolerant and diverse political space. In a Union of such precariousness, built on the calculus of reciprocity, citizens would have little cause to exhibit restraint in pressing their own cases and interests and fewer impulses to magnanimity in dealing with others. Majorities would not come to temper their gains with forbearance, tact, and goodwill to minorities, nor to moderate their claims so as to accommodate minorities’ interest preferences. There are also prudential reasons to avoid it, since it would make union very frangible. Even national vetoes (that is, vetoes whose democratic and normative credentials for all their undoubted shortcomings are very much more pukka than those of sectoral interest networks) ‘threaten the survival of a federation and should be avoided’;51 devices such as concurrent majorities and even secession are more amenable to regime stability and sustainability.52 Since the groups to whom Abromeit would award veto power cannot viably secede, they should attempt to persuade through confederal Council processes (as near to concurrent majorities as is available), or reach a modus vivendi through other EU institutions. Arrangements to their taste are likelier to be agreed in a political milieu built on the past practice and future expectation of discussion and compromise and buttressed by the appropriate incentives for majorities to be concessionary, than they are in a political arena disfigured by strategic posturing and discord. The tone of common political life likely to ensue from the award of group veto rights to special interests is not compatible with the equality, the commonality, the purposiveness, or the positivity of political agency derived from the PGC. Abromeit’s conception of the EU is opposed to the stable and dependable mutualism of the conception of the EU as a community of rights oriented to the common good that is argued for in this volume. In short, while the opportunity for dissent is a good that must be prized by agents, the specific form of direct participation and de-authorisation she outlines is harmful to purposiveness, freedom, and mutuality. The periodic aggregation of partial negative preferences cannot replace a soundly-functioning, polity-wide system of properly-constituted democratic authority. As Lord and Beetham argue, none of the alternative means of

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legitimation currently surfacing in debates are sufficient substitutes to mass representative democracy.53 Instead of ‘post-parliamentarisation’ the EU needs a justlyordered and well-functioning system of representation as the framework into which mechanisms of direct participation to help shape action, rather than obstruct it, can be inserted. As the next Part will argue, being in a position to shape contexts and destinies will require the tolerance, compromise, moderation, and magnanimity of reasonable selves committed to mutualist recognition and respect of each others’ purposiveness and generic rights, in a polity constituted as a community of rights whose force is progressive, enabling, and empowering.

Notes 1 For a comprehensive overview, see Christopher Lord, A Democratic Audit of the European Union (Basingstoke and New York: Palgrave Macmillan, 2004). 2 Andrew Moravcsik, ‘Federalism in the European Union: Rhetoric and Reality’, in Kalypso Nicolaidis and Robert Howse (eds), The Federal Vision: Legitimacy and Levels of Government in the United States and the European Union (Oxford and New York: Oxford University Press, 2001); Moravcsik, ‘In Defence of the “Democratic Deficit”’; Andreas Follesdal and Simon Hix, ‘Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik’, European Governance Paper No C-05-02, March 2004, at http:// www.connexnetwork.org/eurogov; Moravcsik, ‘Is there a “Democratic Deficit” in World Politics?’ 3 Which are, to repeat, those specified by Gewirth as the conditions of free rational agency (see Chapter 4). 4 Gewirth, Reason and Morality, p. 252. 5 Gewirth, Reason and Morality, pp. 258–60. 6 Habermas, Between Facts and Norms. 7 Though it is not unlimited – agents must fulfil their citizenly duties. For instance, when resources are required by persons to secure their basic rights, then ‘citizens of political societies that can provide such resources directly or indirectly have obligations to participate actively in the democratic processes that lead to the legal enactment of the economic and social rights’. Gewirth, The Community of Rights, p. 354. 8 Gewirth, The Community of Rights, p. 263. 9 Philippe Schmitter, How to Democratize the European Union … and Why Bother? (Lanham, Boulder, New York and Oxford: Rowman & Littlefield Publishers Inc., 2000), p. 36; Michael Nentwich, ‘Opportunity Structures for Citizens’ Participation: the Case of the European Union’, in Albert Weale and Michael Nentwich (eds), Political Theory and the European Union: Legitimacy, Constitutional Choice and Citizenship (London: Routledge/ECPR, 1998), p. 136; J. H. H. Weiler, ‘The European Union Belongs to its Citizens: Three Immodest Proposals’, European Law Review, 22:2 (1997), 152–3. The 2004 Constitutional Treaty contains a provision (in Title VI, Article 46(4)) for a citizens’ initiative. 10 Nentwich, ‘Opportunity Structures for Citizens’ Participation’, pp. 134–5; Weiler, ‘The European Union Belongs to its Citizens’, pp. 153–5. 11 Schmitter, How to Democratize the European Union, p. 38. 12 Nentwich, ‘Opportunity Structures for Citizens’ Participation’, p. 135. 13 Nentwich, ‘Opportunity Structures for Citizens’ Participation’, pp. 135–6; Juliet Lodge, ‘Transparency and Democratic Legitimacy’, Journal of Common Market Studies, 32:3 (1994). 14 Nentwich, ‘Opportunity Structures for Citizens’ Participation’, p. 136; Heidrun Abromeit,

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Democracy in Europe: Legitimising Politics in a Non-State Polity (New York and Oxford: Berghahn Books, 1998); Heidrun Abromeit, ‘How to Democratise a Multi-level, Multidimensional Polity’, in Weale and Nentwich, Political Theory and the European Union. Thomas W. Pogge, ‘How to Create Supra-National Institutions Democratically. Some Reflections on the European Union’s “Democratic Deficit”’, in Andreas Follesdal and Peter Koslowski (eds), Democracy and the European Union (Berlin, Heidelberg and New York: Springer Verlag, 1998). Schmitter, How to Democratize the European Union, p. 119. Schmitter, How to Democratize the European Union, pp. 55–7, 83–4. In the famous ‘isoglucose’ case: Case 138/70 SA Roquette Frères v Council [1980] ECR 3333, para 33, cited in G. F. Mancini, Democracy and Constitutionalism in the European Union: Collected Essays, (Oxford and Portland, OR: Hart Publishing, 2000), p. 35. European Parliament Resolution cited in Gerda Falkner and Michael Nentwich, ‘The Amsterdam Treaty: The Blueprint for the Future Institutional Balance?’, in Karlheinz Neunreither and Antje Wiener, European Integration After Amsterdam: Institutional Dynamics and Prospects for Democracy (Oxford and New York: Oxford University Press, 2000), p. 19. Obradovic, ‘Policy Legitimacy and the European Union’, pp. 202–4. It has other functions too, such as those to do with elite socialisation and recruitment, but here I focus on those aspects most germane to this argument. Christopher Lord, ‘What Role for Parties in EU Politics?’, Journal of European Integration, 24:1 (2002), p. 42. Habermas, Between Facts and Norms p. 344. Grimm, ‘Does Europe Need a Constitution?’; J. H. H. Weiler, ‘Does Europe Need a Constitution?’; Michael Th. Greven, ‘Can the European Union Finally Become a Democracy?’, in Michael Th. Greven and Louis W. Pauly (eds), Democracy Beyond the State? The European Dilemma and the Emerging Global Order (Lanham/Boulder/New York/Oxford: Rowman & Littlefield Publishers, Inc, 2000); Philip Schlesinger, ‘Wishful Thinking: Cultural Politics, Media, and Collective Identities in Europe’, Journal of Communication, 43:2 (1993); Obradovic, ‘Policy Legitimacy and the European Union’, p. 203. A point also made in Sujit Choudhry’s ‘Citizenship and Federations: Some Preliminary Reflections’, in Nicolaidis and Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union, especially pp. 389–90. Cees van der Eijk and Mark Franklin, ‘CODA: What We Have Learned About Voting Behaviour and Elections’, in Cees van der Eijk and Mark Franklin with Johan Ackaert et al., Choosing Europe? The European Electorate and National Politics in the Face of Union (Ann Arbor: The University of Michigan Press, 1996), p. 400. See Albert Weale, ‘Majority Rule, Political Identity and European Union’, in Percy Lehning and Albert Weale (eds), Citizenship, Democracy and Justice in the New Europe (London and New York: Routledge, 1997), pp. 137–9. Beate Kohler-Koch, ‘Beyond Amsterdam: Regional Integration as Social Process’, in Neunreither and Wiener, European Integration After Amsterdam, p. 91. Ibid. John Gaffney, ‘Political Rhetoric and the Legitimation of the European Union’, in Banchoff and Smith, Legitimacy and the European Union: the Contested Polity, pp. 209–10. Russell J. Dalton and Richard C. Eichenberg, ‘Citizen Support for Policy Integration’, in Wayne Sandholtz and Alec Stone Sweet (eds), European Integration and Supranational Governance (Oxford and New York: Oxford University Press, 1998), pp. 257–60. Franklin, van der Eijk and Marsh, ‘Conclusions: the Electoral Connection and the Democratic Deficit’, in van der Eijk and Franklin, Choosing Europe?, p. 366. John Dryzek, ‘Transnational Democracy’, The Journal of Political Philosophy, 7:1 (1999). For a discussion of this title, see Stijn Smismans, ‘The Constitutional Labelling of “The democratic life of the EU”: Representative and Participatory Democracy’, in Dobson and

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Follesdal (eds), Political Theory and the European Constitution. 35 Myrto Tsakatika, ‘The Open Method of Co-ordination in the European Convention: an Opportunity Lost?’ in Dobson and Follesdal (eds), Political Theory and the European Constitution. 36 Commission of the European Communities, ‘European Governance, A White Paper’, COM(2001) 428 final, Brussels 25.7.2001. See too Myrto Tsakatika, ‘Claims to Legitimacy: The European Commission between Continuity and Change’, Journal of Common Market Studies, 43:1 (2005). 37 Laura Cram, ‘Governance “to Go”’, Journal of Common Market Studies, 39:4 (2001); and see the essays collected in Christian Joerges, Yves Meny, and J. H. H. Weiler (eds), ‘Mountain or Molehill? A Critical Appraisal of the Commission’s White Paper on Governance’, The Jean Monnet Program, Harvard Law School, at www.jeanmonnetprogram.org/papers/01/ 01060.html. 38 For Coreper’s functions and activities see David Bostock, ‘Coreper Revisited’, Journal of Common Market Studies, 40:2 (2002). 39 UEAPME v EU Council and EC Commission, Case T–135/96, judgment of 17 June 1998 [1998] II-ECR 2235, Court of First Instance. I am indebted to Bernard Ryan for this reference and those in the following note. 40 On the grounds that the Parliament has no powers of scrutiny over such social agreements. Presumably the operating assumption is that since the usual (electoral) mechanism for delivering universal ‘representativeness’ is not available, it has to be secured by alternative, administrative and judicial, means. B. Bercusson, ‘Democratic Legitimacy and European Labour Law’, Industrial Law Journal, 28: 2 (1999); E. Franssen and A. Jacobs, ‘The Question of Representativity in the European Social Dialogue’, Common Market Law Review, 35 (1998); Adelina Adinolfi, ‘Admissability of Action for Annulment by Social Partners and “Sufficient Representativity” of European Agreements’, European Law Review, 25 (2000); Gabriele Britz and Marlene Schmidt, ‘The Institutionalised Participation of Management and Labour in the Legislative Activities of the European Community: A Challenge to the Principle of Democracy under Community Law’, European Law Journal, 6:1 (2000). 41 Max Weber, Economy and Society: an Outline of Interpretive Sociology, Vol 1 (ed. G. Roth and C. Wittich, New York: Bedminister Press, 1968). 42 For discussion on deliberation in the EU, see Erik Oddvar Eriksen and John Erik Fossum (eds), Democracy in the European Union: Integration Through Deliberation? (London and New York: Routledge, 2000); Jürgen Neyer, ‘Justifying Comitology: The Promise of Deliberation’, in Neunreither and Wiener (eds), European Integration After Amsterdam; Christian Joerges and Jürgen Neyer, ‘From Intergovernmental Bargaining to Deliberative Political Processes: The Constitutionalisation of Comitology’, European Law Journal, 3:3 (1997); Joshua Cohen and Charles Sabel, ‘Directly-Deliberative Polyarchy’, European Law Journal, 3:4 (1997); Oliver Gerstenberg, ‘Law’s Polyarchy: A Comment on Cohen and Sabel’, European Law Journal, 3: 4 (1997). 43 Heidrun Abromeit, Democracy in Europe: Legitimising Politics in a Non-state Polity (New York and Oxford: Berghahn Books, 1998); Abromeit, ‘How to Democratise a Multi-level, Multi-dimensional Polity’, in Weale and Nentwich (eds), Political Theory and the European Union. 44 Abromeit, ‘How to Democratise a Multi-level, Multi-dimensional Polity’, p. 118. 45 Abromeit, ‘How to Democratise a Multi-level, Multi-dimensional Polity’, p. 119. 46 Abromeit, ‘How to Democratise a Multi-level, Multi-dimensional Polity’, p. 120. 47 Abromeit, ‘How to Democratise a Multi-level, Multi-dimensional Polity’, p. 119. 48 Abromeit, ‘How to Democratise a Multi-level, Multi-dimensional Polity’, p. 120, emphases added. 49 Abromeit, ‘How to Democratise a Multi-level, Multi-dimensional Polity’, p. 119. 50 Abromeit, ‘‘How to Democratise a Multi-level, Multi-dimensional Polity’, p. 120. 51 Russell L. Hanson, ‘Democracy in Multicultural Societies and Multinational Settings’, in

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Follesdal and Koslowski, Democracy and the European Union, p. 146. 52 Hanson, ‘Democracy in Multicultural Societies and Multinational Settings’, pp. 146–7. 53 Lord and Beetham, ‘Legitimizing the EU’. The most recent work on EU legitimacy considers the plurality of meanings around legitimacy and how their mediation might itself be legitimacy-enhancing. See C. Lord and P. Magnette, ‘E Pluribus Unum? Creative Disagreement about Legitimacy in the EU’, Journal of Common Market Studies 42:1 (2004), and Andreas Follesdal, ‘Survey Article: The Legitimacy Deficits of the European Union’, The Journal of Political Philosophy, 14 (2006).

Part III

8 Gewirth: community, rights, values

It was suggested very much earlier in this work that the dominating themes in the debates about citizenship of the EU were whether it could become a practical political reality as well as a formal legal reality, and whether it could call on – or itself foster – the kinds of attitudinal and motivational features that are associated with effective citizenship. Having looked, through Chapters 5 to 7, at the implications of rational agency for politics in general and for the prospects of a substantive citizenship in the EU in particular, let us now turn to its other problématique – that in which identity and solidarity are the major themes. The next two chapters offer an analysis of the relation between citizenship and social relationships together with a theoretical elaboration (consistent with Gewirth’s thinking and developed from it), of normative relations between persons in the EU. It is conceived from two complementary perspectives, to acknowledge that persons in the EU are connected with the supranational institutional framework both directly, and indirectly through mediating groups and associations, including other political frameworks. Before we get to them, however, it behoves me to set out what Gewirth’s basic propositions on these topics are. This chapter supplies a brief exposition of his account of interpersonal relations between persons qua selves.

Gewirth: the reasonable self and mutuality of rights In distinguishing ‘self ’ from ‘agent’ in Chapter 2, I asserted that the self is the experiencing, ‘inner’ mode of being that has agency – capacities for purposive action – in the world. The self has a moral dimension as well as idiosyncratic or particularistic ethical dimensions, and is the subject of the universal moral law. Persons in the EU have the abilities for rational purpose-oriented agency1 needed for political agency, as outlined in Chapter 5, and are what Gewirth describes as ‘reasonable selves’.2 The reasonable self is the internal perspective from which an

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agent is able, in full self-consciousness and self-awareness, to register and adopt universal moral agency, and to understand and act on the understanding that this includes an orientation for action beyond self-aggrandizement and toward an ideal of impartial justice.3 Reasonable selves freely acknowledge these implications of their own agency, and accept resultant obligations regarding others’ agency. This means, amongst other things, that the reasonable self can apply autonomous standards to the justification of group activities rather than taking its cues on such matters, without further reflection, from within the standpoint of the group’s own norms and values.4 The reasonable self recognises humanity as a common status of interdependence5 requiring mutual respect and mutual aid if agents are individually to have the capabilities for purposive action in general and successful action in particular. Further, the reasonable self is aware of the moral universality of the sharing of the benefits of rights and burdens of duties, leading to an appreciation of the connection between one’s own interests and common interests.6 Besides being reasonable selves, persons in the EU are also situated selves. Gewirth’s theory does not require persons’ obliviousness to particularistic commitments, as is required of the contracting parties in Rawls’s original position.7 On the contrary, it supposes that persons lead individual lives of rich, dense and complex associative texture.8 But these suppositions do not drive the theory which, to recall, is a theory of action and agency. To maintain rigour the only features of selves allowed to enter the theory are those that no agent could consistently reject.9 What counts is the significance of situatedness per se, in so far as it is a generic feature of action; the details of its content are parenthetical. Although the imagined community of EU citizens is theoretically structured around the moral relations holding between moral agents, abstracted from particular contexts, according to Gewirth it would contain an ontological premise that facets of contextual situatedness figure, in the required way, in the selves and their purposes. So reasonable selves not only acknowledge themselves and others as subjects of the universal moral law, but also recognise that they and others are contextually situated or embedded.10

The model of social interaction What kind of social framework arises from the patterns of interaction between such selves? Social relations are mutualist, and the (politically relevant) content of such relations are rights and their correlative duties. Though rights comprise the contents of the relations between these selves, mutuality sets the formal framework determining those rights’ distribution. Mutuality establishes how agents, as rights- and duty-bearers, formally relate to each other.11 Mutualism sees rights not as things – as properties or as chattels, so to speak – but instead as the capacities for action and interaction that structure interpersonal behaviour. Agents are therefore not atomised bearers or holders of rights, but participants in the relational activities of rights-exercising and duty-fulfilling. Since mutuality is an important ground of self-respect12 its interactive nature must make it a similar ground

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of respect for others. It specifies the conditions for autonomy: subjective and objective, individual and collective. Gewirth’s idea of mutuality is not the same as equality, solidarity, or reciprocity.13 Each agent has equality of rights, including rights to fundamental equality of positive consideration for her or his dignity, and other rights permitting and enabling her or him to pursue (with general prospects of success) an indefinite range of outcomes. But agents do not have rights to equality of outcome.14 Solidarity differs from mutuality in that it perceives interests as common and promotes them accordingly,15 whereas mutuality is distributive rather than collective – each person has rights against each other person, and individual distinctness is not subsumed within the group. However, mutuality fosters solidarity, especially by institutionalising commonality in social and political institutions, which are themselves collective goods as well as instrumental to both solidaristic and mutualistic purposes.16 Moreover the mutuality of rights is a necessary condition of solidarity if solidarity is itself to be PGC-compliant.17 Rights to freedom and well-being themselves entail supportive human relationships and affirmative (though not indiscriminate or open-ended)18 ties of mutual assistance and equality of standing, to realize the mutualist requirement that each person help each other person to fulfil agency needs.19 Finally, mutuality presses beyond reciprocity. Basic correlative rights and duties are not contingent on past or future benefit.20 Agents have obligations to others not because those others have been, or may in the future be, their benefactors, but because all persons have certain duties to all other persons to positively bring about equality of generic rights, regardless of who has given what to whom, or who may one day give what to whom. However, the principle of reciprocity does enter mutuality in what Gewirth calls ‘the social contribution thesis’, effectively the claim that ‘productive agents must accept that part of what they produce is owed to the whole social context that enables them to produce it’.21 For example, agents must be prepared to pay taxes to maintain the social and institutional framework that enabled them to be in a position to earn income and amass wealth in the first place.

Reasonable selves and institutions Mutuality requires that reasonable selves act toward each other with positive concern, consideration, and, where required, assistance. In the round, these suggest parity of consideration for each person’s dignity22 and that communal institutions be geared to aspirations of upward levelling of the conditions for agency rather than the maintenance of the status quo.23 Mutuality is made effective by the embodiment of these principles in social and political institutions, since reasonable selves know the structural and institutional patterns of society shape the degrees of freedom and well-being enjoyed by different groups within society.24 Such institution-building is needed to ensure an adequate supply of basic goods and the conditions for productive agency, so it must assure and manage contexts of effective economic demand and supply. It is also needed for equal protection of

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persons’ procedural abilities: their capacities to control their destinies free of the domination of others. Contexts of effective use and choice25 as well as political agency must be provided and managed. Reasonable selves are thus duty-bound to support institutions (including practices) where and when they are needed to relieve human suffering, and to work to increase economic and political equality.26 Political authorities too are expected to show initiative in upgrading the common interest, and Gewirth states specifically that a laissez-faire approach violates morality.27

The community of rights Reasonable selves have communal interests in the adequacy and rightness of the institutional framework and its workings, which are common goods. So their adherence to moral values can be assessed by analysing the effects of their common institutions, policies and practices on the freedom and well-being of all persons, including non-citizens, within its jurisdiction. By instituting self-testing mechanisms society’s members demonstrate to themselves and others their good faith and mutual assurances of willing compliance with moral norms, thereby encouraging the flourishing of trust, and inhibiting the conditions in which mutual suspicion and bad faith can fester. The institutional stabilisation of effective rights allows an atmosphere of mutual respect and civility.28 An appreciation of the role played by common institutions in guaranteeing one’s own rights might be expected to foster cooperative attitudes and feelings of approval, and the ‘awareness of the justness and rightness of the communal protection of rights’29 should help to foster affective phenomena that may themselves come to be valued.30 It is this steady attentiveness to the effective recognition of rights (and that means also, the institutionalised recognition of rights) rather than merely their declamation that will build amicable and constructive relationships between strangers across the polity, and turn their society into a community.31 Unlike the organic collectives apparently yearned for by some communitarians and nationalists (of a type not unfamiliar in the EU) the community of rights is a genuine community, constituted and held together by mutual recognition by members of each other’s agency and agency rights.32 Community worth the name depends on there being rights,33 so that commonality is founded not on paternalism or obscurantism or coercion, but rather on mutual recognition by members of each other’s agency and agency rights. Rights and the sense of commonality are here mutually reinforcing, not antithetical, so the social relationship characteristic of the polity is a ‘community of rights’. This community of rights, as Gewirth sees it, is an ‘open-textured concept’34 involving direct and multi-aspected relationships.

Purposes and the good life At this stage of the discussion, the distinction between morality and ethics needs

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to be introduced.35 We need to separate out two things: the main focus, or purpose, of morality, and the scope of its application, or the range of who falls under it. We can think about morality as being about what persons owe to each other and how they ought basically to treat each other or, alternatively, as being about the components of goodness and how to live well. With regard to scope, we can think of aspects of morality as being applicable globally (i.e. including all persons), or as applicable to some restricted group only, or as applicable to ourselves only. So we have two different ways here of understanding what morality is about, and three different ranges over which it might apply. Now there seems to be an intuitively attractive connection between that aspect of morality dealing with how persons ought basically to treat one another, and the idea that any such precepts arrived at will hold true of all persons in the world; and similarly there seems to be an intuitively attractive connection between that aspect of morality treating what makes for a good life, and the idea that what makes for a good life is likely to be different for, and particular to, specific persons, or groups of persons, and so cannot be globally applicable. A life dedicated to ballet, or bringing up a large happy family, or getting very rich, or achieving peace of mind, all have adherents; but even their adherents do not generally think that morality urges all persons in the world to dedicate their lives to ballet, to having a large family, and so on. Because morality appears to be about two different orders of worth, tending to be relevant to different ranges of persons, the term ‘morality’ is frequently reserved for the first kind of usage – that is, just relations between persons, falling on all persons – and the term ‘ethics’ for the second kind of usage, dealing not with the basic quality of relations between human beings qua human beings, but rather with substantive interests and values that may be particularised to individuals or groups. So, under this schema, morality is about ‘rightness’ and justice, it is intrinsically interpersonal (having to do with relations between persons), and is theoretically universalistic and global in scope – founded on propositions holding of all persons universally and binding on all persons globally. The idea of universal human rights (for example, freedom from torture or enslavement), which each of us holds purely by dint of being a member of humanity, flows from universalistic morality. Ethics, by contrast, is about what is worth pursuing, especially in terms of the ‘good life’ or the ‘good society’. Ethics may be personal or collective (having to do with one’s own personal commitments and aspirations, or those of one’s family, community, or other group) and are particularistic rather than global. We often encounter ethics in the form of social norms about such things as dietary customs, dress codes, appropriate behaviour inside and outside the family and other groups, rites of passage (birth, marriage, death), sexual relationships, how to treat neighbours or guests, participation in local activities and institutions, what are seen as appropriate ambitions or aspirations, etc. Morality tells us what we owe to others and what others owe to us, but ethics tells us what kind of person or group we want to be, or to be seen as, or indeed to become. Morality guides ‘what to do’ in order to treat others justly, whereas ethics guides ‘how to be’ in order that we may live a good life.

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Up until this point the theory we have encountered is Gewirth’s moral theory, in the sense of a universal theory of right relations as distinguished from an ethics of the good. But in some of his later writing Gewirth supplemented his work on the rights and duties of the just life with an exploration of the components of the good life.36 Drawing on Aristotle and Spinoza as well as the Kantianism that informed his moral theory, he has much to say on the relationship between morality and ethics, and on what an ethos that is compatible with morality consists in.37 It is important to grasp that in Gewirth’s philosophical thinking morality is normatively and so lexically, in Rawls’s term, prior to ethics. The requirements of morality are overriding and must be satisfied before ethical considerations enter the fray. The normative precedence of universalism in the theory as a whole entails this commitment in any case and also suggests that claims in respect of goods needed by all are more compelling than those in respect of goods wanted by some, but it is also implied by two further arguments put by Gewirth. The first is the apodictic status he claims for reason in justifying the PGC contrasted with the probabilistic qualities that enter reasoning about ethics, and therefore the greater assurances afforded by conceptual analysis in the former as compared with the latter.38 The second is what he calls the ‘Purposive Ranking Thesis’, which is that ‘the relative ranking of goods or capacities is to be determined by, and so be proportional to, the purposes of the goods’.39 This somewhat cryptic utterance can be read as the principle of evaluation by which we may rank the degree and urgency of the need for goods, and in fact in Chapter 4 we have already seen this principle in operation in Gewirth’s own ordering of basic, nonsubtractive, and additive, goods. For example, it is more important for a person’s survival that he has clean water to drink than that he has piano lessons. Since basic morality is concerned on the whole more with what is needed for a decent quality of survival, whereas ethics is concerned on the whole more with the adornments of an enriching and satisfying life once decent survival has been put beyond doubt, then we must attend to basic morality first. Indeed, doing so will be the condition on which an ethos becomes a practical possibility. Gewirth asserts that all conceptions of the good life depend on effective possession of freedom and well-being, which are therefore necessary to but not sufficient for a conception of the good life, and each agent’s rights to freedom and well-being include the right to develop an ethos.40 Adherence to an ethos is therefore derivable from the universalist morality of Gewirth’s theory of human rights. But Gewirth goes further than claiming that the requirements of the PGC are such that agents have rights to ethics, that morality is necessary to ethics, and that ethics is conducive to morality. He also has a view on what the content of such an ethos ought to be. In Chapter 4 we saw that Gewirth specifies well-being as three kinds of goods (basic, nonsubtractive, and additive), and by ‘goods’ he means capacities for purpose fulfilment. While his universalist morality focuses largely on the first two classes of these, his account of ethics by contrast relates more to the third: to an agent’s capacities to add further, or boost existing, capacities for purpose or

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aspiration fulfilment. For each individual person the good life is one in which we make the best of ourselves by enhancing and fulfilling our capacities, and by doing so from time to time attain our deep (morally neutral or virtuous) desires. Capacity fulfilment, argues Gewirth, is therefore the root of the good life.41 By capacity fulfilment is meant the exercising, expanding, and honing of one’s capacities to form, pursue, and fulfil aspirations. Capacity fulfilment includes the development of certain excellences of character: the prudential virtues of courage, temperance, and prudence42 enable persons to be reasonable selves, and we have duties to ourselves to develop them. We each also have a duty to develop the best in ourself, and this includes the abilities of reflection and reasoning needed to gain knowledge about ourself,43 which knowledge should then be used to organise our total (multifaceted) persona.44 It is also important for additive wellbeing and capacity-fulfilment that we extend and deepen our horizons of values, that we be open to new challenges, experiences, and values, and that we take pleasure in their ranges and variety.45 Two further elements are crucial to a good life: self-respect and self-esteem. Self-respect is needed for both morality and ethics being as it is the recognition of one’s dignity as a moral human being and reasonable self, a recognition incorporating awareness that others must be treated fairly as they are themselves agents with dignity and worth as human beings and reasonable selves. Self-esteem belongs more to ethics, to our notion of a good life, and stems from a secure sense of one’s identity and value, assurance that one’s purposes and projects are worthwhile in that they develop the best in oneself and comply with morality, and confidence that one has the abilities to carry them out.46 A person’s self-esteem and self-respect gives them a sense of their personal worth as a human being, and affirms the worth of the kind of human being they are – including their attributes such as colour and gender, their social and cultural affiliations, and their talents and abilities, purposes, plans, and projects. A sound self-respect and robust feelings of self-esteem are important conditions for the self-confidence that individuals need to embark on life and fulfil their goals and aspirations.47 The emotional insecurity their absence engenders may be crippling, perhaps even to the extent of making life seem unbearable. However a person’s self-esteem is easily damaged by others’ treatment. Denigration and disparagement diminish it. This is as true of our social or collective ‘selves’ as it is of our individual or personal selves. Persons will have collective selves, because each of us is situated in a particular milieu of space and time, and furthermore as agents we have rights to freedom that entail rights to form and to maintain associations with particular others, so long as these associations are not immoral. We have rights to form and maintain these associations because doing so is an exercise of, and extends, freedom, and also because of the vital part they play in self-development and selfrealisation (and therefore of well-being). Our rights in this respect are relevant both to associations we choose to enter, and to those we find ourselves in and choose not to leave.

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Individual freedom and freedom of association gives rise to and justifies cultural pluralism, and because rights to cultural pluralism bear in turn so heavily on freedom and well-being, they are morally mandatory. The universalist morality of the PGC urges respect for cultures and ways of life that are not our own, and also for the individuals and groups embodying them, so long as they themselves do not violate universalist morality. Such respect includes toleration but goes further to include acceptance and support for difference. It also insists that cultures not be shoehorned into a dominant mould48 and that agents have rights against cultural imperialism.49 This is what is needed for PGC-compliance, but for the good life as well as the just life, agents celebrate social and cultural diversity as enrichments of the range of experience and challenge open to each, and see variety in practices and ways of life as different paths to the capacity fulfilment that the good life consists in.50 The celebration of the range of possibilities for capacity fulfilment also stems from self-esteem, since the courses we follow in life seem less worthwhile if they have been foisted on us through lack of alternatives rather than being consciously chosen or endorsed by us out of a number of alternatives that we could, in principle, have opted for. This even applies to cultures and ways of life, too. We may not initially have chosen our social coordinates, perhaps having been born into them, but so long as we understand there are alternatives we could in reality move to, but don’t, then we have actively chosen to remain. And knowing we have chosen to stay with specific groups, commitments, and projects, we can continue to value these groups, commitments, and projects, and ourselves. On the other hand we may have chosen to distance ourselves, or change the nature of these ties, or supplement them with very different allegiances, or reject them altogether. Doing so knowing that we made our choices autonomously from a number of possibilities also enhances self-esteem and self-respect, and endows the things chosen with greater worth. These, then, are the theoretical resources that can be used as the basis from which to construct a theoretical discussion of self-definitions in the EU. The concluding chapters pick up Gewirth’s basic propositions and take them in two complementary directions, in the course of which they are deepened and pluralised. Chapter 9 looks at social affect between individual agents, conceiving of them as equal but composite reasonable selves forming a community of rights. Chapter 10 moves the theoretical lens to consider such selves as members of pre-constituted political associations, and offers a conception of principled co-existence between such associations and frameworks. Here the community of rights supports and guarantees communities of value.

Notes 1 The rationality required here is minimal – a basic grasp of the canons of inductive and deductive inference. See Gewirth, Reason and Morality, pp. 22–3. 2 ‘Reasonable’ is here to be distinguished from ‘rational’. The former is used to mean

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equitableness in one’s dealing with others, while the latter means efficient means-end calculation. However, these both derive from reason and Gewirth holds that close examination will show them reconciled in the PGC, described as ‘the moral principle of reasonableness’, which it is ‘stringently rational’ to uphold since to deny it is to incur selfcontradiction. See Alan Gewirth, ‘The Rationality of Reasonableness’, Synthese, 57 (1983). Gewirth, The Community of Rights, pp. 93–6 and p. 333; Alan Gewirth, ‘Common Morality and the Community of Rights’, in G. Outka and J. Reeder (eds), Prospects for a Common Morality (Princeton, NJ: Princeton University Press, 1993), pp. 44–6. Gewirth, The Community of Rights, p. 96. Gewirth, The Community of Rights, p. 41. Gewirth, The Community of Rights, pp. 6, 31. Rawls, A Theory of Justice. Gewirth, The Community of Rights, p. 96. Gewirth, The Community of Rights, p. 27. The idea of ‘situatedness’ as I am using it here is very like Toni Erskine’s ‘embeddedness’. I should note here that my account is consistent with Erskine’s in so far as she treats selves, but we differ on our treatment of agents. If I have understood her correctly, she makes no distinction between agents and selves, so what is predicated of one holds of the other. In contrast, I distinguish the two as different aspects of the person, and do not concur with her claim that one’s moral agency is constituted by one’s embeddedness at the centre of multiple scopes of moral concern. See her ‘“Citizen of Nowhere” or “The Point Where Circles Intersect”? Impartialist and Embedded Cosmopolitanisms’, Review of International Studies, 28 (2002) and Embedded Cosmopolitanism (Oxford: Oxford University Press, 2007). Gewirth, The Community of Rights, pp. 71–3. Gewirth, The Community of Rights, p. 79. This section draws on Gewirth, The Community of Rights, pp. 71–87. Gewirth, The Community of Rights, pp. 71–5; Alan Gewirth, ‘Political Justice’, in Richard B. Brandt (ed.), Social Justice (New Jersey: Prentice-Hall Inc., 1962). Gewirth, The Community of Rights, p. 305. Gewirth, The Community of Rights, pp. 304–5. He makes this argument with reference to community. See Gewirth, The Community of Rights, pp. 86–7. Gewirth, The Community of Rights, p. 32. Gewirth, The Community of Rights, pp. 97–8. Gewirth, The Community of Rights, pp. 76–9. Gewirth, The Community of Rights, pp. 84–5. Gewirth, The Community of Rights, p. 73. Gewirth, The Community of Rights, p. 74. Gewirth, The Community of Rights, pp. 71, 93. Gewirth, The Community of Rights, p. 74. Gewirth, The Community of Rights, pp. xv, 4–5. Gewirth, The Community of Rights, p. 4. Gewirth, The Community of Rights, p. 90. Gewirth, The Community of Rights, p. 93. Ibid. Gewirth, The Community of Rights, p. 6. Gewirth, The Community of Rights, pp. 81, 95. Peter Jones, Rights (Basingstoke: Macmillan, 1994), p. 211; Jeremy Waldron, ‘When Justice Replaces Affection: the Need for Rights’, Harvard Journal of Law and Public Policy, 11:3 (1988). Gewirth, The Community of Rights, p. 82. Gewirth, Self-Fulfillment, pp. 52–8; William K. Frankena ‘The Concept of Morality’, Journal of Philosophy, 63 (1966); Jürgen Habermas, Justification and Application: Remarks on

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Discourse Ethics (Cambridge: Polity Press, 1993); Bernard Williams, Ethics and the Limits of Philosophy (London: Fontana Press, 3rd impression with amendments, 1993); Bernard Williams, Moral Luck: Philosophical Papers 1973–1980 (Cambridge: Cambridge University Press, 1981); Gerasimos Santas, Goodness and Justice: Plato, Aristotle, and the Moderns (Oxford: Blackwell, 2001). I should register here that this terminological distinction, between morality and ethics, is not one that Gewirth himself adopted in his discussions – rather, he talks of ‘universalist’, ‘particularist’, and ‘personalist’, morality, the former being equivalent to ‘morality’ and the two latter being equivalent to ‘ethics’. This section draws on Gewirth, Self-Fulfillment, Alan Gewirth, ‘Ethical Universalism and Particularism’, The Journal of Philosophy, 85:6 (1988); Alan Gewirth, ‘Is Cultural Pluralism Relevant to Moral Knowledge?’, Social Philosophy and Policy, 11: 1 (1994). Gewirth, Self-Fulfillment, p. 74. Gewirth, Self-Fulfillment, p. 71. Gewirth, Self-Fulfillment, p. 109. Gewirth, Self-Fulfillment p. 112. Gewirth, Self-Fulfillment p. 119. Gewirth, Self-Fulfillment, p. 134. Gewirth, Self-Fulfillment p. 140. Gewirth, Self-Fulfillment p. 123. Gewirth, Self-Fulfillment pp. 94–5. Gewirth, Self-Fulfillment. Gewirth, Self-Fulfillment pp. 154–5. Gewirth, Self-Fulfillment p. 132. Gewirth, Self-Fulfillment p. 157.

9 Mutual recognition in the supranational polity In earlier chapters it was argued that citizenship, being an institutional role, is not reducible to nor incorporates as a component the social relations between persons, and that these must be conceptually and theoretically distinguished from it. However, social relations are not irrelevant to citizenship. This chapter examines what relations must obtain between the inhabitants of the EU as agents or as natural persons, if these interpersonal relationships are to be adequate for political agency and thus, indirectly, for citizenship. It begins by arguing that the two orders of experience – social and cultural coordinates on the one hand, and the occupation of the role of citizen on the other – are connected, in that the former provides the conditions (facilitating or inhibiting) for the latter. It contends, further, that political affect (the sentiment binding groups) is a cognitive phenomenon and consequently is open to reflection, evaluation, and revision or reconstruction. The remainder of the chapter proposes a way of seeing social relations and identities in the EU, springing particularly from Gewirth’s ideas of the reasonable self and the community of rights as sketched in Chapter 8, but pressed into greater complexity. These social relations are not the same as those mediated through common political institutions, but provide the conditions in which such institutional relationships may flourish. The conceptualisation of affect offered grounds socially mutualist relations sufficiently to support a consequential EU citizenship, but without seeking to supplant existing political or other affiliations, invoke spurious historical or socio-biological notions of ‘European-ness’, or argue for a single, ‘thick’, and hegemonic pan-European ethic. Rather, I claim that the EU should be regarded as a community of rights inhabited by reasonable composite selves interconnected by mutuality of respect and recognition. In what follows, Gewirth’s basic propositions on both the reasonable self and the community of rights are developed to deliver two further theoretical products: a conception of what I will call the ‘composite’ self, that is, the self located in multiple, cross-cutting, inter-evolving, and mutually affirming identities; and an

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account of limits showing that the social relations holding between such selves are likely to be concentrated, though not wholly contained, within a bounded political and territorial jurisdiction.

Identity, affect and the role of citizen The first matter to tackle is the question of what, if anything, identity has to do with citizenship. To anticipate the discussion, the short answer will be that certain kinds of self-identifications and social relations are instrumental to citizenship as they contribute to the conditions in which it can operate successfully. But a condition of something is not an attribute of it. The move to be made in this section is the dismissal of the notion of citizenship as synonymous with or expressive of (a certain type of essential or ascriptive) identity, and the discarding of the idea that identity is an integral component of citizenship. Instead, we will shift to seeing self-definitions (conceived in ways that are more pluralistic and voluntaristic) as potentially facilitative for the institutional role that citizenship is. Politics impinges on self-definitions as well as distributions of powers, rights, capacities, and goods. Indeed identifications and ‘interests’, and ends, are mutually influencing; and from one point of view self-definitions are themselves powers or goods. The causal arrow between identity and politics runs both ways. Our various social roles, locations, and identifications provide the raw matter of political problematisation and engagement: we encounter the kinds of issues and concerns that catalyse our political agency and activate our citizen roles initially through our experiences and activities as natural persons or inhabitants of various other social roles and identities. But the action we take as citizens, and its fruits in the form of legislation, policies, and other forms of politically authoritative imperative, will both impact on, and create the contexts for, the fabric of our existence as natural persons and occupiers of those other roles and statuses and identities in the future. As natural persons and holders of social roles and statuses we are the objects of the imperatives we, as citizens, are responsible for. As citizens we make the laws that in our other roles, statuses, and identities, we will abide or fail to abide by. Collective political subjects come in a range of magnitudes – from three people and a dog campaigning to open a local footpath, to the possibly tens of millions around the world trying to do their bit, whatever it is, to halt global warming. They also vary widely in the degree to which they are politicised and active. Each person in a modern, developed, society is certain to be a member of a number of such groups, deriving from territorial, religious, class, ideological, and taste affiliations, for example. Some collective potential subjects nearly everyone in a developed western society is a member of – we are all consumers, we have all been children, virtually all of us will be taxpayers for some part of our lives, virtually all of us use transport systems, most of us will live to be elderly. Our statuses as taxpayers, commuters, cat-lovers etc, may or may not be politicised, and may or may not go toward making up our sense of political identity.

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Self-definitions, especially group-definitions where the ‘self’ is a collective self, are thought to have motive force. Indeed, for some communitarians and nationalists, to invoke shared identity just is to provide sufficient explanation of strong norms of interpersonal benevolence between those amongst whom the identity is shared. But this is too hasty a move. It is possible to acknowledge oneself as a member of a group one despises or is indifferent toward, so self-classification need not always go along with affirmative feelings and sentiments towards the class and its members. Despite this cavil, we can concede that it would be reasonable to generally suppose that, if we are willing to acknowledge association with some set of people, we will more likely regard them with ‘pro’-sentiments than ‘anti’. What kinds of pro-sentiments and to what degree they will be held will depend on contingent factors, one important one being how well the persons involved are personally known to us. These pro-feelings may be of warmth, benevolence, and liking, but alternatively may just be an awareness that we have interests in common which would be better pursued in an atmosphere free of hostility or of attempts to gain advantage over each other than otherwise. The fact of identifying with other members of the group – many or most of whom we may not be personally acquainted with – builds in a tentative presumption of trust, in the minimal sense that we have greater confidence than we would otherwise have that our fellow-members will, in relevant interactions, come halfway to meet us. We assume they will approach us with open minds and hearts, or at least minds and hearts not already inclined to hostility and suspicion towards us, and we feel willing to approach them in a like spirit: to allow them the benefit of the doubt, until such time as they give us reasons to withdraw it. Facilitative social relations, then, are useful for citizenship. What can be said about a particular political collective identity along with its affect indicates what it is about the persons involved that makes their acting together from a common standpoint or with common aims possible, or probable; it connotes some aspects of their commonality that are facilitative or conducive for the formation of a collective political subject. ‘Affect’ is often the term used to account for what Karl Deutsch called ‘we-feeling’,1 the sense of cohesion allowing persons to believe that together they form a distinct group. Political affect connects a perception of interests held in common by group members that are not shared by others outside the group, with a set of social dispositions – including the ‘pro’-sentiments – that facilitate the capacity for cooperative and productive common action to pursue them. While political identity allows people to perceive what attributes they have in common, affect is what turns that perception into a mechanism of bonding between them. It is the emotional collagen of collective identities, and it is what enables collective identities to become collective political subjects. In conventional discussions of citizenship, however, the relevant collective political subject is assumed to be of one type: a population that is nation-state sized, and rooted in mythologies of biology, time, and space (common ancestors, common histories, common territory). For many theorists the only political subject that really matters is this kind of political community, construed as congruent

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with the polity’s jurisdiction and dependent on thick and constraining affect. For this reason, analyses of the political functions of affect between persons tend to be analyses of national or community affect (where community typically means a grouping smaller than a nation, or at least smaller in size than a populous nation) not of affect per se. Nonetheless, they are illuminating for our purposes, and so worth exploring. David Miller argues affect is a prerequisite for the pursuit of social justice, and ‘helps to foster the mutual understanding and trust that makes democratic citizenship possible’.2 For Tamir, the relations of care and cooperation it fosters, and the possibility it offers for agreement on the principles of justice are ‘crucial for the functioning of a liberal state in general, and a liberal welfare state in particular’.3 Walzer agrees.4 For Margaret Canovan affect supplies the diffuse support, unity and stability required to stabilise and to regenerate civilised, relatively non-coercive politics.5 Will Kymlicka, Charles Taylor and James Tully argue for the safeguarding of affect in order to secure the values of justice and self-determination.6 Governance and law must rely on public assent. Compliance with the polity’s laws depends ultimately on political affect, as Westbrook7 and Habermas8 agree: law cannot be seen as the product of a collective subject where no collective subject obtains. For Habermas, constitutional democracy depends on a liberal background culture including ‘mutual understanding’9 so that ‘modern law lives off a solidarity concentrated in the value orientations of citizens’.10 In this indirect way, affect is crucial for overall regime legitimacy. As well as its role in maintaining diffuse regime support, liberals such as Sidgwick and Mill famously believed affect is required for the day to day workings of political institutions to be democratic and efficient,11 and Dahl reminds us that it helps policy decisions be accepted by and enforceable among their losers.12 Andrew Mason’s succinct overview of the claims made by liberal nationalists shows affect is held to be a condition for the realisation of liberal values by conducing to (a) the avoidance of alienation from political institutions, (b) the stability and endurance of those institutions, (c) democratic compromise, (d) support for policies of the common good and social justice.13 According to Simon Caney, liberals and communitarians converge on why affect ultimately matters: it conduces to stability, other-regarding attitudes and behaviours (less selfishness, sharing life with others, sociability), the common good, and social solidarity.14 In summary, there is a broad consensus that cooperativeness, capacity for compromise and for self-restraint, trust, mutual assurance and credibility regarding compliance with agreements, commitments to the common good and to social justice are the fruits of political affect upon which democratic decision-making relies. But why is that so? Why should a nebulous set of mildly favourable feelings about an extremely large number of strangers have any effect at all on the operations of the political machinery? The reason is this: in an environment where social relations show scant political affect, the role of the citizen is more difficult to play. The willingness of persons to acknowledge and act in accordance with the citizen’s role, as well as

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how they conduct themselves in exercising it, will be influenced by the tone and quality of the relations holding amongst them in their other social roles and personae. If subsets of the population are hostile to or estranged from each other on grounds of skin colour, or religion, or stark economic inequalities, or past hostilities and injustices, for example, they are not going to find it easy to put such attitudes aside in order to exercise common citizenship responsibilities, or to fulfil such responsibilities as smoothly and productively as they might. We grasp this intuitively, which is why debates about all kinds of conceptions of citizenship tend to take place in the register, and with the vocabularies, of identity and belonging. The problem, as I have already suggested, is that we then mistakenly believe citizenship just is identity and belonging, instead of understanding it as made easier in many respects by them. Citizenship is a role, and affect eases the adoption of role-conforming attitudes and behaviours. The boundaries of citizenship are the boundaries of a political jurisdiction. Political affect that spans the jurisdiction is therefore an enabling condition for collective purposive action within the jurisdiction and offers a partial feasibility test for citizenship. Such purposive action is more far-reaching than the pursuit of substantive outcomes. It also includes upholding collective values and the institutional and social contexts that permit or encourage their continuation. We ought not, however, conclude that political identities and sentiments of cohesion always need to be thick, intense, or indiscriminate. So there is a strong case for considering affect to be a vital part of the social context within which citizenship must operate and draw sustenance, but only where it is scaled appropriately for the polity. Different kinds or levels of political organisation – and different political tasks – will be more or less demanding of affective sentiments and attitudes. It may be that minimal levels of trust between agents, in the sense that they have some mutual confidence that each acts in good faith, and are willing to extend to each other the benefit of the doubt until given reasons not to do so, is quite sufficient for thinking about both citizenship and political community for very high levels or loose frameworks of political organisation. The attitudes and dispositions that members of a society hold with regard to each other are apprehended in the realm of feeling. Despite this, and its undoubted emotional and visceral force, political affect is a cognitive phenomenon. To see this, consider the literature on its best-known manifestation, nationalism.15 Canovan claims nationalism mediates the antinomies ‘between different areas of experience and between the different individual members’,16 but it does so by creating a common world – that is, constructing a mental artefact. Miller is clear that national identity defines membership of a community that is ‘imagined’, to quote Benedict Anderson’s well-known phrase,17 involving reciprocal beliefs (about past community, future community, and shared collective traits).18 These beliefs are based on mental items such as myths, falsities, and inconclusive interpretations.19 Common worlds are constituted by culturally specific shared meanings, for Walzer.20 The building blocks of Rawls’s common world are texts and documents, institutions and public traditions of their interpretation.21

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From these works it is plain that the emotional conativeness of political affect, the sentiment motivating action, derives from beliefs, convictions, attitudes, and intentions. When it comes to a feeling of social cohesion and belonging, what is in the heart is thus only there at the pleasure of the mind. And this should not surprise us, since even in very small states the overwhelming majority of conationals must be complete strangers to each other. Since they do not encounter each other in proximate face-to-face circumstances, for the most part, they are simply not in a position to connect emotionally with each other except by way of a framework setting up an artificial connection – a fabricated common world, with a fictional history and imagined future – to substitute for actual consanguinity or propinquity. And a common world is an idea, something held in the mind. It is not an elemental force arriving unbidden like remorse or delight or anger or pity. Social relations at a scale far smaller than the average European nation state are typically abstract and mediated, and among strangers. However much fellowcitizens and fellow-nationals might like to believe their relations are based on personal or kin ties of sentiment and custom, interaction in spaces larger and more developed than the peasant hamlet must be governed by impersonal public norms – publicly held, and publicly defensible in open argument amongst all, including those who would otherwise be excluded or disregarded. Three things follow from this discussion. First, the boundaries of political affect constituting the community are cognitive boundaries. This means not only that they can be reflected on and explored through reason-giving discourses, but also that the relevant conceptions are amenable to being more or less encompassing or restrictive, more or less universalistic or particularistic – as Tully tells us, affect is interactive and internally negotiated.22 This does not imply that just any kind of affect can be manufactured, nor that it can be expediently imposed by political elites on impressionable populations. Secondly, political affect is socially constructed and can thus be created and developed in ways incorporating critical reflexivity: the shaping of common understandings is not a natural process and should not become an unthinking one. Social institutions create the conditions in which political affect and political identity develop, and so stabilise the institutions and community themselves. They influence the speed at which these processes occur, and mediate the different registers of affect and textures of identity. But the way motivational resources are animated, moulded, and harnessed, is not predetermined and nor need it be left to invisible hands. In designing, constructing, and supporting institutions it is wise to be alert to what values are being tacitly or openly endorsed by them, and have a care for the future social and moral order they will help to produce. Thirdly, the moral or ethical implications believed to flow from these cognitions have motive force. While conceptions of political community and political identity typically lack a fully-fledged theory of motivation, they all implicitly assume that group membership and its affect are sufficient to motivate action, and more particularly, other-regarding action. (That is, after all, their whole point.) Some of the mechanisms encouraging the emergence and sustaining of such

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motivations are reasonably clear. As interactions between persons are repeated over time and increasingly routinised they become stabilised into familiar and trust-creating patterns, giving rise to the practices, folkways and conventions that are the bedrock of pro-sentiment. An ever-greater readiness to formulate and pursue large collective goals can be forged from common experiences of pursuing manifold individual or small-group purposes, under conditions of ripening information and predictability. Those collective purposes will inevitably come to include the creation of the institutions23 to reproduce themselves and their facilitating environments. Institutions shape affect, just as affect shapes institutions. Motivations are embedded in normative understandings, and motivations of the required sorts are needed for the (just and stable) political institutions that in turn sustain the context in which those normative understandings can remain operative.24 That is the dialectic at work. With respect to the EU, the failure of the inhabitants of EU member states to ‘feel’ European in the same way they feel Czech or Sikh does not render citizenship incorrigible at EU level. On the contrary, it may be a positive advantage. If the experience of cultural and ethnic minorities in the UK is anything to go by, growing into new pan-polity political identities is easier where they are overtly cognitive (‘civic’ or ‘legal’) and so do not seek to replace identities experienced more naturalistically.25

Composite selves: commonality and difference The self, to repeat, is what it is that experiences personhood and agency – it is the inner reflexive consciousness of persons. In order to grasp the conceptualisation of supranational affect being proposed here, two sets of distinctions and relations need to be borne in mind: that between the person viewed as a self and the person viewed as an agent; and that between morality and ethics. It is out of moral agency (that is, rational agency in conformity with PGC imperatives) that political agency derives. Its criteria isolate those attributes or performances predicable of all persons, qua persons, before further social or cultural attribution. Anyone with the required faculties, regardless of their other features, attachments, or conceptions of the good, falls within the scope of the theory. A substantive ethos, in contrast, is consistent with particularism. (Indeed, in the ancient Greek whence the word ethos comes, it meant something like ‘character’, a particularising concept.) Though distinctive to a particular group, an ethic may supplement the basic underlying morality applicable to all inside and outside the group: ‘Justice’, its members may, for instance, say, ‘is a value of all persons universally and thus a value of ours, but we value solidarity (or courage, or artistic excellence, etc) as well, and this is not a value that is universal to all persons, but is our value.’ On the other hand, the group’s members may claim that ultimate values only make sense within complexes of local shared meanings and assessments of worth whose boundaries are coterminous with national, ethnic, cultural or other specificities. From their viewpoint there is no distinction between morality and ethics: they

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are one and the same; and the term ‘moral’ may be no more than honorific, dignifying the group’s common stock of customs and narratives. This is a position characteristic of those who affirm an intimate connection between a particular culture or community and a specific set of values – perhaps even seeing such frameworks of value as discontinuous across cultures26 – and by those who laud the ideal, but lament the disintegrated reality, of such vibrant particularisms.27 In the Gewirth-inspired argument being developed here, morality is lexically prior to ethics and is underdetermining of ethical choices. Morality and a variety of different ethics are compossible. One reason why is that morality supplies a set of positive and negative imperatives. By prescribing what must not, and what must, be or be done, those imperatives delineate the boundaries of what may, permissively, be or be done. This is a huge space of possibility, and within it agents are free to shape their actions according to ethical values (like cultural values) as well as moral considerations. Moreover, firm imperatives may admit some flexibility of interpretation or, more probably, of application, in different contexts; this is where agents’ collective deliberation and judgement comes in. Further, many difficult moral issues involve not only numerous moral considerations but also numerous ethical considerations, all of which have to be brought into some kind of order, and though the means of ordering is constrained by the purposive ranking thesis mentioned in Chapter 8, it is not fully prescribed by it. Thus a particular moral precept or right of agency may be transposed into positive political instruments in slightly different ways in different settings, so as to combine common adherence to the norm with sensitivity to context. While compliance with morality must be absolute, in principle a wide array of mechanisms may be means to it. Gewirth’s theory marks out the zone of morally permissible social relations at all levels of political and social organisation, by specifying both what must be done and what must not be done. But even taken together these positive and negative imperatives provide a far from complete guide to action. Within the zone of moral permissibility it delineates, the theory’s commitment to freedom of, and in, action, leads it to favour richness and diversity in ethics and affiliation. With reference to cultural allegiances in particular, whether those of ‘race, class, gender, ethnicity, religion, ideology, and other … variables’28 Gewirth’s criterion of the PGC discriminates what are morally unacceptable practices and institutions – those tending to diminish freedom and harm well-being – and then largely encourages the rest:29 ‘moral universalism sets the outer limits of the legitimacy of the various practices of cultural pluralism. Affirmatively, within these limits moral universalism encourages and upholds the diverse practices of cultural pluralism … with regard to values and ways of life.’30 Amongst agents, common values or beliefs will be held alongside their various sets of non-common values or beliefs, but ‘the beliefs or values that persons have in common must include beliefs about the generic rights, and their relations must include mutual support for these rights’.31 These common beliefs about generic rights to freedom and well-being will be in place in so far as persons are reasonable selves and rational

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agents, because holding such beliefs is part of what makes a person a rational agent and reasonable self. In addition to being reasonable and situated, I contend, selves are composite selves. They are composite in two respects: first, in that the experiencing self is an assemblage of awarenesses of identities and roles and statuses and agency, which evolve and shift and are sometimes in tension, and so the self is internally complex (as discussed in Chapter 2). Secondly, the principal attachments and commitments of selves may be concentrated at various levels and over multiple sites within (and beyond) the scope of political jurisdiction. Each agent will be situated in a context richly endowed with cultural and ethical content, stemming perhaps from a variety of sources, but agents will not all share the same, single, context with its particular ethical background, values, allegiances, and aspirations. Instead, agents will be differently, but pluralistically, situated at the intersection of a variety of evolving and inter-negotiating social and cultural formations and complexes of meaning. The cultural, national and other groups throwing their lot in with each other in the EU should not to be preserved as if they were exhibits in a continent-wide anthropological theme park. Freedom in purposiveness implies that persons must have what Mookherjee calls ‘discursive autonomy’, meaning that an individual must have ‘capacity to negotiate different discourses of value’ within ‘a framework of meanings through which she might express her unique personal identity’.32 But in a community of rights, the attachments and identities composite selves hold dear, and the discourses of value and frameworks of meanings through which they negotiate their unique senses of personal and collective identity, will shift and develop in ways informed by encounters with each other. Not only will persons adapt to each other, but since they are located in multifarious relations with each other, the ways in which each will change will be inflected by such engagements with others. Composite selves will understand that each of them is multiply situated, and for each their evolving identity is a constantly shifting centre where several cultural planes intersect. But in the community of rights, the attachments and identities they hold dear will shift and develop in ways that are mutually accommodating rather than abrasive. This point is obviously of some moment for the EU. Its result may be processes of hybridisation, of the ‘Europeanisation’ of national and sub-national identities, or the inter-cultural borrowings that Nicolaidis advocates;33 or it may be the more modest but still welcome advent of a greater willingness by each person to moderate those aspects of their particular identity that cause others unease. A supranational sense of affect built on Gewirthian lines incorporates active recognition of, and positive respect and concern for, other kinds of identities – including those yet to develop, or to emerge – just so long as they in their turn are respectful of other persons’ generic rights, and that in part at least they freely accept processes of mutual adaptation. The situatedness of selves will mean they have affections, or preferences, or allegiances to particular sets or networks of others that they do not have as moral

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agents to all other moral agents. This kind of partiality for particular groups is justifiable, just so long as the partiality itself and the group or groups it favours are compliant with morality.34 Indeed within those constraints it is to be welcomed, as associative relationships are important exercises of freedom and contribute to self-fulfilment and purpose-fulfilment. We should also note an argument that Gewirth does not himself put, and that is that such partiality is also central to purposiveness. Differently described, purposes just are plans, projects, commitments, and they are often restatements of or at the least include meaningful attachments. Our foundational purposes may in large part be composed of such loyalties.35 Certain of a person’s commitments, projects and attachments constitute not only the product or condition of freedom and well-being but are also essential impelling factors in purposiveness itself; without them, as Williams says, there may not be enough substance in a life to generate allegiance to life itself.36 A prima facie positive concern for others’ affiliations and commitments ought to be held, therefore, not simply on the grounds that these attachments are important goods for psychological security and personal development, but also because they may be crucial to purposiveness, and agents must respect each others’ purposiveness. Respect may also be forthcoming for agents’ purposes themselves (i.e. the actual communal attachments and commitments), if those do not violate the principle of generic consistency. If they do not, then to the extent that those objects bear importantly on freedom or well-being or purposiveness, they must attract positive recognition of their worth.37 However, what agents collectively affirm is not so much the particular contents of individuals’ various projects and ways of living – their actual purposes – but rather, diversity, plurality and significance within purposiveness as such. Agents celebrate the array of (PGC-compliant) ethical and cultural possibilities, without necessarily endorsing any of them specifically. What this means is that the moral relationships holding between agents in the EU can subsist alongside the arrays of thicker, more particular ethical (and moral) relationships they each hold as situated composite selves at other (or no) levels of political organisation. The mutual respect and recognition that such selves have for each other at EU level is compatible with their partialities for particular others, and with others’ partialities for particular others. In this way it is possible for supranational social relations to co-exist with social relations of more restricted range, but the theory goes some way further than merely motivating the basic levels of mutual tolerance needed for co-existence. An offhand tolerance between persons and between groups is not enough of a social bond to enable them to realise substantive collective purposes. Social relations in a community of rights rest not on members’ indifference to each other’s fates, but instead aspire to express values of dignity, self-fulfilment, and mutuality of respect.38 The parties must encounter and make space for each other on terms consistent with their several self-respect(s). They recognise and affirm individual distinctness and distinctiveness, as well as a principle of distributive equality compelling parity of regard and concern for each person. These flow from the theory’s individualism and the distributive structure of relational rights and duties. A sense

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of belonging to an accepting whole is an important and valuable component of additive well-being.39 To conclude, affect between strangers within a supranational polity derives from persons’ moral relations and attachments, not from a ‘thick’ Europe-wide ethos to which all Europeans subscribe. In this way, there is a conception of political identity and political community able to focus sufficient affect at EU level to make effective citizenship possible, while not only remaining compatible with, but buttressing the better parts of, other valuable kinds of identity and commitment. But a central component of that morality is the recognition that persons will have particularistic and pluralistic ethical affiliations as well as their moral standing and that these are worthy of affirmation because of their close links to freedom, purposiveness, and self-fulfilment. The supranational community of rights populated by reasonable composite selves provides, as Proudhon would say, a ‘plenitude of autonomies’.40 This mutual nurturing of each other’s freedom will be what ‘makes it possible for each of us to respond to a multifaceted world in new and creative ways’.41

Cosmopolitanism and boundedness At this point the question of limits and boundaries must be raised and considered. I have said that reasonable selves are those that register and act on their universal moral agency, that agents recognise each other as diversely situated within multiple particular social, cultural, and ideational complexes, and that such situatedness is deemed a good so long as it conforms with the strictures of moral agency. What has been done, in effect, is to draw out the universalism of situatedness as such (each person is situated), to pluralise it (each person is multiply and variously situated), and to subordinate its contents to the tests of Gewirth’s moral principle. But as we saw in Chapter 4, Gewirth’s moral theory is universalistic, individualistic, and egalitarian. How, then, is it to cope with the specificity of EU citizenship? After all, the account of social relations presented so far is one that is both denationalised and deterritorialised. It could in principle be held applicable to any territory, or indeed to be globally applicable, since it contains no internal account of limits. In that case, it may indeed have escaped the fate of presupposing nationalist or communitarian sentiment, but only by presupposing cosmopolitanism. So why is this conceptualisation of affect proposed as suitable for supranational citizenship, rather than cosmopolitan citizenship? The theory of moral agency is a universalistic theory, but moral universalism need not imply institutional cosmopolitanism nor indeed ethical cosmopolitanism, as I have defined ethics. This is so because universalizability is really a categorical term asserting sameness of application or treatment to all the members of a given class, or units within a given domain, but does not of itself fix scope.42 As Lichtenberg writes, universalisability ‘means just that what is good for one is good for all those in the same situation … that equals ought to be treated equally’.43 Since every individual human being is a member of the class of ‘individual human

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beings’, the scope of moral theories held to be true of individuals qua human beings is all humanity, and this is why the meaning of ‘universalistic’ used as a predicate of a moral theory comes to be conflated with the idea of global scope. Now, the account presented here posits two orders of being in relation to action. Propositions made about moral agents are universalistic (in the sense outlined above) and also global in scope, in that they pertain to capacities for agency attributable to (almost)44 all persons on the planet. The proposition that selves are situated in social and cultural contexts is also a universal proposition, holding of all selves, and since all persons (again, except for a tiny number of limit cases) are selves, then it is also a proposition of global application. However, though the fact of situatedness as such is global, the kinds of contexts within which selves are situated, and their actual situations, are not global but particular, and thus bounded. There is no contradiction in saying we are all situated, but we are not all situated in the same places. As Erskine argues, selves may be situated at the intersection of identifications and constitutive attachments that are transnational, overlapping, or non-territorial, and the scope of the self ’s ethical concern may be constituted by membership of these multifarious and overlapping communities.45 The particular cultural and ethical affiliations and commitments each agent holds may have any scope, and since agents will likely have multiple such attachments, it is possible that their attachments will span a variety of scopes, territorial and non-territorial – so they will be differently bounded, and over varying ranges. Nonetheless, whatever each person’s most important commitments, attachments, and so on, are, they will not be free-floating, but instead already bound up with actions, endeavours, persons and projects going on within some patch of territory and its skeins of social, cultural, and economic institutions. The territory in question may of course be that of the entire planet, but most referents will be more confined. Purposes usually have territorial coordinates because they tend to relate to things already existing somewhere, and, by and large, an agent’s network of relationships, projects and loyalties will be concentrated within a plurality of contracted territorial coordinates. This is because agents themselves have specific, though not fixed, physical locations and the materiality of projects and attachments means that, all else being equal, we will interact more, or more intensively, with what is near than with what is far. Not many people travel thousands of miles to have their hair cut, do their daily job of work, get the weekly shopping, or join an aerobics class. However, persons’ projects and attachments need not all necessarily be nested within the nation-state; and though most agents’ purposes will be concentrated within a discrete territorial area (which itself need not conform to any standard political boundary), it is increasingly unlikely that all their purposes will be contained within it. While the materiality of life as it is actually experienced suggests concentrated densities of interaction within restricted spatial coordinates, concentration is not the same as containment. Within that zone formed by density of affiliation and interaction, what transforms this social, interpersonal, mutuality into political community is its binding

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to purposive collective action within a given jurisdiction. The boundaries of such a jurisdiction need not equate with those of a nation state; it may, for example, be composed by a number of contiguous nation states. Whatever kind of political territory it is, political membership within it will be that of agents, the life purposes and attachments of each of whom have their gravitational centre within the scope of the same territorially-bounded administrative jurisdiction, who share a recognition of each other’s standing as such moral persons, and acknowledge the rights and duties incumbent on that standing. Some, though not all, of these reasonable composite selves will also have the status and thus the role of citizen of the jurisdiction that disposes over the territory in which they are societal members (recalling from Chapter 2 that citizenship and social membership do not and need not always coincide). Where these agents are also citizens, the fuzzy and porous boundary of affiliation between composite selves connects up with the clearly defined boundary of democratically authoritative jurisdiction constituted by the political agency of citizens that was discussed in Chapters 5 and 6. Agents within the jurisdiction may have important attachments, implying ethical obligations to others outside the jurisdiction, but only with those inside the jurisdiction can they act politically through the institutions of the jurisdiction to give effect to their obligations, whether such obligations are nested within, or cut across, jurisdictional boundaries.

The ideal and the real Two objections may be anticipated and answered here. The first asserts: people in the EU do not, as a matter of fact, view each other in this way. So this ‘community of rights’ might be an attractive ideal but it is little more than a fiction, unrealistic and unrealisable. In response, I assert a counter- (though equally brute) fact: that human relations including large scale inter-personal relations do change over time, have so changed, and will in all probability continue to change. To determine the causes, direction, tempo, and nature of change, we should recall the socially conditioned character of change, and the idea of agency as that which is capable of bringing it about. Iris Murdoch once described the ever-present moral attentiveness imperceptibly building structures of value around us, the ways we have of ‘refocusing’ to see things differently, as a form of freedom.46 Seeing things differently matters in politics, and can make things different, too. As discussed earlier, all notions of community above the level of the parish are cognitive and, in a way, fictive. EU-level affect, like national-level affect, is a mental construct. But political fictions mould the real world, and some are probably necessary to a free politics:47 ‘Because fictions are necessary, because we cannot live without them, we often take pains to prevent their collapse by moving the facts to fit the fiction, by making our world conform more closely to what we want it to be.’48 The community of rights is a semi-fiction that we could move our facts closer to, if we chose. And we ought to choose so, on the grounds that where the moral duties of agents require specific institutions, and where these institutions require constructive social

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relationships, then reasonable selves will agree that they must do all they can to foster cooperation and trust.49 A second objection relates to the sources of psychological motivation. Sceptics may claim that unlike the ‘warm’ and ‘instinctive’ feelings aroused by the idea of nation or class or local community, the idea of the community of rights is too ‘cold’ and ‘cerebral’ to be capable of animating people in the way that is needed to underlie citizenship. The first rejoinder to this must be that while many people do seem to have an emotional need for the kind of ‘warm’ and ‘instinctive’ group bonding that nationalists and others suppose, not all do; and we should hesitate before accepting such a need as reasonable. As Nussbaum observes, some people feel the temptation to want to reconstruct citizenship along family lines, ‘finding in an idealized image of a nation a surrogate parent who will do one’s thinking for one’.50 The second is that the demands on affect at this level will in any case be light – EU citizenship simply does not need to importune persons as comprehensively or intensively as national citizenship does. Thirdly, though the argument to the community of rights is theoretically independent of the contingent psychological dispositions of its members,51 its conceptualisation and the requisite motivations can be expected to develop alongside each other in real-life circumstances. The reflexivity and mutuality associated with reasonable selves are capable of progressive development, and have affective dimensions. As Gewirth writes, where communal arrangements are seen as aiming towards common ideals of social and moral excellence, such as the mutual respect for each other that I have outlined, citizens’ acceptance of their worth can prompt social sentiments of support and advocacy.52 Common institutions and policies can focus awareness of the extent to which one’s interests are bound up with the interests of larger groups, and supporting and making use of its institutions and policies will lead to agents’ acknowledgement that they share in both the burdens and the benefits of the polity.53 The repeating experience of successful cooperation between agents creates social bonds conducing to further cooperativeness and the formation of communal trust.54 These factors, after all, are also part of the story of how people came to believe they were linked together through nationality, or religion, or ethnicity, and to develop the sentiments that now appear to belong so naturally to those beliefs. One common ideal of social and moral excellence around which reasonable selves and citizens in the EU can converge is respect for autonomy-conducing diversity. That is the topic of the next chapter.

Notes 1 Karl Deutsch, S. Burrell, and R. Kann et al., Political Community and the North Atlantic Area: International Organisation in the Light of Historical Experience (Princeton, NJ: Princeton University Press, 1957). 2 Miller, On Nationality, p. 185. 3 Tamir, Liberal Nationalism, p. 96. 4 Michael Walzer, ‘Pluralism and Social Democracy’, Working Paper No. 14 (1997), Centre for Theoretical Studies in the Humanities and the Social Sciences, University of Essex.

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5 Canovan, Nationhood and Political Theory. 6 Will Kymlicka, Liberalism, Community and Culture (Oxford: Clarendon Press, 1989); Will Kymlicka, Multicultural Citizenship (Oxford: Clarendon Press, 1995); Taylor, ‘Shared and Divergent Values’; James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995), p. 184. 7 Westbrook, ‘One Among Millions: an American Perspective on Citizenship in Large Polities’. 8 See Habermas, Between Facts and Norms; Habermas, ‘Citizenship and National Identity: Some Reflections on the Future of Europe’; Habermas, ‘Struggles for Recognition in the Democratic Constitutional State’; Jürgen Habermas, ‘On the Internal Relation between the Rule of Law and Democracy’, European Journal of Philosophy, 3:1 (1995), pp. 12–20; Jürgen Habermas, ‘The European Nation State. Its Achievements and Its Limitations. On the Past and Future of Sovereignty and Citizenship’, Ratio Juris, 9:2 (1996). 9 Habermas, Between Facts and Norms, p. 39. 10 Habermas, Between Facts and Norms, p. 33. 11 Henry Sidgwick, Elements of Politics (London and New York: Macmillan, 1897); Mill, Considerations on Representative Government. 12 Dahl, On Democracy, p. 117. 13 Andrew Mason, ‘Political Community, Liberal-Nationalism, and the Ethics of Assimilation’, Ethics, 109 (1999), p. 263. 14 Caney ‘Liberalism and Communitarianism’, pp. 282–5. 15 Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London and New York: Verso, 1983); Ernest Gellner, Nations and Nationalism (Oxford: Basil Blackwell: 1983); E. J. Hobsbawm, Nations and Nationalism Since 1780: Programme, Myth, Reality (Cambridge and New York: Cambridge, 1990); John Hutchinson and Anthony D. Smith (eds), Nationalism (Oxford: Oxford University Press, 1994). 16 Canovan, Nationhood and Political Theory, pp. 71–2. 17 Anderson, Imagined Communities. 18 Miller ‘The Nation-State: a Modest Defence’, pp. 139–40; Miller, On Nationality. 19 Miller, ‘The Nation-State: a Modest Defence’, p. 141. 20 Walzer, Spheres of Justice. 21 Rawls, Political Liberalism, pp. 13–14. 22 Tully Strange Multiplicity, p. 10. 23 For empirical support for the view prevalent among political theorists – that institutions shape political affect – see Ronald Inglehart, ‘Trust Between Nations: Primordial Ties, Societal Learning and Economic Development’, in Karlheinz Reif and Ronald Inglehart (eds), Eurobarometer: The Dynamics of European Public Opinion (London: Macmillan, 1992); E. N. Muller and M. A. Seligson, ‘Civic Culture and Democracy: The Question of Causal Relationships’, American Political Science Review, 88:3 (1994). 24 Føllesdal, ‘Union Citizenship: Unpacking the Beast of Burden’. 25 This means that for immigrants being ‘British’ (a composite, artificial, civic nationality) – can entwine with being jewish, or muslim, or afro-caribbean, more easily than being ‘English’ (a more organic, naturalistic nationality) can. Tariq Modood, ‘Anti-Essentialism, Multiculturalism, and the “Recognition” of Religious Groups’, in W. Kymlicka and W. Norman (eds), Citizenship in Diverse Societies (Oxford and New York: Oxford University Press, 2000); Elizabeth Meehan, ‘Citizenship and Identity’ in Ian Holliday, Andrew Gamble and Geraint Parry (eds), Fundamentals in British Politics (Basingstoke: Macmillan Press Ltd/New York: St Martin’s Press, Inc, 1999), p. 248. 26 For example, Walzer’s position in Spheres of Justice, though he has not been consistent on the relation of morality and ethics. 27 Alasdair MacIntyre, ‘Is Patriotism A Virtue?’. 28 Alan Gewirth, ‘Is Cultural Pluralism Relevant to Moral Knowledge?’, p. 22. 29 Gewirth, ‘Is Cultural Pluralism Relevant to Moral Knowledge?’ p. 39.

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30 Gewirth, ‘Is Cultural Pluralism Relevant to Moral Knowledge?’, p. 42. 31 Alan Gewirth, ‘Replies to My Colleagues’, in Boylan (ed.), Gewirth, p. 212. 32 Monica Mookherjee, ‘Affective Citizenship: Feminism, Postcolonialism and the Politics of Recognition’, Critical Review of International Social and Political Philosophy, 8:1 (2005), p. 35. 33 Nicolaidis, ‘Our European Demoi-Cracy: Thoughts on the Constitutional Debate’. 34 Gewirth, ‘Ethical Universalism and Particularism’. 35 Oldenquist, ‘Loyalties’; Kekes, ‘Morality and Impartiality’; John Cottingham, ‘Ethics and Impartiality’, Philosophical Studies, 43 (1983); John Cottingham, ‘Partiality, Favouritism and Morality’, The Philosophical Quarterly, 36 (1986); Brian Baxter, ‘The Self, Morality and the Nation-State’, in Anthony Ellis (ed.), Ethics and International Relations (Manchester: Manchester University Press/Fulbright Commission, 1986); Bernard Williams, ‘Persons, Character and Morality’, in Williams, Moral Luck; Williams, Ethics and the Limits of Philosophy. 36 Williams, ‘Persons, Character and Morality’, p. 18. 37 Gewirth, Reason and Morality, pp. 241–2. 38 Gewirth, The Community of Rights, p. xv. 39 Gewirth, The Community of Rights, p. 91. 40 P-J. Proudhon, The Principle of Federation (trans. Richard Vernon, Toronto/Buffalo/London: University of Toronto Press, 1979), p. 40. 41 Waldron, ‘Minority Cultures and the Cosmopolitan Alternative’, pp. 791–2. 42 Onora O’Neill, ‘Justice and Boundaries’, in Brown (ed.), Political Restructuring in Europe. 43 Judith Lichtenberg, ‘National Boundaries and Moral Boundaries: A Cosmopolitan View’, in Peter G. Brown and Henry Shue (eds), Boundaries: National Autonomy and Its Limits (Totowa, NJ: Rowman and Littlefield, 1981), p. 94. 44 There are a small number of cases at the margins, as noted in Chapter 4 – those persons in a persistent, thorough, and irremediable vegetative state, for example, but since they are so rare they can be set aside for our purposes here. 45 Erskine, Embedded Cosmopolitanism. Here again arises the difference between us noted in endnote 10 of Chapter 8. I agree with Erskine that the self ’s scope of ethical concern may be constituted by memberships of several communities, but diverge in holding that the scope of the agent’s moral concern is universal and constituted by what is required for consistent agency as such. 46 Iris Murdoch, ‘The Idea of Perfection’, in Existentialists and Mystics: Writings on Philosophy and Literature (ed. Peter Conradi, London: Chatto and Windus, 1997), p. 329. 47 Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (New York: Norton, 1989), p. 14. 48 Ibid. 49 ‘If A has a duty to do X, and if his doing Y is highly conducive to his doing X, then A has a duty to do Y if doing Y is in his power and if it does not involve his violating any of his other duties.’ Gewirth, Self-Fulfillment, p. 136. 50 Nussbaum, ‘Patriotism and Cosmopolitanism’, p. 15. 51 Both normatively, in that it has independent logical warrant, and empirically, in that a mutualist institutional structure, since it bears on social bonds institutionalised by rights recognition, is theoretically compossible with egoistic psychological dispositions – though one might well want to argue that in this case the mutualism would be so prudential and attenuated it might hardly continue to qualify as such. 52 Gewirth, The Community of Rights, pp. 93, 98. 53 Gewirth, The Community of Rights, p. 98. 54 Gewirth, The Community of Rights, pp. 98–9.

10 The good supranational constitution

In Chapter 5, I argued that political agency was inherently collective. Agency’s being political at all presupposes social interaction. For reasons of both practicability and normative satisfactoriness, decision-making on matters of public interest needs to take place between agents in concert. Chapter 9 treated relations between individuals simpliciter; this considers relations between pre-constituted groups. Political agency involves the formation of collective political subjects mobilised around the pursuit of collective substantive purposes. Substantive purposes embody values, and, just as individual agents hold and pursue differing values, so too do the collective political subjects they compose. If agency is, as I have supposed, power in freedom, this raises some questions about how such collective agents might co-exist, and how such substantive purposes might be coordinated – or conflicts between them dealt with. For a number of reasons, not least increasing levels of freedom, prosperity, and education, societies are becoming more diverse and pluralistic and this is likely to be a permanent feature that cannot (and ought not to) be eradicated. For a society to be more internally pluralistic means that it will contain a variety of ways of seeing the world, of different ways of life, and a variety of views about what makes for ‘the good’; different individuals, and different groups, will have different and perhaps competing or even conflicting ideas about how society ought to be arranged, what policies the political institutions should pursue, etc. This provokes the question: what role ought social values, including ideological or religious principles, play in a polity? In many areas of public interest, if the political institutions were to decide on a measure or policy in certain ways they would thereby favour the position taken by one set of people over the positions taken by other sets of people. But this appears to conflict with the principles of freedom and equality on which liberal democracies and social democracies base their claims to legitimacy: if citizens are to be treated as equal, on what principled basis could, or should, political institutions decide in ways that promote the values of just one

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section of society over those held by others? And if the citizens are to be treated as free, on what principled basis could, or should, political institutions impose policies that lead people to live their lives one way – the way the polity favours – rather than some other way that the individuals or groups may themselves favour, or would have favoured had they been left to their own devices? We can see now that one crux of the problem of reconciling autonomy with freedom and in resolving or at least mitigating the tensions between individual agency and collective agency is the question of how values should enter politics, especially in circumstances where rival values asserted by different social groups are in dispute. Among the many kinds of group-formation and mobilisation in the EU, one – the member state – is especially salient, because it is the most comprehensive and powerful collective subject, and because it is the original source of the EU itself. What role, then, ought substantive values to play in a multinational confederal political system such as the European Union? Since the EU is internally heterogeneous historically, institutionally, socially, and culturally, the way it deals with different groups living by different principles and beliefs (both nationally and trans-nationally) is absolutely central to its standing and to its constitution as a framework of political authority. How should the plural and varied purposes of EU and member states, and other types of associations across and within member states, be reconciled? These are all matters of daily controversy within the public spheres of debate in the EU, and they are controversies about freedom and about power: the freedom to live by values freely adopted by oneself as an agent, including in concert with other agents, and the power to impose values on other agents. That is to say, these are constitutional matters. The constitution of a polity is a settlement, for the time being, of dispensations and dispositions of freedom, power, and value. All working political entities have a constitution, in the sense of having an anatomy of power, function, and role; not all need have a Constitution, in which that anatomy is set out in documentary form. Current uncertainties about the status of the EU’s Constitution abound, but nonetheless the constitution of what we now know as the EU perseveres after half a century. Whether or not a text called ‘The Constitution’ is ever adopted within the EU, matters of freedom and of power will continue to be central to it.1 A variety of answers to these questions about the appropriate relationship between values and principles on the one hand, and political institutions, workings, and policies, on the other, can be given, and each answer posits a model of the kind of polity the EU could become. This chapter will advance one specific answer – I will call it ‘impartial perfectionism’ – to the question of how values and political authority might be treated within the EU, on the grounds that it is defensible theoretically, pragmatically, and normatively.

Diversity and power Where conditions of freedom and well-being obtain, we should expect considerable social pluralism. While the idea of political agency seems to lead us to a unified

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political subject or subjects, individual agency suggests variety: persons freely and autonomously formulating their own aspirations and goals, making their own commitments and associations. Cultural diversity may hinder the formation of a unified all-encompassing collective agent (the nation, the state, the demos), but on the other hand may provide sources, and opportunities for cohesion, able to motivate the formation of alternative and less encompassing groups. Social diversity is not conceptually necessary to the idea of political freedom, but in practice it plays an important role in conceptions of a free polity since it gives rise not only to heterogeneity of value but bears importantly on power. All polities strive to resolve the relationship between freedom, power, and diversity. For some polities – multinational confederate unions, for example – striking the right balances between these might be crucial to survival, yet difficult to pull off. The greater the social diversity, the wider the divergences in purposes, perspectives, and interests to be expected. How might great social and political diversity be accommodated within a single political system? Generally speaking, three approaches are available. The first aims to reduce divergence of perspective or perceived interest, by constraining social diversity, or constraining the way it enters into politically salient identities. The second aims to impede domination by any particular group perspective or interest, by constraining mobilisation and dispersing power and capacity across numerous sites. The third aims to neutralise particularist biases in political output by constraining the tasks and purposes of political institutions. These are not mutually exclusive strategies, and actually existing polities, if they are internally diverse and operating successfully, probably incorporate elements of all three. Nonetheless, they do imply contrasting models of society and polity, and different polities will display characteristic emphases on one or another, place differing weights on each, and combine them in different ways. The first – reductive – strategy attacks the prospects for a politics of difference. Social heterogeneity may or may not be highly valued on another calculus, but as far as the effectiveness of politics is concerned it is seen as a hindrance; as a problem that has to be overcome. This is because the lack of a homogeneous demos may confound the workings of political institutions, which depend on trust and propensities to compromise, and also preclude the formation of majorities for certain policy choices. Social and cultural diversity has been thought to be troublesome for notions of autonomy or collective agency, because difference may be a bar to exercising agency, but also because it appears to call into question the notion of a unified collective actor authorised to encroach on, for example, property rights.2 In terms of policy solutions, of course, social diversity can be repressed, but this is not a method with much to recommend it from either a prudential or a moral standpoint. Other possibilities for overcoming the ‘problem’ of social diversity are (a) partial cultural assimilation and the promotion of a veneer of cultural uniformity atop strata of cultural difference; (b) fostering agreement, or an overlapping consensus, on core principles and institutions, or (c) depoliticising identity issues, by shifting them from the political arena into the arena of private life and private choice. All three of these amount to carving out zones of convergence at

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the political level able to co-exist with multiple zones of divergence in non-political life, but while the first attempts partial convergence of underlying social attitudes and norms, the second aims for a convergence at the institutional level that leaves prior social norms just as they were except in so far as they must adapt to be compatible with that institutional convergence, and such adaptation is helped by the third move, which displaces potent areas of conflict into the realm of the politically inconsequential. Habermas’s idea of ‘constitutional patriotism’, in the context of his work more generally, is an example of (b) above, but relying on (a) as a minor key; while Rawls’s idea of ‘overlapping consensus’, in the context of his work more generally, is also an example of (b), but this time relying rather on (c). What recommends this overall approach is its explicit awareness that a decent polity is ultimately unworkable without a decent society, and it must therefore help to foster civility, mutuality, and perceptions of commonality across the many social and cultural divides that might, if left untended, lead to cultural balkanisation with all its indifferences, ignorances, suspicions and hostilities. The main objection to this strategy is that it focuses effort entirely on the ‘software’ – people themselves, their perceptions of their cultures and their identities – in the hope of modifying people’s whole sense of self. This blanket approach is in many respects simply too wide-ranging, reaching well beyond the realm of the political into all areas of life. It also runs the risk of encroaching on persons’ freedom to create, negotiate, and determine their own affiliations, identities, and meanings.3 The dispersal strategy, on the other hand, aims to preserve a certain complexion of diversity: one in which concentrations of power cannot emerge. Where the reductive approach thinks heterogeneity brings fragmentation, to be overcome by constructing or discovering a core of unity, those favouring the dispersal of power and influence see such fragmentation as a solution, answering to a very different kind of problem: that of domination. For that reason the ‘dispersal’ outlook is suspicious of attempts at wide mobilisation, or concentration around core values or political institutions, since this may provide the conditions allowing domination to flourish. A strategy of dispersal prescribes the very opposite of concentration – the multiplication of political sites and opportunities for access and for veto. The tenor of this approach is anti-majoritarian. Whereas the objective of a reductive strategy is to neutralise diversity in order to facilitate political action, the dispersal strategy harnesses diversity in constraint of it. At its crudest, this can be achieved by provoking institutional paralysis. Writers as different as Acton and Proudhon took pains to endorse social pluralism within the polity precisely because they thought it acted as a brake on despotism. Acton, writing in the heyday of British Empire, was in no doubt that a multinational political system was the best guarantor of civil liberties. In his view a diversity of nations within one state is the test, as well as the best preserver, of negative freedom: it balances interests and multiplies associations, provides a corrective to the ‘intolerance of social freedom’ natural to absolutist powers, maintains the independence of nations from central authority, and erects firm barriers against any governmental propensity to move beyond ‘political’ to ‘social’

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regulation4 – in other words, from policies securing negative rights to those promoting positive rights. From a quite different point on the political and philosophical spectrum Proudhon argued that a multiplicity of loci for individuals’ political attention and allegiance prevented a tyranny of heart and mind.5 Social and cultural diversity is an ambivalent value for republicanism, because on this point there is a stark divide between classical and neo-republicans. In the classical tradition such heterogeneity was subsumed within a common citizenly virtue buttressed by a common culture or ‘civil religion’ and incorporating a strong notion of patriotism. Some current understandings of republicanism are similar – the republican idea of citizenship in today’s France, for example. The modern inheritors of this strand are found among upholders of popular sovereignty, usually expressed through strong notions of statism and nationalism. Neo-republicans, by contrast, have not only abandoned a commitment to social homogeneity, but have made diversity a constitutive feature of a refashioned republicanism.6 Between classical republicanism and modern neo-republicanism we find Madison, a founding father of the American republic and forger of a continental patriotism who believed the greater the variety of interests, parties and sects in a polity, the less likely the danger to individuals from ‘interested combinations of the majority’.7 The strength of this approach is that it avoids the problems of the reductive approach. The dispersal strategy eschews attempts at social or ideational engineering. It takes people as they are, with their multifarious preoccupations, standpoints, and allegiances, and focuses effort instead on the institutional and constitutional apparatus to ensure that whatever the social and cultural factors actually are, they do not translate into disproportionate political strength or weakness. However, it too is indiscriminate, in that within the realm of politics it fails to distinguish between particular projects and tasks. Successful achievement of some political endeavours may be impossible without widespread mobilisation or the concentration of power, and these may be political endeavours that are entirely justifiable and perhaps devoutly to be wished – the guarantee of fundamental human rights protection, for example. On the other hand, it is possible to envisage how a policy attracting only weak support by one faction and dislike by all others might nevertheless come to be adopted as a foreseeable but unintended consequence of ‘package deal’–type bargaining processes across multiple groups or loci of power – so dispersal in itself is far from being a cast-iron safeguard against intrusive or tendentious political measures. Even deals that have been painstakingly stitched together between multiple sites and actors may have outcomes that are detrimental to freedom and equality in conditions of social diversity. The third and final strategy is that of liberal neutrality, which aims to discriminate those measures that are proper matters of concern for common political institutions, and on which they may legitimately take an encouraging or discouraging position, from those that are not. Neutrality exploits the distinction between morality and ethics. Let us briefly recall it: we refer to morality to discover what to do and what not to do as moral agents in our relations with others, while conversely ethics bears on how we, as individuals or as members of particular

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groups, want to be – what sort of character we want to develop, and what sort of life we want to lead. Since morality is always universal, while ethics are particularistic, the persons in any society (it is held) can agree on the requirements of justice even where they disagree amongst themselves on what makes for a good life. The ‘neutralist’ school stipulates that the polity’s institutions should be restricted to upholding justice, and should otherwise remain neutral between the different conceptions of the good held by its various citizens.8 Neutral, that is, in the sense that the institutions’ laws and policies should not set out to promote specific values that may be important to some groups in society but not to others, since were they to do so they would be privileging some citizens’ values over those of others. Therefore, the polity must uphold a framework of moral relations between persons, but leave them free to decide for themselves how to live their lives. If the political framework were instead to support one of the many conceptions of the good held by its citizens, then that would amount to an authoritarian imposition of values upon people who had not chosen such values for themselves. This would violate the freedom and the formal equality of citizens that are fundamental criteria of political legitimacy in liberal democracies, and also could threaten social stability. (This position rests on the supposition of course that the values of freedom, equality, and stability are normatively ultimate.) So, for example, political institutions should uphold the laws of contract and property, and criminal law, but should not give tax incentives to encourage marriage, or subsidise theatres. Now this approach has the undoubted merit of focusing attention in the right place, since the larger problems of how to deal with the competing pressures bearing on freedom, power, and diversity are best tackled at the point where they rub, and that point is the formation of rules and norms, and the allocation of values and resources. From hereon this chapter will also construe the problem of free heterogeneity within the polity as residing chiefly here, in the translation of particular values into polity-wide laws and political measures. So it would appear that liberal neutrality perhaps holds out the best hope for a multinational and multicultural European Union. But liberal neutrality is not without critics, and before we move to embrace it, it will be worth looking at a contrasting position – that of perfectionism – to see what neutrality’s shortcomings might be, and how the opposing resources of perfectionism might help in constructing a viable and attractive ethos for the EU. Perfectionists, in contrast to neutralists, believe that political institutions ought not to be neutral but to have an active orientation to ethics in their laws and their policies – it would, in their view, be irresponsible for the polity not to adopt a view on what is to be encouraged and discouraged between persons, and to design and implement policies in order to promote certain virtues and outcomes. Perfectionists therefore have to have in mind a conception of the good that the polity should be acting to achieve, but they do not all have to have the same conception in mind – indeed, theorists differ as to what the good life consists in. Between perfectionists there are not only different accounts of the good, but different ways

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of arguing to it. They may uphold a subjectivist theory, and claim that the particular society has a characteristic set of its own values, national or religious perhaps, that ought to be promoted by its political institutions. (This in effect rejects either or both of the neutralists’ claims that (a) societies are not homogeneous and (b) the polity should treat all its citizens’ conceptions of the good equally.) Objectivist theories of the good by contrast hold that there are excellences or values that can be shown by rational argument to be objectively good, whether or not they are those traditionally associated with the society in question. There are very many candidates for these excellences, and theorists disagree themselves about which of them can survive reasoned scrutiny, but some examples that have been argued for are: civic responsibility, professional expertise, loving relationships, intellectual or physical activity, economic self-reliance, autonomy.9 Since their status as objectively good things means they are not arbitrary preferences, political institutions may or must promote them. (This rejects the neutralists’ scepticism that we can identify, or having identified come to agree on, an ultimate order of values.) To sum up, neutralists and perfectionists differ on two points: (1) the type of values political authority should aim to secure (for neutralists moral only, for perfectionists moral and ethical), and (2) the polity’s reasons for doing so (to uphold justice, or alternatively to promote what is good). Neutralists believe the perfectionist position imposes sectional values and is thus authoritarian, while perfectionists believe that liberal neutrality affirms indifference and allows political irresponsibility. Despite these gulfs, there is a range of values on which both positions could converge, even if for different reasons. That is, there are some values such that neutralists could support state action toward them on the ground that they are needed for the basic conditions of morality to be in place, while perfectionists could support them as components contributing to a certain complexion of ethical life. Some neutralists, for instance support welfare policies because it is argued that unless individuals have minimal levels of well-being (clean water, food, shelter, basic healthcare) the conditions of justice are not in place (and indeed it is often thought that justice consists in large part in the right distribution of such goods) while perfectionists could support the same policies from commitments to ideals of solidarity, or physical excellence, or the pursuit of happiness. On the other hand, some perfectionists argue that political institutions should promote values such as rationality and liberty, as these then allow persons to reflect on and order their other values themselves, and this is consistent with the neutralists’ sociological assumptions of modern value pluralism. The differences are perhaps narrowest between neutralists who are also liberal egalitarians, and so support that role for political institutions and that complex of policies for which we use the shorthand term ‘welfare state’ (such as Brian Barry),10 and liberal perfectionists who press for the polity’s institutions to actively advance personal autonomy (such as Joseph Raz).11

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The good (supranational) polity?12 From the conception of the good compatible with Gewirth’s theory of human rights surveyed in Chapter 8, it is clear that although the PGC is fundamentally a liberal principle, and though it is underdetermining of human relations and of political goals, the mode of engagement the PGC endorses is not wholly neutral13 as neutralists would understand the term. In human relationships, neutrality is too often the alibi for indifference or neglect. In Gewirth’s political philosophy, as we saw, the good polity is one in which liberal neutrality is moderated by imperatives arising from both the morality of the PGC and by an ethos of capacity fulfilment. For example, the protection of human and political rights needs enabling mechanisms, such as education, and this means the political institutions must actively assure such mechanisms. Agents must have rights to pursue wealth and income, but these are contingent on constraints of mutuality, and others’ rights to capacity fulfilment moderate our possibilities to benefit from the lowering of their opportunities for creative and satisfying work. Further, as I argued in Chapter 9, the great significance of purposes and purposiveness for agency implies that agents must not merely tolerate pluralism but positively welcome and encourage it and also the conditions that allow it to flourish, including mutuality of concern and respect; and, as I argued in Chapter 5, agency entails effective possibilities to contribute to the shaping and constant reshaping of the contexts of such pluralism, as well as obligations to assure those contexts. From these considerations, I derive a set of goods that, I contend, are underdetermining of individuals’ substantive commitments to particular religious or ideological or social values, but are instead capacities that might underpin all such commitments, and therefore ought to be supported and promoted by political institutions. They follow from Gewirth’s universalist morality and the ethos derivable from it, and arguably are the minimal set required for coherence and consistency if we want to construe a position avoiding the Scylla of value authoritarianism (as charged against perfectionists) and the Charybdis of moral irresponsibility (as charged against neutralists). Taken together, these goods comprise a generic ethos, and furnish criteria against which the EU or a similar framework of supranational governance might be tested. So, what are these values that the polity should guarantee and endorse? They are: 1 minimal goods and capacities needed to meet the fundamental rights of individuals and enable their functioning as agents, specifically (a) basic levels of physical and psychological integrity and well-being, (b) freedoms of thought, speech, movement, conscience, association, political participation, and access to justice, (c) education, (d) effective opportunities to gain and exchange income, wealth and property; 2 social bases of self-esteem and self-respect, including parity of consideration and mutual recognition; 3 meaningful ranges of cultural, social, and economic options to allow individuals to make worthwhile choices about how to live their lives;

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4 effective powers to help shape those ranges of options and the larger structures and contexts that in turn preclude or produce them. Some comments on each are in order. The capacities enumerated under (1) above should come as no surprise, since they are required by Gewirth’s moral theory in its most basic formulation. They must therefore be the bedrock principles of the constitution: without them, the constitution of the polity will lack moral warrant. The three additional principles, or criteria, above, will help to ensure that the EU is also a good polity, one that is conducive to agency and to the self-realisation of diverse selves. The polity’s active concern for the social bases of self-respect and esteem ((2) above) links to debates highlighted in the politics of mutual recognition – the idea that harms or inequalities, and also benefits, can spring from the symbolic as well as the material treatment of individuals. People from time to time systematically demean others on account of their skin colour, economic class, gender, ethnic origin and similar characteristics. This harms those disparaged, and may impede their opportunities for education and employment and, consequently, the further goods those capacities may secure. The proper role of the political institutions is therefore twofold: to outlaw such denigration, so as to protect the social bases of self-esteem and self-respect, but also to positively affirm the worth of each individual as the holder of aspirations and purposes (insofar as those aspirations and purposes are not immoral). Because such goals and projects are very diverse and (as we saw in Chapter 9) interwoven with collective selves, group definitions, and other cultural contexts, the polity must also value the diverse PGC-compliant ways of life that provide context and meaning to people’s ongoing lives and endeavours, and should also promote mutual recognition between different groups within its territorial jurisdiction. This is similar to the ‘structural autonomy’ Mookherjee defines as ‘the basic, freedom-related capacity which accrues to a person through a public respect for her cultural values’.14 The requirement for a range of meaningful options in (3) stems from (2) and (1(b)) especially. The conditions for active freedom need to be in place. Where people’s choices could not be otherwise than they are – for lack of an effective range of sufficiently different options from which to choose – then people are not able to act autonomously. Furthermore because there ought to be a plurality of different ways of life, social and occupational roles, and group-based identities, the polity must positively affirm – not merely tolerate – pluralism. This follows too from the fuller implications of agency explored in Chapter 5, and that account also provides (4). Though agents must have real choices, they must be possibilities carved out by equal agency itself – otherwise it will be recipience that is institutionalised, not agency. In effect, this set of guiding principles projects a certain model polity that embodies what neutralists find valuable about neutrality – its impartiality – while discarding what perfectionists find disagreeable about neutrality – its irresponsibility. For these reasons I will refer to it as ‘impartial perfectionism’. It is impartial because it does not specify the contents of particular conceptions of the good in

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the sense of determining how persons must exercise their capacity fulfilment, and nor does it rank conceptions of the good: all it says is that there must be some, in the plural. It achieves impartiality also in that rather than abstracting from all conceptions of the good it is even-handed between them. (Though this evenhandedness is deducible from the PGC and therefore impartial perfectionism’s commitment to diversity presumes on the comprehensive values of the underlying theory.) As persons we are at liberty to exercise our capacities of judgement and decide (contra Bentham) that poetry is of greater value than pushpin, but if pushpin embodies worth and significance for some and poetry embodies worth and significance for others, then all that the theory requires is that as citizens we ensure that we have both possibilities available to us. This position is perfectionist in its political commitment to capacity-fulfilment, and in holding that moral agency and political agency are best realised where political, economic, and social institutions nourish individuals’ prospects for capacity-fulfilment. Impartial perfectionism is advocated as especially apt for a very diverse political association because it is able to co-exist alongside and support a wide variety of ways of life – though not all possible ways of life. Ways of life and conceptions of the good that breach the basic moral requirements of equal individual freedom and well-being will be found unacceptable: for example, doctrines of, and practices founded on notions of, cultural or racial or sexual superiority, will conflict with it. But once these impermissibles are ruled out, this generic ethos upholds and welcomes a great diversity of conceptions of the good with their associated traditions and customs and aims. Its four central goods or capacities are valuable because they allow individuals and groups the maximum freedom to follow their own customs and conceptions of the good that is compatible with a like freedom for others. In that way, this short list strikes the optimal balance between autonomy of individual action, just and stable social integration, and diversity of being and experience. Moreover, impartial perfectionism may be able to attract support from both liberal egalitarian neutralists and liberal perfectionists. Those favouring neutrality should find it acceptable in that it alights on the same goods as they are inclined to favour, and for much the same reasons: it preserves the possibility of heterogeneity, conforms to requirements for equality and freedom, and contributes to the stability needed for the maintenance of justice. Liberal perfectionists should endorse it for similar reasons, but also because for them the autonomy and pluralism it mandates are not only necessary conditions for a flourishing and satisfying life but are constitutive of it. Further, since this list mandates pluralism, it positively affirms more extensive or substantial perfectionisms within parts of the whole, so long as they are not inconsistent with its basic tenets.

European Union, and the good So far the discussion has proceeded as if we were considering the role of values within a unitary and hierarchical political order. Writers on neutrality and

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perfectionism, and morality and ethics in political life, tend to assume that the polity they are philosophising about is the nation-state. But the European Union is not a state, and does not have a unitary political hierarchy. So it is not obvious that the normative theoretical debates about neutrality and perfectionism, which assume a nation-state, can be transferred and applied to a different kind of setting, such as the EU. On the other hand the EU does allocate, adjudicate, and promote values, as its laws, its policies, and most recently its proposed Constitutional Treaty, demonstrate.15 And, as we saw in Chapter 6, neither the force nor the structure of theoretical argument of themselves depend on particular forms of political organisation. In principle, thinking on these issues, once suitably decontextualised, can be carried from conventional nation-state applications to more loosely defined frameworks of political authority. So we cannot escape the need to reason methodically about the way values are dealt with at EU level. The problem we are left with is how we might apply this discussion about how to treat values politically to a polity with the structural and social features of the EU. For instance, the argument for state neutrality rests on the unitary, hierarchical, and encompassing nature of the state and the value-authoritarianism that would be the consequence, under these conditions, of adopting any particular variety of perfectionism. Given different conditions however, such as a supranational level of policies and institutions obliged to positively promote the continuing cultural and institutional diversity of its multiple members (as in the third of the four goods listed above), value authoritarianism of the kind neutralists reject would be ruled out. However, because of that core requirement, the case for neutrality of the kind frequently advocated for states cannot carry over to the EU (regardless of how persuasive one finds that case to be for the state). The conception of the good implicit here is an affirmation of free value-diversity itself, and this is arguably a conception of the good that is presupposed by all theories of neutrality as well. In other words, impartial perfectionism is a public philosophy we can all in a pluralistic EU subscribe to, because it actively promotes public mutual recognition of ourselves as culturally situated holders of universal rights and differing ethical attachments.

Feasibility? Applications? So far we have examined the issue of values from a philosophical standpoint, but it may be of interest to extend the discussion to concrete topical debates. First, is impartial perfectionism at all realistic? Does it pass a basic test of feasibility? Well, let us consult the EU’s proposed Constitutional Treaty of 2004, where an attempt was made to set out the Union’s values. The text was not, naturally, an exercise in political theory, and its values were therefore not presented as parts of a reasoned argument, constrained by the demands of coherence and critical rigour. But in many respects the picture of its values and aims and objectives presented by the Constitutional Treaty is not dissonant with impartial perfectionism. Title 1 declared the EU’s adoption of, and indeed active promotion of, a number of values

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including non-discrimination, and lauded the importance of diversity and respect for member state traditions. Article I–18 of the Constitutional Treaty aimed to establish an official motto for the Union: ‘United in diversity’. Article I–1, indent 2. stated the criteria for membership: ‘The Union shall be open to all European States which respect its values and are committed to promoting them together.’ What are those values? They are enumerated in Article I–2: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’16 If impartial perfectionism were indeed to become the guiding philosophical perspective of the EU, as I am advocating, what might that imply for its component parts and its individual citizens? Well, far too much to be outlined in what remains of this book, but some suggestions can be tentatively and briefly aired for indicative purposes and in the hope of stimulating further thought. The following remarks address three areas of debate in which the idea of impartial perfectionism has purchase: relations between EU level and sub-units; cultural compatibility or incompatibility and entry criteria; and political secularism. First, in an EU embodying impartial perfectionism, existing sites of social and cultural association and significance (not only the member states and subnational regions) would retain their cultural autonomy, just so long as their traditions and ways of life did not conflict with the EU institutions’ requirements to uphold the four classes of goods (rights, esteem, options, effective powers). Ways of life that are oppressive or exploitative or brutal would of course already have been ruled impermissible because they violated one or more of the basic goods of (1). Note that sub-units would not merely be permitted to retain such autonomy but might be obliged to do so, since otherwise it could be objected that the EU level would not be upholding a range of valuable cultural options for its citizens. The member states and other component parts of the EU, such as associations in civil society (transnational or otherwise) would have to act in ways that did not undermine the EU’s promotion of the basic goods (conditions of well-being, freedom, education, opportunities for productiveness). This would not necessarily mean in each case that they had also to promote the good in question over and above merely securing it; but it would mean that it would be permissible for them to do so, and not permissible for them to prevent the EU’s active promotion. A critical question here is what the notion of ‘active promotion’ by supranational institutions might imply in terms of their relationship with member states’ institutions, especially where the states’ institutions in question are upholding rather than positively promoting a particular good. It seems to me this can be given neither a general nor an a priori answer but will depend very much on the specific details of each case. It need not entail constant EU-level pressure on states to conform to a uniform pan-European policy nor lead to a usurpation of national parliaments’ legislative privilege. For example, most of the EU’s function of actively

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promoting its citizens’ physical well-being may be sufficiently performed in normal circumstances by its background monitoring and support of the relevant laws and policies of member states (ranging from constitutional protections of the person to policies of public health) together with flanking policies in fields such as consumer protection, working conditions, and regulation of pharmaceutical standards. However, from time to time there may be good reason to suspect that a background role is not sufficient – as in the BSE crisis – and then the EU ought to intervene actively, to positively promote well-being, by forging a constructive partnership amongst the the relevant parties. In respect of the self-esteem of individuals and groups and mutual recognition, again the member states in their internal affairs must uphold this but need not positively affirm it, though if they wished to do so, that would be permissible (and laudable). What they would not be permitted to do is to allow the denigration of persons or groups. Again, there may sometimes be good reason for finding a ‘hands-off ’ approach by the EU level of institutions insufficient, and then they would be both entitled to and required to intervene cooperatively to put matters right. In these matters, the supranational institutions would have to judge whether the promotion of a specific value in a particular context would be best secured by institutional restraint or institutional assertion. There are certain things states may not do – fail to uphold basic values, or turn a blind eye to systematic cultural denigration, for example – but once these fundamental moral requirements were met, member states would have three options available to them. They may tend towards neutrality, so long as it complied with the PGC, adopt impartial perfectionism as also adopted by supranational institutions, or (most likely) continue to develop their own brand of perfectionism, that development based on the values of their own historical and cultural traditions in informed and constructive engagement with others and the evolving traditions of those others. So long as a state’s version of perfectionism was compatible with the PGC, then it would be a welcome addition to the cultural pluralism the EU is bound to promote. Even where states adopted impartial perfectionism as elaborated, there would be room for diversity among states in their interpretations of the goods (for instance, between maximal and minimal understandings of what is required), in the varied emphases between goods, and in the specific details of their implementation, since their policy implications would be developed within the contexts of prior traditions, norms, and needs. In short, impartial perfectionism at EU level would leave member states a wide degree of latitude within a set of moral constraints. Indeed, it insists they have such latitude, precisely because the EU level’s impartial perfectionism necessitates there being a context of choice for individuals – including a choice between states striking different balances along the neutralist–perfectionist continuum. The requirement for the EU to promote meaningful ranges of options would mean that its citizens must be free to, but also able to, move around and settle in geographical, socio-economic, and cultural spaces of the EU as prompted by their own tastes, choices, affiliations, and aspirations. Just as the EU already offers its

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citizens large states or small states, forests or plains, cities or villages, sunshine or snow, so it should ensure citizens can effectively shape their lives by choosing where and with whom to live and work according to non-physical criteria: traditional or progressive, social-democratic or neo-liberal, religious or secular, etc. The perfectionist element and the EU’s need to uphold self-esteem (both of individual and of collective ‘selves’) would require the EU to treat forms of life and association as valuable, and the impartiality criterion would entail that the EU must treat all PGC-compliant instances as valuable without asserting that some have higher value than others, so it must ensure that there are spaces where the self-esteem of each may find hospitality. Were there no EU level of institutions to maintain impartial perfectionism, the normative argument that each state be obliged to do so would be strengthened, but since the EU level guarantees wide ranges of meaningful choices with respect to the social, economic, and political spaces in which persons may elect to live their lives, the normative expectations on individual states to do the same, though still strongly warranted, may be somewhat relieved. One highly topical and controversial debate is about the need for cultural compatibility among member states and citizens, and it is most sharply focused on the question of Turkey’s possible membership of the EU. Critics of Turkish entry often charge that there are too many value incompatibilities between, on the one hand, the citizens of Turkey, and, on the other hand, the citizens of the current twenty-five states plus those of Croatia, Romania, Bulgaria, other states of the Western Balkans, and Ukraine (all of whom have applied or expressed an intention to apply for membership), for such a relationship to work.17 This seems, on the face of it, pretty implausible (not least because some of these prospective entrants would likely score very poorly indeed if tested against the same criteria that are said to disfavour Turkish entry), but as a theoretical stance impartial perfectionism does not state a view on whether these charges of incompatibility between ‘Turkey’ and ‘Europe’ are empirically well founded. Instead, it engages the underlying and more general question of how social and value pluralism ought to be approached from a moral standpoint. These matters are important to clarify within the European Union whether or not Turkey joins. They throw a light on what the EU’s oft-vaunted claims to appreciating ‘unity in diversity’ really amount to, and provide food for thought as we assess the EU’s prospects for becoming a vibrant and creative social and political space, at ease with a variety of free citizens, for the future. If ethical values ought to play no role at all in political association, then it is hard to see why the holding of different values by a prospective entrant, even if such differences were to be established by evidence, should disqualify it from membership. Alternatively, if values ought to have a role, and amongst the values endorsed by a political association are commitments to diversity and to non-discrimination and to tolerance, it is again hard to see why cultural difference, where it existed, should harm an applicant’s chances of acceptance. On the other hand, because the EU is formally committed to promoting (PGC-compliant)

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difference, consistency demands that whatever (PGC-compliant) cultural and religious dissimilarity there actually is ought to help, rather than hinder, a prospective member’s application to join. If a country like Turkey were to join the EU, having met the entry criteria set out by the EU and thus having demonstrated compliance with the PGC, the range of options for living available to EU citizens would be expanded; and, since the EU must promote a range of meaningful options, it ought to welcome Turkey for the unique contribution it can make to the diversity of European life. A de-militarised, secular, and democratic Turkey with a successful, modern, well-educated and prosperous Muslim population could be a significant asset to EU citizens, perhaps allowing paths to capacity fulfilment they do not currently enjoy. A more relaxed and open-textured relationship between Turkey and other parts of Europe would also help to rebut the appeal of both Christian and Islamic fundamentalism. It might be worth observing at this juncture that the ethos for a free and peaceful pluralistic political association as outlined here is precisely one that a fundamentalist of any religious persuasion would be unable to accept – and fundamentalists of different faiths would reject it for the same sorts of reasons. A somewhat associated debate is that about whether any eventual Constitutional text for the EU ought to give privileged mention to religion (the religion in question being Christianity) or whether on the contrary the EU ought to be constitutionally secular. The Convention that drew up the draft Constitutional Treaty contained divergent views on these matters.18 We have, of course, been here before. A goodly part of the last millennium was disfigured by the long religious strife in Europe, and what helped to end it was the principle of the separation of church and state: that is, the carving out of separate spheres of authority and action for politics and for religion, a strategy acknowledging that politics deals with the problem of how people may live with each other, while religion addresses how people may live in accordance with divine will. Arguably, this principled separation of spheres has until now helped to maintain some continuing integrity for both. Perhaps in the new millennium we need to remind ourselves of the hardwon lesson that politics, the art of the possible, cannot survive when its protagonists claim exclusive access to infallible truth and absolute right to impose it on all. On the contrary, politics presupposes the legitimacy of disagreement, extending even to faith, and is the means of living least coercively with it. Within the EU, a number of religious faiths have adherents, and many people are agnostics or atheists or adhere to non-religious doctrines such as philosophical humanism. Since the EU must promote self-esteem and mutual recognition amongst all within its jurisdiction, it must affirm the worth of all (morally permissible) purposes whose meaning derives from within particular cultural contexts, and this means it ought not to give preferential treatment to any particular culture or faith or non-religious conception of the good, nor discriminate against any of them. So the EU Constitution must be resolutely even-handed between conceptions of the good, including different religions and non-religious philosophical viewpoints, so long as they comply with the basic morality of the PGC. In that sense, the supranational level must be secular.

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Europe is occasionally conflated with ‘Christendom’. Christianity should not be established as the privileged ethos of the whole EU: to do so would violate the PGC by imposing a value-preference held by only some EU citizens on all of them. Such value-partiality and authoritarianism are ruled out by both the PGC itself and the ethic of impartial perfectionism it motivates. Such a prohibition implies no judgement (favourable or unfavourable) on Christianity or its worth in the larger social and spiritual worlds, and nor does it deny that religions and faiths have an important place in civil society and perform valuable tasks in it, such as recalling us to the moral duties to others we can best fulfil through political means. Instead, impartial perfectionism recognises that a respectable politics, especially under conditions of cultural and ideational diversity, must be insulated from certain kinds of ethical truth claims. Just as the assertion that the EU must be secular entails no disrespect to Christianity (or indeed any other moral or religious perspective), the idea of secularism is not tantamount to godlessness, amorality, or moral relativism. Secularism does not reject God but denies human infallibility, a denial that those mindful of the virtue of humility might be expected to welcome. There is no necessary one-toone correspondence between atheism and secularism. Political secularism may be, and perhaps for the foregoing reason often is, supported by those who are religiously devout as well as those who are not religious at all. Nor is secularism amoral. Religious followers may be moral and politically secular, but non-religious people also may be moral and politically secular. As we could hardly have failed to notice, attenders of churches, synagogues, mosques, and temples, can be amoral or immoral as well as moral. Religious faiths do not have the monopoly on morality, and, though here I have argued the merits of one non-religious morality in particular – Gewirth’s – there are plenty of others. Finally, secularism is not the same as moral relativism, and need not lead to it. The idea that failing to commit the polity to a particular religious faith leaves its citizens without any powers of moral discrimination or basis for moral evaluation is pure cant, just as it is fallacious to suppose that the only alternative to any specific comprehensive ethos is no ethos at all. It is not true that secularism leaves us with no resources with which we can compare, rank, and accept or reject normative propositions from a variety of conceptions of the good. However, although the EU level itself must be constitutionally secular, and treat all conceptions of the good held by those within its jurisdiction in an impartial and even-handed way, its component parts (such as individual member states or particular parts of EU territory) may continue ways of life historically rooted in particular faiths, if that is what their citizens choose, so long as individuals’ basic goods (well-being, freedom, education, opportunities for productiveness) do not suffer thereby. So an impartially perfectionist EU may not compel Vatican City to become secular – but it must resist Vatican City’s obliging it to become Christian.

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Notes 1 I discuss freedom and power in relation to each other and to the EU, in the light of its draft Constitutional Treaty, in my ‘Conceptions of Freedom and the European Constitution’, in Dobson and Follesdal (eds), Political Theory and the European Constitution. 2 Brian Barry, Culture and Equality: an Egalitarian Critique of Multculturalism (Cambridge: Polity Press, 2001). 3 Mookherjee, ‘Affective Citizenship’. 4 Lord Acton, ‘Nationality’, in Gopal Balakrishnan (ed.), Mapping the Nation (London and New York: Verso, 1996), pp. 30–1. 5 Proudhon, The Principle of Federation. 6 John Maynor, Republicanism in the Modern World (Cambridge: Polity Press, 2003). 7 James Madison, The Federalist Papers (Harmondsworth: Penguin, 1987), p. 321. 8 For a now classic statement of this position, see Rawls, A Theory of Justice. Recent scholarship queries whether liberal neutrality can in fact be neutral in the way it asserts, or whether instead it conceals substantive commitments. For the purposes of our enquiry, the idea remains useful: if neutrality was shown to presume on a liberal ethic, that might alter the nature of the ‘neutrality’ claimed, but would not dismantle the contrast between liberal neutrality and perfectionism. 9 George Sher, Beyond Neutrality: Perfectionism and Politics (Cambridge: Cambridge University Press, 1997). 10 Brian Barry, Justice as Impartiality: A Treatise on Social Justice, Vol II (Oxford: Clarendon Press, 1995). 11 Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press 1986). 12 An early incarnation of these ideas on impartial perfectionism and their application to the EU’s Constitution and Turkish membership is to be found in Lynn Dobson, ‘United in Diversity? Turkey, European Union, and political community’, in Nanette Neuwahl and Haluk Kabaalioglu (eds), European Union and Turkey: Reflections on the Prospects for Membership (Istanbul: TUNAECS/TOBB, 2006). In that work I specified three components, but have since revised the list to incorporate explicit support for political agency itself, which thus becomes a fourth criterion. 13 Gewirth, Self-Fulfillment, pp. 97–101. 14 Mookherjee, ‘Affective Citizenship’, p. 35. 15 And it does so in its regulatory as well as its distributive and redistributive modes – so no EU action should escape critical (and indeed democratic) scrutiny. 16 Taken from Part I of the ‘Treaty Establishing a Constitution for Europe’, Conference of the Representatives of the Governments of the Member States’, CIG 87/2/04, Rev 2, Brussels 29 October 2004 (OR.fr). 17 Valéry Giscard D’Estaing (2004) ‘A better European bridge to Turkey’, Financial Times, 24 November, full version at www.ft.com/giscard, last accessed 25 November 2004. 18 Tore Vincents Olsen, ‘Europe: United Under God? Or Not?’, in Dobson and Follesdal (eds), Political Theory and the European Constitution.

Conclusion

Is there a theoretically grounded conception of EU citizenship to be had, and, if so, what would be its implications vis-à-vis the current European Union? In today’s world of complex rule-making interdependence the prospects for democratically authoritative decision-making beyond state contexts depend on the sorts of responses we can come up with to these kinds of questions. Pressing the concept of citizenship very hard will not help us to do so, and neither will reliance on the models and assumptions of yesteryear. This book tried to answer that question by articulating a conception of supranational citizenship as the institutional embodiment of the active and collective agency of reasonable composite selves in a community of rights, shaping their common and separate destinies under conditions of political equality and mutual recognition and respect. Whatever its territorial scope, insofar as that citizenship consists in effective powers and constitutes a political order conducing to the wellbeing and freedom of individuals, it authorises and justifies the framework of political authority. The political framework distributes context-shaping powers, but is in turn shaped by those powers; the social and economic settings in which persons live out their lives, and opportunities for self- and purpose-fulfilment available to them, are in place by virtue of their joint political action or inaction. Political agency is what EU citizens hold in common, but it appeals to no thick sense of Europeanness. Instead it is deducible from propositions no agent can consistently reject: where at the level of the individual these propositions give rise to the rational moral agent, at the level of the plurality of individuals they give rise to the political agent. Persons exercise political agency by using their powers of citizenship. In the large and complex polities of the developed modern world the exercise of these powers under assumptions of political equality will likely be through representative political systems, but those systems must demonstrate in their actual structure and workings that they in fact embody the structural and the procedural conditions needed for the powers of citizenship to craft outcomes.

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The most basic of these conditions is institutional acknowledgement that political authority is conferred directly by, and depends constantly on, the citizenry. Rights presuppose community; community presupposes rights. The ways persons feel about one another are deeply conditioned by the ways they mentally apprehend each other. Where they see each other as equal purposive agents they each respect not only the fact of each other’s autonomy but also the fact of each other’s important commitments and bonds. A fundamental and common commitment by EU selves to each other’s freedom and well-being encourages a diverse, rich, and polysemic fabric of particular social and ethical experiences and attachments, and these are social relations that facilitate the role of citizen. A supranational citizenship, incorporating this kind of supranational identity, need not threaten and may nurture other identities. Supranational Citizenship presents a new theory of citizenship. Citizenship, it argues, should not be understood as a kind of personal identity derived from membership of an already-existing social group,or a membership bestowing privileged access to social goods, but instead as an institutional role permitting moral agency within a complex and differentiated institutional space. Although there is indeed a relationship between personal identities and the role of citizen, it is precisely a relationship between two, separate, categories of human existence in action. Citizenship is not about being, but about doing. It is not about what, or who, we are, or how we describe ourselves to ourselves and to each other. Instead, citizenship defines the space and possibilities for certain kinds of action within a highly structured, impersonal, multitudinous and multisystem world, where each of us engages in hundreds or thousands of interactions with others – mostly unseen and unsuspected others – every day; and where each of us is socialised into networks of rules and roles and codes structuring our behaviour and our expectations, most of which we do not even notice. Two arguments of general significance to international normative theory were offered: first, democratic political authority is not dependent on the form of political organisation, and so in principle a number of different types of political framework, of varying territorial and functional size, reach, and scope, could lay claim to it; and second, in political agency, we have the most basic normative test of such frameworks. Political agency is an independent criterion of assessment, not tied to the evolution of the nation-state. As well as these two general points, other parts of the work may be of interest in respect of regional associations. Here, typically, certain threshold levels of interdependence and similarity are an accomplished fact and thus the possibility of common political institutions can arise, but full assimilation and amalgamation is not desired. Relevant here are the discussions in this work as to mutuality of respect and recognition between persons, and even-handedness between ethical values, and the distinctions drawn between democratically authorised representatives and bodies on the one hand and other kinds of representative status and delegated power on the other. In the case of the EU, the working out of Gewirthian principles implies reform. Here we must recognise that Gewirth’s theory is not fully deductive, and cannot entail every last detail. Indeed, the theory itself mandates freedom of ac-

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tion and recommends context-sensitivity, which must allow for a margin of appreciation in judgement. But by going back to its foundational principles we can show what actions and arrangements are ruled out as impermissible, as well as those that are compelled. Within the very large space of indeterminacy bounded by these limits the theory can help to show where the normative emphases should be, and what kinds of consideration should count in our evaluations of alternatives. Examining whether the conditions for agency have been met in the EU suggests that at present citizens’ control is being largely pre-empted and displaced. Indeed, the EU provides an illustration of some of the obstacles to an effective supranational citizenship, which are institutional rather than sociological, at source. But such obstacles have been brought about by human contrivance, within living memory, and they are susceptible to reform or transformation. In respect of social relations the EU illustrates some of the inspiring potentials held out to us by supranational citizenship, and as moral agents we each owe it to ourselves and to each other to act to realise them. This will involve being open to ‘otherness’ and variety, and willing to give others the benefit of the doubt. Sooner rather than later the EU will have to revisit constitutional questions, and when it does, constitutional affirmation of diversity and autonomy is advocated. Finally, to students of moral or political philosophy this book offers a contribution to Gewirth scholarship by extending his work in three theoretical areas: first, by introducing and developing the idea of political agency out of his more general theory of moral agency. Political agency is intrinsically connected to authoritative political institutions, dynamically and formatively oriented to moulding contexts as well as to participating in particular decisions. Once the multiperson and interdependent nature of our existential condition is acknowledged, the powers of agency, expressed through the role of citizenship, are argued to be a third primary good which must be added to freedom and well-being as foundational principles. Secondly, the notion of composite selves in a community of rights, from which emerges the possibility of a form of social relations sufficient to motivate collective action at a variety and multiplicity of levels and sites of political organisation amongst culturally diverse persons and groups, was developed. Thirdly, by reflecting on Gewirth’s work on personalist and particularist morality in the light of these two innovations considered together, I specified the contents of an ethos of impartial perfectionism and recommended it as desirable for a multinational confederation.

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Index

Abromeit, Heidrun 117–20 Acton, Lord 156–7 ‘additive goods’ (Gewirth) 72, 76 Adonnino Report (1985) 49 affect 137–42 agency 11–12, 71–3, 76–8, 81–3 apolitical 93–4 individual 154–5 moral 86–95, 127–8, 145–8, 162, 171–2 political 88–95, 105, 111–14, 137, 143, 153–5, 162, 170–2 see also rational agency; rights, of agents Amsterdam Treaty (1997) 51–3 anarchy, arguments against 78–9 Anderson, Benedict 141 Aristotle 132 Aron, Raymond 1 assimilation 155 authoritarianism 163, 168 authority constitution of 104, 109, 111 democratic 55–6 as distinct from power 99–100, 111 political 99–100, 109 and representation 104–5 autonomy of individual action 162, 172 see also cultural autonomy Barry, Brian 159 ‘basic goods’ (Gewirth) 72, 81, 129, 164, 168 Beetham, David 120–1 Bellamy, Richard 58–61 ‘beneficiary’ approach to citizenship 22–6 benevolent despotism 10 Bentham, Jeremy 162 blocking mechanisms 120 boundaries of citizenship 23, 105–7, 141, 147–9 Brent Spar campaign 115 Britishness 28, 42–3 BSE crisis 165 Bulgaria 166

Canada 5 Caney, Simon 140 Canovan, Margaret 23, 140–1 capacity fulfilment (Gewirth) 133–4, 160–2, 167 Castiglione, Dario 58–61 categorical imperative 75 Christianity 167–8 citizens’ initiatives 53 citizenship concept and conceptions of 3–8, 12, 19– 26, 44, 170 definition of 20–1 institutional role 43–4 see also boundaries of citizenship; duties of citizenship; European Union citizenship; global citizenship civil rights and civil liberties 45, 80, 156 civil society 25, 53, 105, 115–17, 168 global 37 collective identities 28, 139 comitology 116 communitarianism 23–4, 28–30, 38, 130, 139–40 see also ‘cosmopolitan communitarianism’ community of rights 12, 120–1, 130, 134, 137, 145–50, 170, 172 composite selves 137–8, 145–6, 149, 170, 172 conceptions as distinct from concepts 19–20 Constitution of the European Union see European Union, Constitutional Treaty (2004) ‘constitutional patriotism’ (Habermas) 58, 156 contractualism see iterative contractualism; liberal contractualism Coreper committee 116–17 corporatism 117–18 ‘cosmopolitan communitarianism’ 58 cosmopolitanism 35–8, 147 Council of Europe 27, 50 Croatia 166

192 cultural autonomy 164 cultural diversity 134, 144, 155–7, 161–7 Dahl, Robert A. 140 Dalton, Russell J. 115 decision-making, location of 2, 60, 105, 153, 170 delegation 105 Della Salla, Vincent 59 democracy, alternative conceptions of 19–20 democratic authority and authorisation 12, 100–5, 108–9, 111, 117, 171 democratic deficit 59 democratisation 1–2 ‘demos’ concept 4, 55–8, 61–2, 115, 155 Denmark 2 Deutsch, Karl 139 direct democracy 103–5, 119 direct effect, doctrine of 2 discrimination between citizens and noncitizens 106–7 ‘discursive autonomy’ (Mookherjee) 145 diversity, social and political 154–7, 172 see also cultural diversity Dobson, Andrew 35–8 Durkheim, Émile 40 duties of citizenship 28–9, 61, 73–5 egalitarianism see liberal egalitarianism Eichenberg, Richard C. 115 ‘equalizing laws’ 82 Erskine, Toni 148 ethics and ethical values 130–3, 147, 157–8, 171 distinct from morality 95, 130–2, 143–4, 157–8 ethos 24, 143, 160 European 115, 147 European Commission 51–3, 116–17 European Convention for the Protection of Human Rights and Fundamental Freedoms 52 European Court of Justice 2, 27, 50, 113, 117 European integration 2–5, 116 European Parliament 50–2, 113 European Union Charter of Fundamental Rights 3, 27, 51–2 Constitutional Treaty (2004) 3, 27, 52–3, 111, 115–16, 154, 163–4, 167 Intergovernmental Conference (1996) 113 official motto of 164 values of 164, 166 European Union citizenship 1–8, 11, 27, 31,

INDEX 49–60, 102, 111, 137, 143, 147, 150, 170 political theory 54–60 scepticism about 56–7 Europeanisation of identities 145 see also identity, European Europeanness 57, 137, 170 fatalism 88 federal structures 3, 5 fictions, need for 149 Florence 21 Follesdal, Andreas 60 Fortress Europe 54 France 3, 157 Franklin, Mark 115 freedom of choice 86–8 fundamentalism, religious 167 Gaffney, John 115 generic consistency see principle of generic consistency (PGC) Germany 45, 55 Gewirth, Alan 8–12, 61, 71–86, 92, 95–8, 102, 107, 112–13, 127–34, 137, 144–7, 150, 160–1, 168, 171–2 distinctiveness of philosophy of 82–3 Giscard d’Estaing, Valéry 3 global citizenship 35–6, 39, 46 globalisation 36 good life, the, notions of 132–4, 158–9, 162–3 Greek philosophy 30, 102 Green Parties 115 Habermas, Jürgen 35, 55, 58, 61, 140, 156 Hayek, F.A. 25 Himmelfarb, Gertrude 37 Hobbes, Thomas 97 Hohfeld, Wesley Newcomb 25 holism 10 human rights 27, 44–5, 85, 93, 131–2, 157, 160 ‘ideal speech situation’ 79 ideal theory (as distinct from ‘real-world’ analysis) 7, 116 identity European 48, 56–8 personal sense of 40–2 political 42–3, 147 see also collective identities; national identities imagined communities 128, 141

INDEX

193

immigrant communities 45–6 ‘impartial perfectionism’ 13, 154, 161–8, 172 individualism see liberal individualism Ingram, Attracta 58 institutional roles 43–4 institutions, social and political 77–8, 81–2, 86–92, 98, 143, 155, 161–2, 168, 171 iterative contractualism 119

as distinct from ethics 95, 130–2, 143–4, 157–8 as distinct from politics 38, 85 in relation to agency 83 Moravcsik, Andrew 6–7 Morriss, P. 99 Murdoch, Iris 149 mutuality and mutualism 128–9, 160

Jacobson, David 45 justification moral 9 political 5, 8, 107–9

national identities 5, 24, 29, 42–3, 55–9, 141, 145 nationalism 21–4, 28–9, 38, 130, 139, 141, 147, 150, 157 nationality 23–4 nation-states 21–2, 26–7, 30, 45–6, 55, 98, 109, 162–4 neo-liberalism 21 neo-republicanism 157 Netherlands, the 3, 115 Nice Treaty 51 Nicolaidis, Kalypso 59, 61, 145 ‘no demos’ thesis 55, 61, 114 non-governmental organisations (NGOs) 37, 115–19 nonsubtractive goods 72 Norman, Wayne 4–5 normative concepts and theories 6–9 Nussbaum, Martha C. 35–8, 150

Kant, Immanuel (and Kantianism) 75, 83, 97, 132 Kohler-Koch, Beate 115 Kostakopoulou, Theodora 58–60 Kymlicka, Will 4–5, 140 Lacroix, Justine 58 legitimacy 4, 49, 140 Lehning, Percy 58 liberal contractualism 58–61 liberal democracy 55, 77, 98, 153, 158 liberal egalitarianism 25, 159, 162 liberal individualism 82 liberal neutrality 157–65 liberal theories of citizenship 24–5, 59 liberalism, classical 24–5 see also Acton, Lord; Hayek, F.A.; Mill, John Stuart; neo-liberalism Lichtenberg, Judith 147 Linklater, Andrew 35–8 Locke, John 25, 79–80, 97 Lord, Christopher 120–1 Maastricht Treaty (1992) 1, 49–50, 53 Macedo, Stephen 25 MacIntyre, Alasdair 23–4, 27–8, 39 Madison, James 157 Maitland, F.W. 26 Marshall, T.H. 4, 25–6, 30, 38, 45, 59 Mason, Andrew 140 Meehan, Elizabeth 55 Mill, John Stuart 25, 140 Miller, David 23–30 passim, 140–1 ‘minimal state’ (Gewirth) 79 minority groups 143 ‘Monnet method’ of EU working 4, 117 Mookherjee, Monica 145, 161 moral obligations 27–8 morality 6, 9

objectivism 159 obligations, political 79, 109 see also moral obligations ‘one of us’ conception of citizenship 22–4 order, political 97–9 ‘original position’ (Rawls) 128 ‘overlapping consensus’ (Rawls) 156 participatory democracy 102–4, 113 particularism 145–6 perfectionism 158–66 see also ‘impartial perfectionism’ Pettit, Philip 86 pluralism cultural 134, 144, 162 in the European Union 163 social 153–4 value 160–2 Poland 115 power as distinct from authority 99–100, 111 ‘power to’ and ‘power over’ 99 pre-emption doctrine 3 principle of generic consistency (PGC) 75–9,

194 85, 93–4, 99, 102–9 passim, 118, 120, 129, 132, 134, 143–6, 160, 162, 165–7 Proudhon, P.-J. 147, 156–7 public interest 24 public sphere 24, 37, 55, 113–14, 154 ‘purposive ranking’ thesis 132 purposiveness 146–7, 160 grounding agency 72 rational agency 83, 102, 144–5 Rawls, John 25, 39, 58, 61, 79–80, 128, 132, 141, 156 Raz, Joseph 159 ‘reasonable selves’ (Gewirth) 127–30, 147– 50, 157–8 reciprocity, principle of 129 referenda, use of 118–19 religious differences 167–8 representative systems 103–5 republicanism 24, 28–30, 38–9, 59, 90, 157 rights of agents 72–3, 79, 98, 129 of citizenship 22, 25–7, 44–6, 50–3, 58–61, 171 correlated with duties 73–5 universal 131 see also social rights role and role-conformance 43–4, 62, 141 distinct from status 43–4 Romania 166 Rousseau, Jean-Jacques 103 rule of law 108 Sandel, Michael J. 39 secularism 167–8 self-respect and self-esteem 133–4, 146, 161, 165–7 Shaw, Jo 59–60 Sidgwick, Henry 140 situatedness 147–8 social citizenship 59 ‘social contribution’ thesis 129 social exclusion 46 social relations 23, 40, 76, 128, 137–46, 171– 2 social rights 45 solidarity 129, 140 Soysal, Yasemin Nuhoglu 45

INDEX Spain 115 Spinoza, Baruch 132 ‘state of nature’ (Kant) 97 status citizenship as 38–46 distinct from role 43–4 Stoic philosophy 35, 37 ‘structural autonomy’ (Mookherjee) 161 subjectivism 159 supranational relations 2–3, 111, 117–18, 145–7, 163, 165, 170–2 see also transnationalism Sweden 2 Tamir, Yael 23, 140 Taylor, Charles 140 Tindemans Report (1975) 49, 57 transnationalism 45, 114–16 see also supranational relations trust 60–1, 139–43, 150 Tully, James 140, 142 Turkey and Turkish communities 45, 166–7 unforced choice criterion 112 United Kingdom 2, 115, 143 see also Britishness United Nations (UN) 45 universal morality 37–8, 131–2 universalism 134, 144, 147–8, 160 utilitarianism 10, 76 utopianism 6–7 values 160–2 see also ethics and ethical values; morality; pluralism van der Eijk, Cees 115 veto powers 118–20, 156 Vico, Giambattista 87 Waldron, Jeremy 1 Walzer, Michael 23–4, 27–8, 39–50, 140–1 Weber, Max 40, 117 Weiler, J.H.H. 55, 58, 61 welfare benefits 25–7, 39 Westbrook, David 140 Wiener, Antje 57–60 Williams, Bernard 14 Wittgenstein, Ludwig 42