Varieties of Sovereignty and Citizenship 9780812207484

Citation preview

Varieties of Sovereignty and Citizenship

DEMOCRACY, CITIZENSHIP, AND CONSTITUTIONALISM

Rogers M. Smith and Mary L. Dudziak, Series Editors A list of books in the series is available from the publisher.

Varieties of Sovereignty and Citizenship

Edited by

Sigal R. Ben-Porath and

Rogers M. Smith

U N I V E R S I T Y O F P E N N S Y L VA N I A P R E S S

Philadelphia

Copyright © 2013 University of Pennsylvania Press All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher. Published by University of Pennsylvania Press Philadelphia, Pennsylvania 19104-4112 www.upenn.edu/pennpress Printed in the United States of America on acid-free paper 10 9 8 7 6 5 4 3 2 1 Library of Congress Cataloging-in-Publication Data Varieties of sovereignty and citizenship / edited by Sigal R. Ben-Porath and Rogers M. Smith. — 1st ed. p. cm. — (Democracy, citizenship, and constitutionalism) Includes bibliographical references and index. ISBN 978-0-8122-4456-4 (hardcover : alk. paper) 1. Sovereignty—History—20th century. 2. Sovereignty—History—21st century. 3. Citizenship—History—20th century. 4. Citizenship—History— 21st century. 5. Nation-state—History—20th century. 6. Nation-state— History—21st century. I. Ben-Porath, Sigal R. II. Smith, Rogers M. JC327.V37 2013 320.1'5—dc23 2012023967

Contents

Introduction Sigal R. Ben-Porath and Rogers M. Smith

1

I. WAR, SOVEREIGNTY, AND PLURAL CITIZENSHIPS Chapter 1. Sovereignty Out of Joint Arjun Chowdhury

15

Chapter 2. War, Rights, and Contention: Lasswell v. Tilly Sidney Tarrow

35

Chapter 3. Subcontracting Sovereignty: The Afterlife of Proxy War Anna Tsing

58

Chapter 4. In Conflict: Sovereignty, Identity, Counterinsurgency Nasser Hussain

75

II. IMMIGRATION, SOVEREIGNTY, AND PLURAL CITIZENSHIPS Chapter 5. Citizen Terrorists and the Challenges of Plural Citizenship Peter H. Schuck

97

vi

Contents

Chapter 6. Immigration, Causality, and Complicity Michael Blake

111

Chapter 7. The Missing Link: Rootedness as a Basis for Membership Ayelet Shachar

124

III. ON COSMOPOLITAN ALTERNATIVES Chapter 8. World Government Is Here! Robert E. Goodin

149

Chapter 9. If You Need a Friend, Don’t Call a Cosmopolitan Jeremy Rabkin

166

Chapter 10. The Physico-Material Bases of Cosmopolitanism Pheng Cheah

189

Chapter 11. Citizens of the Earth: Indigenous Cosmopolitanism and the Governance of the Prior Elizabeth A. Povinelli

211

Chapter 12. The Idea of Global Citizenship David Miller

227

Chapter 13. Why Does the State Matter Morally? Political Obligation and Particularity Anna Stilz

244

List of Contributors Notes Index

265 269 319

Varieties of Sovereignty and Citizenship

This page intentionally left blank

Introduction SIGAL R. BENPORATH AND ROGERS M. SMITH

M

any, perhaps most, adults today who were born and educated in advanced industrial societies grew up with a picture of the world that seemed commonsensical and often comforting. For them, the world’s territory was divided up among sovereign states, each with its own unique, generally stable body of citizens who received protection from their state and owed it exclusive allegiance. Those states were expected to recognize and respect each other’s sovereignty in ways conducive to peaceful coexistence. While struggles over borders and sovereignty flared up even under these conditions, wars were mostly seen as aberrations to the generally stable state of affairs. One state, one territory, one citizenry with one allegiance—that was the way the world mostly was and should be. Much post–World War II scholarship in many disciplines endorsed these views. To cite one influential instance: in 1948, Leo Gross, a scholar born in Austria-Hungary who became a prominent international law authority at Tufts University, argued that the 1648 “Peace of Westphalia” had initiated a centuries-long struggle to “establish something resembling world unity on the basis of states exercising untrammeled sovereignty over certain territories and subordinated to no earthly authority.” Gross contended that the Westphalian hope was, as the Spanish legal scholastic Francisco Suárez had argued, for each sovereign state to “constitute a perfect community in itself, consisting of its own members,” while still recognizing itself as a member of the “universal society” of the human race. A world so ordered might through peaceful coexistence promote the flourishing of all humanity—a hope that

2

Sigal R. Ben-Porath and Rogers M. Smith

Gross used to persuade those of his time to invest substantially in the new United Nations. Yet though the world may have come closer to that system of peacefully coexisting, fully sovereign nation-states in the quarter-century following the end of World War II than in most of human history, in retrospect it was clear that the peace was then still only a partial achievement. Wars between states never ceased nor did transnational violence conducted by nonstate actors. Even the passport, the great modern symbol of national membership in and global protection by a sovereign nation-state, came into near-universal use only in the late nineteenth and especially the early twentieth century. And today, although in percentage terms the numbers remain small, increasing numbers of persons, rich and poor, either are entitled to hold more than one national passport or are living in the territories of states that do not provide them with passports. Some hold other forms of authorization to reside in those territories, but some lack any legal documentation at all. And many who hold legal membership in the state in which they reside, like the Hmong and the Iraqis who aided foreign armies and the highly educated South Asians employed by foreign firms, nonetheless act primarily as allegiants of, or at least collaborators with, foreign governments that are using force against their state, or multinational corporations that are pursuing global economic, not local objectives. In the twenty-first century, it seems clear that while the nation-state still is a highly significant political entity, capable of exercising military power, securing its borders, enacting economic policies, and conferring memberships at will, its place and role are changing. Many forces are pushing prevailing forms of political community away from that world of singular allegiance to sovereign, independent nation-states and toward new configurations. These may take the form of a panoramic sprawl of multiple, interlaced, subnational, decentralized, federated, and supranational sovereign or semisovereign political communities; plural citizenships; and an even more varied range of new economic, military, cultural, social, and virtual transnational associations. Some scholars and activists depict those as incipient forms of alternative and transnational, even global citizenship, or cosmopolitanism. In contrast to the idealized picture of a world of stable, independent sovereign states, largely peacefully coexisting, this world can seem one of new possibilities, teeming with promises and dangers. To simplify a bit, modern scholarship can be seen as having gone through two waves of response to these developments. In the 1990s, books and articles began to appear, especially by European scholars, proclaiming that the era of nation-state citizen-

Introduction

3

ship was almost over, succumbing to the rise of new forms of effectively transnational membership. Yasemin Soysal may have put the case most sharply in her 1995 book, The Limits of Citizenship, which opened by declaring that a “new and more universal concept of citizenship has unfolded in the post-war era, one whose organizing and legitimating principles are based on universal personhood rather than national belonging.”  Many scholars of the 1990s, especially David Held and Daniele Archibugi, argued forcefully and enthusiastically that these developments meant that the world had at least the potential to move to desirable forms of “cosmopolitan democracy” in which national memberships would play greatly lessened roles in federated global democratic systems. Others, like legal scholar Peter H. Schuck, a contributor to the present volume, expressed far more concern about the “devaluation” of national citizenships, including American citizenship, but Schuck still agreed initially that trends appeared to be moving in that direction. Soon, however, these perceptions and the anticipation of the demise of national citizenship met with major scholarly challenges, both empirical and normative. The challenges simultaneously reflected and analyzed anxieties over immigrants that have mounted in modern Europe, the United States, and other immigrant-receiving nations. Schuck, among others, proclaimed a “re-evaluation of American citizenship” as domestic political groups reasserted the distinctive rights and responsibilities of that status and resisted the rise of “post-national citizenship” in ways he found partly concerning but partly commendable. With more evident worries, Linda Bosniak argued influentially that although modern liberal democratic states often sought to be “soft,” egalitarian and inclusive toward those they recognized as their members, in many cases they were increasingly seeking to be “hard” and exclusionary toward nonmembers, thus reaffirming their political power. Elizabeth Cohen has concluded that because modern states “require citizenship” (require populations that accept those states’ distinctive authority to at least some minimal extent) and populations require the governing institutions that states provide, we remain as an empirical matter far from the end of state-based national citizenships, even if their empirical realities are more complex and shifting than they once seemed to be. Events like the “Arab Spring” of 2011 seem to confirm ongoing commitments among citizens in different countries to the preservation of the nation-state, even as they try to struggle against repressive state governments. On the normative side, many continue to argue for the desirability of national citizenship, as David Miller and Jeremy Rabkin have in their past

4

Sigal R. Ben-Porath and Rogers M. Smith

writings and continue to do in this volume. Moreover, many scholars of economic and cultural globalization who are critical of nationalism have nonetheless expressed at least equal concern about many of the new forms of transnational or “cosmopolitan” migration and memberships on the grounds that they are proving anything but democratic and egalitarian. Because transnational memberships are often held by those highly placed in multinational corporations that are pursuing their economic interests in many locales, abetted by ser vice industries staffed by cheap migrant or local labor, many forms of modern “plural” and “postnational” citizenship are seen as reinforcing patterns of economic inequality and cultural domination. As Aihwa Ong has put it, “mobile managers, technocrats, and professionals” often seek both to “circumvent and benefit from different national regimes by selecting different sites for investments, work, and family relocation” as part of their “trans-Pacific business commute.” In addition, supranational entities often have not fostered practices of governance in their internal orga nization and in their relationships with various territorial populations that satisfy democratic demands more effectively than the nation-state. In light of these developments, during the 2009–2010 academic year, the Penn Program on Democracy, Citizenship, and Constitutionalism asked a wide range of scholars in different disciplines to reflect on these apparent empirical transformations of the world, away from the absolute sovereignty of independent nation-states and toward the proliferation of varieties of plural citizenship, perhaps the emergence of possible new forms of global allegiance, and to consider the normative implications of these emergent forms of membership and sovereignty. The results of these scholars’ work in many ways both defied and exceeded expectations. They are contained in this volume. The essays collected here display widespread acceptance that we cannot grasp the empirical realities or the important normative issues today by focusing only on sovereign states and their actions, interests, and aspirations. All the chapter authors accept that a great variety of globalizing forces are realities that we need to take into account—but they draw very different conclusions concerning those realities. We have structured their contributions so that readers can assess the character of recent developments and the substance of the many debates in regard to what may well be the three most crucial issues concerning transformations in the sovereignty of modern nation-states: the changing role of military force within this new landscape of sovereignty; efforts to control and channel immigration across state

Introduction

5

boundaries; and the development and assessment of forms of cosmopolitan alternatives to nation-states. If, as the Progressive-era journalist Randolph Bourne provocatively argued, “war is the health of the state” because states often build strength and support in order to fight wars, then questions about the role that wars and warfare play in an era of apparently declining national sovereignty are crucial to assessing the extent and significance of that decline. Issues of immigration are just as fundamental since they implicate foundational conceptions of who belongs to a particular political community and who does not, and since immigration policy debates are now provoking major controversies in many immigrant-receiving and some immigrant-sending states. The concerns for current forms of political affi liation, sovereignty, and allegiance borne of war and migration indicate where we are now in terms of global political structures; but they also prompt consideration of alternatives to the model of a world of sovereign nation-states and the benefits and burdens those alternatives may provide. In Part I, “War, Sovereignty, and Plural Citizenships,” internationalrelations scholar Arjun Chowdhury provides an overview of the current condition of the sovereign-state system that challenges much conventional wisdom. In “Sovereignty Out of Joint,” Chowdhury disputes those who think that sovereign states are losing capacities they once had to foster international order, and he goes on to disagree both with those who conclude that we must get past relying on nation-states and those who think we must instead strengthen them. Chowdhury argues that the European-based system of contending imperial states never provided real international stability, nor have states been able to do so since the end of the imperial age. Much of the order that the modern era has achieved resulted from the dangers of nuclear weapons, Chowdhury claims, while postcolonial states have often been embroiled in civil wars and interstate conflicts that have kept a fully orderly world elusive. Though Chowdhury does not offer a formula for how global politics should be structured in the future, his analysis casts doubt on whether seeking to achieve a world that consists only of “strong” sovereign states is wise. Instead, state-building efforts, particularly when conducted by foreign governments, may only help keep wars endemic. If this argument is true, then what are the consequences? In “War, Rights, and Contention: Lasswell v. Tilly,” sociologist and political scientist Sidney Tarrow explores this question by assessing evidence and arguments for the contrasting claims of Charles Tilly, who maintained that early modern European states had to extend more expansive rights to many of their

6

Sigal R. Ben-Porath and Rogers M. Smith

citizens in order to win support for their military efforts, and Harold Lasswell, who insisted that modern “garrison states” often denied rights to many citizens in an effort to achieve military efficiency and secure power. Using T. H. Marshall’s famed framework of civil, political, and social rights, Tarrow concludes that there is some evidence for each of these rival claims, particularly in the long run. While wars are being waged, Lasswell’s worries about denials especially of civil rights and civil liberties are well justified, while the expansion of social rights during and after wars seems to support Tilly’s approach. In an era when concerns about the twenty-first century’s most notorious nonstate international actors—radical Islamic terrorists—are leading many governments to conceive of themselves as in a state of perpetual war, this conclusion provides less than optimistic commentary on the direction in which relations between citizens and states may be headed, even in liberal democratic states. In “Subcontracting Sovereignty: The Afterlife of Proxy War,” anthropologist Anna Tsing examines a further, less noted dimension of modern warfare. In the past half-century, the United States and other major powers have often engaged in “proxy wars.” They have formed alliances with dissident groups in different regions to help them conduct military operations seeking to overthrow their common enemies. Although America’s proxy warriors have often hoped to gain power themselves, they have often found themselves instead living as refugees in the United States, negotiating multiple citizenship claims. Tsing did field work with Hmong refugees in California who had fought against communists in Southeast Asia, hoping to build Hmong sovereignty. She provides compelling reports of how these dual citizens maintain ways of life bound by memories of wars and commitments to continue to fight, on behalf of both the United States and themselves. That military ser vice includes combat by young Hmong men in Iraq. This service, like other instances of proxy warfare, can be seen as fostering greater inclusiveness in and across modern nation-states, or it can be interpreted as reinforcing global inequality, violence, and exploitation. In the Hmong case, it is clear that increased transnational interdependency, and the embrace by both the United States and the Hmong of their plural citizenships, have not been part of the achievement of a more pacific and stable world order. Instead, plural citizenship and subcontracted sovereignty have facilitated the perpetuation of war. Colonial historian and legal scholar Nasser Hussain’s essay, “In Conflict: Sovereignty, Identity, Counterinsurgency,” finds another military legacy of the imperial state system playing a major role in the modern postcolonial

Introduction

7

world. The heart of imperial counterinsurgency strategy was the identification of some colonial residents as the “people” who were to be protected and aided against “insurgents,” even though the populations in question were profoundly interwoven. To “clear-hold-build,” as General David Petraeus’s renowned counterinsurgency manual urges, communities and groups must be labeled, often separated, and controlled. Those practices can be disturbingly brutal in the course of counterinsurgency military operations; but Hussain’s larger point is that they also may become routinized aspects of the forms of governance provided by the regimes that emerge after military clashes diminish. How far those governing Iraq will feel they can and should move to “total control of the population” through its compartmentalization into favored “citizens” and repressed “insurgents” is central to Iraq politics today and to other societies shaped by the modern principles and practices of counterinsurgency that carry on the contested legacies of Europe’s imperial age. If the reflections in Part I on war and sovereignty yield few reasons for hope that the decline in the system of independent sovereign states is producing an accompanying decline in militarism, the accounts of the authors included in Part II, “Immigration, Sovereignty, and Plural Citizenships,” paint a more varied landscape. In “Citizen Terrorists and the Challenges of Plural Citizenship,” Peter H. Schuck observes that the heightened receptivity to dual citizenship and to immigrants that form part of the liberalism of modern American citizenship policies can leave the nation vulnerable to the terrorist assaults of citizens whose real allegiances are to virulently antiAmerican causes. Schuck notes that one obvious response, and for many Americans an emotionally satisfying response, would be the denaturalization of foreign-born citizen terrorists, perhaps even of native-born ones. Yet Schuck recognizes that such a power might be wielded in illiberal ways, and he doubts that it would prove an effective deterrent since terrorists place only instrumental value on their American citizenship. He concludes then that the trend toward acceptance of plural citizenship probably will and should continue despite the accompanying risk for citizen terrorists, at least under current circumstances. In “Immigration, Causality, and Complicity,” philosopher Michael Blake considers two more general arguments concerning the obligations of modern states to would-be immigrants. As Anna Tsing’s discussion of the Hmong illustrates, some might think a state is responsible for admitting at least some individuals affected by its destructive foreign wars. And when a state is complicit in encouraging and sustaining illegal immigration, many

8

Sigal R. Ben-Porath and Rogers M. Smith

may think it obliged to accord those immigrants legal status. In regard to the first argument, Blake contends that it matters greatly whether the destructive war was also an unjust war. If it was not, then in his view no special obligations arise to accept those affected as fellow residents or citizens. Blake also sees some force in the argument that obligations can arise from complicity, but not quite in the way many others do. He suggests that persuasive arguments for excluding immigrants often rest on the need to preserve a coherent, meaningful culture that they might make impossible to sustain. But if the existing culture in fact depends on the labor of undocumented immigrants, it cannot coherently deny them residence; so it should legalize their presence. On both counts, Blake is concerned to ensure that the military and economic interconnections of modern states with outsiders are not turned too quickly into arguments for open borders that might endanger the survival of those states, at least in the forms valued by their members. Like Schuck, however, he nonetheless agrees that under currently prevalent circumstances, arguments for inclusiveness have great force. Legal theorist Ayelet Shachar offers more unequivocal reasons for inclusion of undocumented immigrants. In “The Missing Link: Rootedness as a  Basis for Membership,” she elaborates on the implications of her earlier arguments for giving full legal recognition to a principle she terms jus nexi. Drawing on analogous conceptions of property, Shachar contends that claims to formal civic membership strengthen as persons become more deeply “rooted” in the social, economic, and political life of a particular community. For children of undocumented aliens, whether born before or after their arrival in a new country, this “rootedness” is likely soon to become quite pervasive as they grow up, form social networks, and are schooled and eventually employed almost entirely within that society. Shachar’s principle does not demand citizenship at birth upon a nation’s soil although political communities might decide to adopt that policy for different reasons. But it  does argue for extending citizenship to millions of long-term resident, undocumented immigrants—in the United States and other immigrantreceiving nations—who have in effect already become members of the economies and societies of those nations. Shachar’s arguments therefore serve as a bridge to the concerns about the character and desirability of more expansive forms of political association that occupy the authors in Part III, “On Cosmopolitan Alternatives.” In its opening essay, “World Government Is Here!” philosopher Robert E. Goodin boldly proclaims that institutions of global governance have been developing over time, at what looks like an accelerating pace. Examples of

Introduction

9

these institutions include U.N. peacekeeping forces; the World Intellectual Property Organization, which administers international patent agreements; and a variety of courts claiming international jurisdiction. Drawing primarily on U.S. history, Goodin notes that large-scale governing institutions often gradually acquire greater authority, and though he does not seek in his essay to advocate for a single “world government,” he does contend that we are witnessing evolution in that direction without, so far, the dire consequences that opponents of more cosmopolitan arrangements fear. Political scientist and legal scholar Jeremy Rabkin disagrees sharply. In “If You Need a Friend, Don’t Call a Cosmopolitan,” Rabkin criticizes efforts to create international laws and institutions devoted to cosmopolitan principles of equality and universalism for reasons that echo in some ways those of left-wing critics of cosmopolitanism. Rabkin is concerned that in many articulations, cosmopolitan principles are far too leveling, treating all kinds of political communities and combatants uniformly, when instead great distinctions should be made. He particularly rejects what he sees as cosmopolitan demands that governments accord full and equal rights to states, groups, and individuals engaged in massive lawless violence. Such misplaced respect, he warns, may enable those who disdain all notions of human rights to prevail in combat over their international law-abiding opponents. Rabkin maintains that it is not only morally appropriate but morally imperative for governments and citizens to act to uphold the honor of their own nations by refraining from committing injustices and by refusing to suffer or accept them. Human experience shows, he insists, that a world of sovereign and honorable nation-states is more likely to be a peaceful and just world than one that seeks to realize any of the cosmopolitan alternatives envisioned so far. In “The Physico-Material Bases of Cosmopolitanism,” literary scholar Pheng Cheah raises concerns about both the philosophy and practice of cosmopolitanism. Cheah, too, perceives in the philosophic sources of cosmopolitan politics from Kant through Marx to today a stress on universal human ends. This emphasis justifies global efforts to remake the world to actualize humanity’s potential for free, peaceful, and prosperous selfdevelopment. But like Foucault, Cheah sees these cosmopolitan goals as in reality justifying forms of global governmentality that manage populations far more than they empower them and that do so primarily for enhanced global economic productivity. He urges a “methodological cosmopolitanism” that seeks to track the transnational processes, structures, and practices that reduce people around the world into economically “useful” entities

10

Sigal R. Ben-Porath and Rogers M. Smith

as a precondition to any effort to consider what arrangements might help them become more fully human. Anthropologist Elizabeth A. Povinelli highlights a still more unconventional critical perspective on cosmopolitan alternatives in her essay, “Citizens of the Earth: Indigenous Cosmopolitanism and the Governance of the Prior.” Like some of the other authors, Povinelli probes the Western philosophic roots of cosmopolitan ideals, and she notes that they have long issued in a precept holding that efforts to develop globe-spanning systems of governance must recognize a duty to defer to communities who have prior claims to par ticular portions of the earth’s surface. But Povinelli calls attention to dangers that lurk in granting this priority to “the prior.” The long course of human history involves pervasive contestation at different times in almost every locale; so it is hard for any group to establish firmly that it is truly “prior.” It is also likely that along the way, some claiming to speak for a particular group may have acted in ways that can be interpreted as forfeiting many of their claims to territorial governance. And she argues that in any case, contributors to the growing body of indigenous critical theory conceive of the claims of today’s indigenous peoples in ways that vary sharply from the worldviews of most modern cosmopolitans. Indigenous claims are best seen as concerns to maintain ways of life that intertwine human and nonhuman, animate and inanimate, organic and nonorganic entities within distinctive but shared modes of being in the world. These perspectives are in some respects more inclusive than the largely humanity-centered ones espoused by cosmopolitan theorists, for they incorporate concerns for animals, plants, and the earth itself. At the same time, the viewpoints articulated by critical indigenous theory argue strongly against activities that threaten to erase indigenous ways of life in quests to pursue what they see as often repressive, cosmopolitan visions. The final two chapters continue to raise doubts about the desirability of pursuing global citizenship or cosmopolitan political institutions. Each does so from a perspective that is respectful of many cosmopolitan ethical aspirations, but each nonetheless favors efforts to maintain and extend the structure of the modern world as an array of distinct modern, liberal democratic states. Political theorist David Miller has long argued in favor of liberal forms of nationality. In “The Idea of Global Citizenship,” he adds an insistence that political citizenship involves engagement with others to settle disagreements on terms of reciprocity, with all citizens accountable to all their fellow citizens for the arguments and actions they contribute to collective resolution of their disputes and to the pursuit of both their shared

Introduction

11

and their distinct interests. Miller argues that political relationships of this valuable type are simply not feasible on a global scale. He views it as both possible and desirable to have ethical concern for all humanity and to act to avoid global harms as much as possible. But he does not think it wise to term such conduct forms “global citizenship,” for they do not involve the concrete engagements with fellow citizens on terms of reciprocity and accountability that local political citizenship can provide most vividly and that national citizenship can offer, through suitable democratic institutions, for members of a particular national community. According to Miller, we can and should seek to be “globally concerned citizens,” but we should remain citizens of particular sovereign nation-states nonetheless. In “Why Does the State Matter Morally? Political Obligation and Particularity,” political theorist Anna Stilz argues for a somewhat similar conclusion but on grounds that are more clearly and firmly cosmopolitan. Stilz believes that justice requires us to recognize the natural duties as well as natural rights of all human beings. She contends that in practice, rights and duties cannot be realized without the intermediation of state institutions that protect some and coerce others in appropriate ways. The indeterminacy of human reasoning, however, means that people disagree on what sorts of protection and coercion and what types of institutions are appropriate for these goals. As a result, it is far more likely that effective institutions will be constructed within particular states than on a global scale. Over time, moreover, members of a particular state develop a history of shared endeavors that legitimately fosters special attachments to their fellow citizens and their state—legitimately, that is, so long as the state is on the whole playing its proper role and acting justly when it defines and enforces duties and rights. For Stilz then, more explicitly than for any of our other authors, cosmopolitan, universal conceptions of justice are foundational. Yet like all the writers in this final part, except for Robert Goodin, she concludes that many types of cosmopolitan political arrangements are probably better feared than loved. If the authors in our first two parts found it difficult to embrace many of the forms of militarism and immigrant exclusion that are features of the current world of still-powerful, though often embattled and far from fully sovereign nation-states, the authors in Part III, writing from perspectives right, left, and center, leave us with many doubts about the cosmopolitan options that appear on offer. The results of their reflections do not present us with consensus on how we can best proceed in confronting the challenges and alternatives they delineate. Yet there are common threads: the essays in

12

Sigal R. Ben-Porath and Rogers M. Smith

each section portray nation-states as increasingly accepting forms of plural citizenship but in ways that do not clearly lead in more cosmopolitan directions, at least not clearly desirable ones. Some powerful states are embracing plural citizenships as means of exercising force in further ways rather than limiting militarism. National acceptance of immigrants and plural citizenships are generally means to protect and advance state interests rather than policies that seek to transcend those interests. And despite the lack of normative consensus, there appears to be wider interest in finding ways to adapt national sovereignty than there is support for any clear alternative to a Westphalian world. Some readers may, however, reach different conclusions. We trust that in any case, all who read these essays will gain a richer understanding of the issues of political sovereignty and citizenship that are emerging today. This enhanced understanding may prove a valuable resource at a time when, for better and for worse, a world that once seemed familiar is giving way to a world that we are in many ways invited to make anew.

Part I War, Sovereignty, and Plural Citizenships

This page intentionally left blank

Chapter 1

Sovereignty Out of Joint ARJUN CHOWDHURY

C

onsensus indicates that we are seeing a crisis of authority as we have understood it in the modern era. The modern territorial nation-state’s writ is challenged by global integration on the one hand and subnational fragmentation on the other. To situate these concerns within a broader historical trajectory, I ask two questions: what is driving the challenging of nation-state sovereignty today, and what is the response to the crisis of authority? I argue that the crisis of authority is neither new nor anomalous, but is structural to the development of the international system. We can begin by examining two competing understandings of the contemporary crisis— both of which are articulated by contributors to this volume—that identify a perceived decline of the nation-state’s ability to control its territory and provide public goods, most spectacularly in the occasional instances of “state failure.” Underpinning both understandings is a sense that there is a mismatch between the demand for order and its supply because the state, long the supplier of order, is now incapable of fulfi lling that function. Yet we might dispute this picture. Fundamentally, it assumes that order has historically been the outcome of a system of “strong” sovereign states. Now that those units are in decline or overtaken by processes of globalization, the prospects for order diminish. While seemingly self-evident, these understandings are flawed. Instead, I pose two arguments. First, the modern state has always been riven by crises: the demand for order and the supply of order have always been mismatched. Second, the process of state formation that has long been the response to crisis has always thrown the system, first the imperial and then the interstate system, into further disorder.

16

War, Sovereignty, and Plural Citizenships

That is, the response to the mismatch of demand and supply of order perpetuates that very mismatch. If the relationship between the state and the system of which it is part has been a mutually destabilizing one, why do extant accounts suggest that the crisis of the state is “new’? The reason is what we might call the “post festum problem.” Marx suggested that much social analysis “begins post festum, with the results of the process of development ready to hand before” the analyst. Consequently, the objects of inquiry “have already acquired the stability of natural self-understood forms of social life,” and the analyst is likely to ignore the process through which the object developed. In the case of the modern state, that process is one of war and almost incessant crisis. But because the ideal-typical European state has successfully emerged, the crises through which it emerged are often forgotten. Yet, these crises, as I will discuss at length below, were not periodic misalignments in the balance of power, but were understood and experienced as threats to an entire way of life. However, dire as the crisis seemed, observers stressed that there were potential solutions or ways out. For example, Edmund Husserl suggested that the “crisis of European civilization” after World War I had two “escapes”: “the downfall of Europe in its estrangement from its own rational sense of life, its fall into hostility towards the spirit and into barbarity; or the rebirth of Europe from the spirit of philosophy through a heroism of reason that overcomes naturalism once and for all.” These threats of “downfall” and “barbarity” were not hyperbole: as Charles Tilly has pointed out, even in Europe, most states did not emerge; they failed. At the same time, stringent efforts were made to avoid such outcomes. The idea that the state is currently in crisis is a symptom of “the post festum problem” that, as I see it, creates two analytical problems. First, analysts become likely to overpredict the stability and likelihood of success of a process because they begin with those states that have actually emerged out of a process of war making, like Britain, and ignore those that disappeared through this process, like the German states or Italian city-states before the Risorgimento. That is to say, if we look at the process as it unfolds, we see a greater level of uncertainty and higher probability of failure than if we began with already constituted states as objects of analysis and sought to explain their emergence. Second, looking at the process as it unfolds provides a view into how crises are negotiated and whether they are negotiated successfully. I will focus on this second point in my essay. I will argue that challenges to order from the French Revolution onward have been responded to by calling for the expansion in the power and role of the state. However, this

Sovereignty Out of Joint

17

expansion has not necessarily resolved the crisis: in some cases, it preserved the crisis and, in others, exacerbated it. Therefore, we should be wary of current arguments that the expansion or building of nation-states in much of the world will resolve problems of order. Historically, the development of the state has compromised order as often as it has provided it. To make this argument, the chapter is structured into four further sections. I first discuss two extant narratives of the current crisis of the nationstate to illuminate what they have in common: namely, that the state is the historical guarantor of order, and its crisis is new and anomalous. Second, contra these narratives, I suggest that the process of state formation has involved at two historical moments a destabilizing relationship between the state and the system of which it is part. Objectively speaking, the modern state developed in Europe through an escalating process of war making and empire. This process compromised first the stability of the imperial system and then the development of states within the interstate system. Third, I examine the subjective aspect of this process: the nineteenth-century European state did not develop in a mechanical fashion, devoid of human agency. Rather, in response to crises of war, revolution, and empire, observers of the time called for the expansion of state power, which did not necessarily resolve the crises; it either preserved them or exacerbated them. I conclude by placing the current crisis of the state in historical context. Essentially, there is nothing necessarily new about the current crisis of the state; in some ways, it is an intensification of historical trends. More important, the ideas that the state is the guarantor of order and that problems of order can be solved by building states are simply a repetition of long-term responses to disorder. And, as in earlier moments, the effort to resolve problems of order by building states creates its own problems.

Two Narratives Two compelling narratives explicate the contemporary notion that the nation-state is in crisis, and contributors to this volume fall on one side or the other of this debate. First, scholars have argued that the contemporary demand for order exceeds the ability of states to supply it, and the demand for order exceeds national-territorial boundaries to encompass areas of common concern like climate change. In response, a more or less aggregated apparatus of global governance has arisen, taking one of four forms. Global governance can be nested in multilateral organizations that form a shadow

18

War, Sovereignty, and Plural Citizenships

global government or the foundations of an embryonic world state, or a parallel set of networks of civil-society organizations can take on the challenge of providing public goods and representing groups that are normally unrepresented. Alternatively, governance can pass to a more disaggregated and noncentralized system of “capitalist sovereignty.” Finally, rather than a multilateral or capitalist content to governance, it is the most powerful state, the United States, that has taken on an expanded, imperial sovereignty. The second narrative does not dispute that the demand for order exceeds national-territorial boundaries, but it does contest the empirical rise and the normative desirability of alternative forms of organization. Great powers are unlikely to cede authority to supranational entities, whether multilateral or capitalist in nature, and great power competition will check presumptive empires and limit American primacy. The resolution of transnational problems will be restricted, as it has been in the past, by the formidable collectiveaction barriers to cooperation between states. State interests may be both preventing resolution of these problems and exacerbating them. Two issues exemplify the problems faced by supranational authority: managing the commons and instituting transnational regulation. As evidenced by tuna fisheries in the Mediterranean, parts of the global commons are facing significant depletion. Ideally, the users of the commons would develop norms to manage their use. However, the separation of fishing fleets by national boundaries inhibits such cooperation and norm development. Rather, users of the commons are divided into competition for shared resources by state borders rather than cooperating to preserve these resources. On a normative level, one might question, as David Miller does, whether the broader global community is an adequately political concept for expanded notions of citizenship. Given these empirical and normative difficulties, it may make more sense to see states as the primary and most effective guarantors of universal values, and focus activism and resources to strengthen them. Both narratives coincide on the point that there is a mismatch between the demand for order and the supply of it, but they disagree as to whether a new form of authority has, will, or should emerge to resolve it. My concern is not to adjudge the accuracy of either position but to identify two points of overlap. The first overlap is that the mismatch between the demand and supply for order has emerged recently, specifically after the end of the Cold War and the rise of“globalization.” To be sure, authors differ on the reasons behind this change. For those suggesting that America has become an empire to provide order, the proximate cause is the demise of the USSR. Others attribute the change to globalization by either empowering capitalist entities

Sovereignty Out of Joint

19

over states or privileging network forms through which nonstate actors can effectively challenge state power. But there is general agreement that, as Arjun Appadurai puts it, “the nation-state system is undergoing a profound and transformative crisis.” The second overlap is that the mismatch is due to a decrease and in some cases a lack in the ability of sovereign states to supply order. Again, there are several separate logics for this decrease. At a formal level, a variety of changes attributed to globalization, such as the rise of network forms that are more nimble than hierarchical bureaucracies, are seen to challenge the writ of states. Empirically speaking, many states are seen to be unable to maintain order. The historically central actor in maintaining order, the sovereign state, is now seen to be incapable of doing so. The upshot is that the challenges to order are anomalous, historically speaking.

The Fallacy of Order: The Objective Process of State Formation I will contest the second assumption at work in these two narratives, the assumption that states have always been the guarantors of international order. The association between states and order has a theoretical and historical lineage such that it appears to be self-evident. I suggest, however, that modern state formation has always compromised international order. More precisely, the development (or maldevelopment) of the modern state has occurred through a destabilizing relationship with the international system, first the imperial system and then the system of states. The mismatch between the demand and supply of order is neither recent nor anomalous. It is structural to the development of the interstate system as well as of the states within it. My analysis gives pause as well to the contemporary notion, instantiated in policies of state building, that building state capacity will necessarily improve the prospects for order. Before I discuss in more detail the relationship between state and system, it is important to clarify my (sometimes synonymous) use of the terms crisis and destabilizing. The term crisis does not refer to a departure from the equilibrium path, which, while certainly destabilizing, is very much part and parcel of how complex systems operate. Therefore, a crisis does not refer, for example, to periodic misalignments in the balance of power or misperceptions of relative capabilities that lead to armed conflict. Rather, a crisis refers to events that are seen to threaten a way of life and are articulated as such, much as Husserl suggested that the “crisis of Europe” could lead

20

War, Sovereignty, and Plural Citizenships

to the “downfall of Europe” as a rational civilization. These events are described by ominous terms like demise, collapse, or fall. A crisis is a historical event in two senses: it is something that is happening, and something that is understood, defined, and experienced to be happening in a certain way, namely, as threatening a way of life. In contrast to earlier understandings that saw decline as more or less inevitable, crisis in modernity is both existentially threatening and soluble by human action. Those who subjectively understand and define a crisis qua crisis are not resigned to an inevitable outcome: rather, they see themselves as capable of staving off the crisis. In the next section, I will discuss the subjective element of the crises and their “solutions” to suggest that the international system has developed through a set of crises that have not been entirely solved and where the solutions have arguably exacerbated the problem. In this section, I provide a retrospective, “objective” view of the process. The period of European state formation was pervaded by such crises, crises of war, revolution, and empire. During and after the French Revolution, the modern state developed through an escalating process of total interstate war and colonial expansion. External threats compelled rulers to forge a compact with their subjects, leading to the extension of rights, the provision of public goods, and, in some cases, political representation. Marginal populations asserted claims to citizenship through participating in war and empire: Scots, for example, became part of a new, composite identity of “Britons.” Centralization accompanied incorporation as rulers interacted directly with their subjects, phasing out such intermediaries as feudal lords. The outcome was national states, characterized by direct rule, centralized bureaucracies, and mass standing armies. If we restrict our geographical focus to the European state system, we might think that the state system develops in lockstep with the modern European state. But if we broaden our focus to take into account that the European system was an imperial system, we find a different relationship between state and system. While building strong states in Europe, the process of war/empire and state making compromised fi rst the prospects of order in the imperial system and then the imperial system itself. Most obviously, imperial domination fueled rivalries. While the patchwork of agreements between sovereigns, notably the Berlin Conference, ensured the long peace after the Napoleonic conflict, great power competition was likely to escalate at some point as domestic publics became more involved in politics. The proximate cause of this popular feeling was the decline of one empire, the AustroHungarian, in opposition to another, the Russian, which would experience

Sovereignty Out of Joint

21

what we would now call a “state failure event” in less than three years. The rise of newly powerful states like Germany and the decline of empires like the Ottoman Empire fueled rivalries that would destabilize the imperial system twice in the first half of the twentieth century. More important, however, was the decline of the imperial system from within the colonies. Anticolonial movements challenged imperial authority from a position of significant weakness, yet ultimately, not only did empires end, but, by the 1960 Declaration on the Rights of Colonized People, empire itself was seen as illegitimate. In a way, this development is potentially the most revolutionary in world politics because the most prevalent historical form of order was, in a short time, rendered illegitimate. Essentially, the imperial system was a fundamentally unstable one. The outcome of the apogee of state formation in Europe and America was ironically the destabilization and ultimate supersession of the imperial system and its replacement by the interstate system. Observers of the time did not assume, as we do now, that the interstate system has always been the organizational form of politics at a global level. Rather, they echoed Raymond Aron’s statement that “since 1945, the international system has included the five continents, the whole of humanity.” The imperial system was fundamentally unstable because of the everpresent risk of total war and the pressures of anticolonial sentiment: the development of the modern state compromised the stability of the system. The interstate system, which came into being after 1945, had a different locus of instability. States developed through a positive relationship with war and empire. Extrapolating from the trend in Europe, we might have expected postcolonial states to emulate the experience of their former colonial overseers and repeat the process, as Haiti had attempted in the early nineteenth century. This did not happen. Rather, the increase in the scale of conflict did not infinitely extend in time. It ran up against two limits: one that affected the likelihood of confl ict between great powers and the other that affected the likelihood of conflict between postcolonial states. First, the advent of nuclear weapons raised the costs of total war to exorbitant levels. Not only did this reduce the risk for total war between great powers, it dissuaded great powers from adventurism at lower levels. Additionally, great powers became involved in mediating conflicts in the periphery and preventing them from escalating. In the early nuclear era, observers raised concerns as to the feasibility of war as a tool of statecraft and linked the advent of nuclear weapons to a crisis of the state, the logic being that the nuclear weapons made war making, the historical function of the state, more

22

War, Sovereignty, and Plural Citizenships

or less defunct. Unable to engage on its constitutive activity and unable to protect its subjects from total destruction, the state had effectively reached its demise. These analyses were mirrored by ultimately unsuccessful efforts to create institutional arrangements to mitigate the risk for nuclear war. These included state-centered initiatives like the Baruch Plan of 1946, formulated by Robert Oppenheimer, where atomic materiel was to be controlled by the United Nations and nonstatist groups like the World Federalist Society. The unease about nuclear weapons cast a shadow over domestic politics, where the promise of nuclear power as articulated by Walt Disney in the film Our Friend the Atom was undercut by exhortations about the nuclear threat, manifested, for example, in Civil Defense. In this environment, there was much criticism that foreign policy was being conducted according to the principles of the balance of power, a seemingly defunct way of regulating the European state system. The most cogent of these criticisms was voiced by Hans Morgenthau, who argued that nuclear weapons rendered the state impotent at the very moment that it possessed maximum destructive capability. Dwight Eisenhower, for one, echoed this sentiment, regretting that nuclear weapons even existed because “he was certain with its great resources the United States would surely be able to whip the Soviet Union.” The challenge, Morgenthau suggested, was not to adapt nuclear weapons to the state by treating them as usable in conflict. The challenge was to adapt the state to the altered nature of war making inaugurated by nuclear weapons. Morgenthau feared that the abstract certainties of deterrence were giving an illusory stability to the situation and obscuring the fundamental change—that nuclear weapons had weakened, not strengthened the state—and the resulting need to think outside statist categories. In one sense, these criticisms were off the mark: the territorial state remained the presumptively central unit of international order. But in another sense, the state that remained was transformed: it was no longer predicated on waging total war but on preventing total war and maintaining conflict at a limited level. This transformation was not the outcome of a conscious effort; it developed as the unintended consequence of the great powers mobilizing against each other in the cold war. The United States and the USSR were facing an existential paradox, as articulated by Henry Kissinger: “The enormity of modern weapons makes the thought of all-out war repugnant, but the refusal to run any risks would amount to handing the Soviet leaders a blank check.” To avoid writing this “blank check,” the U.S. government had to develop a strategy to fight and win nuclear wars, despite predicating that strategy on the idea that such wars were unwinnable and should be avoided

Sovereignty Out of Joint

23

at all costs. This paradox lasted through the cold war: the great powers built their policies on deterrence, but decision makers were loath to believe entirely in deterrence. Therefore, they built weapons stocks beyond any consideration of military utility, even when they admitted that the nuclear balance, for example, did not really affect the strategic relationship. The most concise way to understand this paradox is to juxtapose two statements, the first coming from possibly the foremost nuclear strategist, Bernard Brodie. In 1959, Brodie wrote: “Lest we conclude from these remarks that we can be content with a modest retaliatory capability—what some have called minimum deterrence—we have to mention at once four qualifying considerations, which we shall amplify later: (a) it may require a large force at hand for even a modest retaliation; (b) deterrence must always be conceived as a relative thing . . . ; (c) if deterrence fails we shall want enough force to fight a total war effectively; and (d) our retaliatory force must also be capable of striking first, and if it does so its attack had better be, as nearly as possible, overwhelming to the enemy’s retaliatory force.” The esoteric concepts contained in this passage have a momentous meaning for the status of the state. While the state seeks to avoid conflict, it must not just maintain a minimum deterrent; but it must be able to fight wars in case deterrence fails and have a retaliatory force that can launch a massive preemptive strike (logical and terminological contradictions notwithstanding). That is to say, even when the state’s role is to prevent rather than fight nuclear war, its role becomes more, not less important, and the amount of destructive capacity at its disposal increases, which again increases the importance of stable states to manage nuclear order. Deterrence is an unstable equilibrium that demands constant policing by an expanded state. The instability and how it demands an expanded role for the state is encapsulated in a laughably contradictory statement made, twentythree years after Brodie’s, by Ronald Reagan’s Secretary of the Air Force Verne Orr: “We have to be stronger than we were before because the Soviets are stronger. Otherwise we will not be able to deter the conflict we all want to avoid. And if deterrence does fail, we must be able to win to survive.” This is a “heads I win, tails you lose” situation. To maintain deterrence and avoid war, the U.S. state needs to be strong, but if deterrence fails and war occurs, the U.S. state needs to be even stronger to fight and win the war no one wants and that is probably unwinnable anyway! War making and state making were disarticulated after 1945, but, as the agent of deterrence and the manager of nuclear order, the state remained the presumptively central unit. Second, we might have expected those at the receiving end of empire to want to return the favor by emulating the European process of state formation.

24

War, Sovereignty, and Plural Citizenships

This emulation did not occur; indeed, anticolonial leaders took pains to emphasize the ways in which they would depart from the European mode of state formation to carve out a distinct politics of their own. In conscious contrast to the war-making tendencies they attributed to European civilization, anticolonial movements stressed their commitment not to engage in conflict or empire. These arguments represented the war-proneness of colonial powers as evidence of their unfitness to rule, making it less likely that they could turn around in the independence era and engage in conflict. There were several intersecting critiques at work: of world war being part of a broader process of brutality in Western civilization that dated back to slavery, of fascism being a natural outgrowth of European ideas of racial superiority, and of the stockpiling of nuclear weapons as a threat to all. Making a virtue of their weakness, postcolonial states rhetorically abjured the goal of interstate conflict. This commitment was more or less borne out by their actual conduct as contrasted to the European instance, for several postcolonial states had both significant military capability and a marked preponderance in the regional balance of power, yet the relative regional imbalances of power did not lead to large levels of interstate war, which has diminished since 1945. Anticolonial ideas diminished the risk for total interstate conflict but also diminished the likelihood of empire as a mode of rule. Before decolonization, empire was the predominant form of political organization. Right up to the actual moment of independence, the organization of colonies into sovereign nation-states was not a fait accompli: rather, colonial powers envisioned a range of forms of shared sovereignty, such as dependencies. Yet, by the 1960 Declaration on the Granting of Independence to Colonized People, empire came to be condemned as illegitimate. The extent to which empire was seen as illegitimate is reflected in how even those states who behaved in imperial fashion, like the USSR, took pains to deny any appearance as such and were quick to condemn a rival’s behavior as imperialistic. Contrast this to the pro-imperial sentiment even in early twentieth-century Europe, where if it looked and quacked like an empire, it was proudly acknowledged to be one. In Lord Frederick Lugard’s words, “We hold these countries because it is the genius of our race to colonise, to trade and to govern.” The demise of empire was thus not just a matter of the fact of decolonization but a change at the level of ideas of international order. This change can be illustrated by an example. In the nineteenth century, the idea that a nonWestern society could be a sovereign state was unthinkable, even when that society had evicted the colonial occupier and exercised effective authority. Such was the case of Haiti, despite conducting in 1804 the only successful

Sovereignty Out of Joint

25

slave revolution, Haiti did not gain diplomatic recognition by either the United States or the Vatican until the late nineteenth century and was not invited to the first hemispheric summit in 1826 in Panama. Haiti, despite being sovereign in fact, was not recognized as such in law. By contrast, several contemporary states, the most obvious instance being Somalia, are recognized as sovereign in international law and diplomatic procedure, such as by having a U.N. seat, but do not exercise effective authority within their borders. The outcome of this process can be understood as a paradox. On the one hand, the risk of total war diminished, meaning that the international system was relatively more stable than during the preceding two centuries. Nuclear deterrence restricted superpower rivalry to limited or proxy wars, while wars between postcolonial states were almost overwhelmingly smallerscale affairs conducted at far below the level of “absolute war.” On the other hand, the pressures that would compel rulers to build stable state institutions were no longer in operation. Absent these pressures, which during the long nineteenth century fueled the establishment of strong states in Europe and America, states in the postcolonial world have remained relatively weak. Insofar as postcolonial elites have built state apparatuses, these are mostly developmental states, not war-fighting states. Developmental states are unrepresentative at origin because they proceed from the idea that the members of the public are backward and need to be made modern. This repetition of the most fundamental colonial trope—that the natives were unable to represent themselves—re-creates many of the legitimacy problems that the colonial state faced and prevents the establishment of representative institutions that can mediate between the state and the population. The weakness of the postcolonial state creates a different set of problems from the standpoint of international stability: ethnic conflict, terrorism, the risk for nuclear weapons falling into the hands of nonstate actors. The threat, such as it is, to international stability has moved from that posed by strong revisionist states to that posed by weak states unable or unwilling to police their borders effectively. This scenario is voiced most explicitly by the 2002 U.S. National Security Strategy, which read, “America is threatened less by conquering states than it is by failing ones.”  But the broader point I would like to emphasize is that the relationship of the state with the international system, whether the imperial or interstate system, is a destabilizing one. The development of states in Europe threw the imperial system into crisis, precipitating total wars in Europe until the nuclear revolution raised the cost of conflict above thinkable levels and culminating in anti-imperial movements that delegitimized the very notion of empire as the basis for international

26

War, Sovereignty, and Plural Citizenships

orga nization. These changes gave birth to the interstate system but shaped it in ways that made the development of strong states less likely. The consequence was that while the risk of total war and imperial expansion diminished, the units of the interstate system were constituted under conditions that compromised the development of centralized institutions that would monopolize authority. In three ways, the international system after 1945 has not seen the upheavals of the last two hundred years: interstate wars have not been total wars, much less escalated through alliances to threaten the system; states have not disappeared from the system; and formal empire has been uncommon. Yet the (relative) stability of the international system has come at the cost of instability within component units. Equally important, the risks that instability within component units poses to the international system have risen over time. As, for example, states with internal challenges have nevertheless procured nuclear weapons or materiel, the threat of instability within these states is not necessarily localizable.

The State as Solution: The Subjective Process of State Formation If there is one criticism of the narrative of state formation presented above, it is that it can sometimes be read as a mechanical process that does not pay enough attention to the role of agency. This is because of the “post festum problem”: like Tilly, we are trying to explain the outcome of a process that has already occurred, the process through which the modern centralized state displaced such alternatives as city-states and empires. But there are two further aspects of the analysis above, which when reevaluated, both confirm and complicate Tilly’s thesis. First, what of voices of the period: how do those caught up in the momentous process of state formation understand their condition, and how do they respond? Second, in those accounts, what other possibilities are articulated, and are they entirely eliminated? As the modern state developed in its most advanced and stable form in the Europe of the nineteenth century, we might begin with accounts of that period. The period of the development of the European state was one of great upheaval: it was perceived as beset by crises of war, revolution, and empire. Faced with these crises, observers of the time almost invariably called for an expansion in the scope and strength of the state. That is, the state developed as the solution to the crises of the nineteenth century, confirming Tilly’s analysis. But these accounts also reveal something else: the “solution” may not solve the problem; it may actually exacerbate the problem. This

Sovereignty Out of Joint

27

possibility is borne out by the historical record, for many of the efforts to solve crises by expanding state power may have merely precipitated further crises. Yet the dominant response of the time, manifested not just in secondary accounts having the benefit of hindsight but also in primary sources, was to call for the expansion in the power and writ of the state. I will highlight a representative example. Between 1788 and 1795, Edmund Burke prosecuted Warren Hastings, the viceroy of India, in the House of Commons, on charges of abuse of power and taking bribes from Indian princes. This political effort was not just about events in India; it was fundamentally about maintaining English law, for as Burke noted in his Reflections, “The power of the house of commons, direct or indirect, is indeed great; and long may it be able to preserve its greatness . . . and it will do so, as long as it can keep the breakers of law in India from becoming the makers of law for England.” In this prosecution, the rights of the princes, much less the populations, of India were not at stake. The focus was on the political problem empire posed to England: what law should govern British expansion in India? The covenants between English officials and Indian royals seemed to suggest that the latter’s law was supreme, but the actions of Hastings and associates violated the laws of England. In essence, Burke argued, Hastings was acting beyond the writ of any law because the covenants he had signed were not adequate and were outside the realm of English jurisprudence. Hastings argued that he had respected the ancient constitution of Bengal. But this “relativism” was inadequate for Burke, who argued that “these Gentlemen have formed a plan of Geographic morality, by which the duties of men in public and in private situations are not to be governed by their relations to the Great Governor of the Universe, or by their relations to men, but by climates, degrees of longitude and latitude, parallels not of life but of latitudes.” Hastings’s behavior could not be checked except by the extension of English law over his actions in India; to successfully prosecute Hastings was not just to bring an individual to heel but to establish legitimate English law over India or, more precisely, to constitute the legitimate space of English law. As Nicholas Dirks has observed, Burke’s effort was to make “empire . . . no longer the province of unprincipled pirates, but rather an affair of state answerable to the nation.” Burke was unsuccessful—Hastings was acquitted—but the problem remained salient. After the 1857 revolt, where Indian soldiers in the employ of the East India Company rebelled against their overseers, the themes raised by Burke were repeated in the House of Commons and in the press. Faced with widespread recalcitrance from the natives, one might have expected a

28

War, Sovereignty, and Plural Citizenships

questioning of the premise of imperial rule, whether it was desirable in general or whether the natives truly wanted it. To some degree, there were objections to the justice of imperial rule, but the injustice, such as it was, derived not from the fact of foreign rule but from the “divided” or “dual” government of the East India Company. As an editorial in the London Times stated, “We may say that as a nation that India is ours. Its government has long been our affair, and it has been administered in effect by the CROWN and the Parliament of this country. The second government of the India-house [East India Company] is an effete tradition; its own action, as far as it was left to itself, an avoidance of responsibility.” This theme was echoed by a member of Parliament arguing for the need to bring India under the direct control of the Crown: “For the mass of the governed the government of India by England is a blessing; but though it be a blessing, still I believe our power has been acquired by unjust means,” these means being the rule of the East India Company. A resolution prefiguring the 1858 India Bill read, “It is expedient that there be established for India a responsible form of Government in the name of the Crown.” This was indeed what happened: in 1858, the East India Company was dissolved, and India came under the “undivided” rule of the Crown. Comparing Burke’s failed effort and the eventual adoption of essentially his preferred policies six decades later indicates a recurring theme. Specifically, if Burke’s prosecution of Hastings was about Britain more than it was about India, then Viscount Palmerston’s explanation for direct rule echoed exactly the theme of constituting the proper space of British rule: “Again, as regards our interests in India, I may state at once that the Bill which I am about to propose to the House is confined entirely and solely to a change in the administrative organization at home, and that we do not intend to make any alteration in the existing arrangements in India.” More generally, as much as the European state developed through an objective process of war and empire, the expansion of the state was also the outcome of a subjective process of advocacy in response to crises. The development of the state was neither inevitable nor mechanical; it emerged as a solution demanded by a range of actors faced by the multifarious crises of the period. Perhaps this was best encapsulated by Matthew Arnold: “We want an authority, and we find nothing but jealous classes, checks, and a deadlock; culture suggests the idea of the State. . . . We find no basis for a firm Statepower in our ordinary selves; culture suggests one to us in our best self.” Yet we might note with hindsight a paradox that went generally unnoticed in this period: the crises that compel Arnold to call for a state are crises that stem from the development of the state itself. For example, as the scale of

Sovereignty Out of Joint

29

conflict increased after the Napoleonic wars, Carl von Clausewitz called for increased central control of war. But it is precisely governmental control that made the use of force more focused and more deadly. As states grew stronger to better wage war, the scale of that conflict increased as well. Rather than a linear relationship between war and state making, there is more accurately a spiral model. This casts doubt on the extent to which it can be controlled or reproduced, and points toward a limit to the scale of conflict, after which the relationship between war and state making changes fundamentally. My point is that the state emerged as the solution to its own crises, but the solution often exacerbated the crises. This contradiction was perhaps most evident to those in the colonies, where the rule of the imperial state was most precarious. For example, Eric Williams noted that while the Caribbean slave trade doubtless enriched the metropole, it also precipitated slave rebellions because “the Negroes had been stimulated to freedom by the development of the very wealth which their labor had created.” Bringing India under the direct control of the Crown was similarly unsuccessful since it did not ultimately satisfy the native’s need for a “responsible form of government”; arguably, it drove anticolonial sentiment. Possibly more damaging for the long-term prospects of the postcolonial state, anticolonial nationalism contained a quite significant element of antistatism. The bluntest statement may have been Gandhi’s when he wrote that “the state represents violence in a concentrated and organic form,” but even more self-consciously modernist anticolonial movements functioned in an ambivalent relationship with the colonial state. This created problems down the line, for state action after decolonization could be and was likened to a repetition of colonial policies. Rebel movements in India’s northeastern states, for example, describe Indian state action as imperialism from Delhi and the northeastern states themselves as an “internal colony.” One might say that all states are constructed through a process of “internal colonization,” to use Eugen Weber’s term; so why should it be different in postcolonial contexts? The answer is simple: given that the rationale of the independence movement was to end external colonization, turning around and imposing internal colonization becomes diametrically harder to legitimize. The state as solution in the European instance ironically makes the postcolonial state even more of an unfinished project, unable to either embrace the colonial legacy in a straightforward process of emulation or to break entirely from the European trajectory. In nineteenth-century Europe, there was a positive relationship between the subjective feeling of crisis and its objective manifestation in the rising

30

War, Sovereignty, and Plural Citizenships

scale of conflict, for example, and the expansion and centralization of the modern state. The consequences of this linkage have not been adequately understood, even though both phenomena have been documented extensively. Historians have noted that the expansion of the state in nineteenth-century Europe was unprecedented. Other historians have noted the sense of upheaval and “vertigo” characteristic of the time. To draw the linkage is to illuminate the importance of agency in the development of the European state. While it is undoubtedly true that state formation is a long-term process that cannot be understood as the outcome of a conscious plan, as Bruce Berman and Jeremy Lonsdale point out, it is not a mechanical movement either. Rather, the state was demanded at multiple levels, without a coherent or even a unified sense of what the consequences would be. We might say that state formation is largely a story of unintended consequences, and one of those consequences is that the desired order did not necessarily fructify.

Conclusion: Sovereignty Out of Joint I have made two related arguments. First, the crisis of the state is not a new phenomenon but is a repetition of the historical relationship between the state and the system of which it is part. Second, this relationship is generally a destabilizing one, for the state developed through throwing the imperial system into crisis; by contrast, the interstate system has remained relatively stable, and consequently many states have become less stable over time. This might give pause to the contemporary notion that problems of order can and should be addressed by building states or by strengthening weak states. In this conclusion, I discuss the analytical and policy implications of my argument. The destabilizing relationship between state and system has not led to “the demise of the territorial state.” Indeed, the opposite seems to have occurred, for policy makers and scholars repeatedly assert the need for strong state institutions modeled on the European ideal-type. This process of dissemination of an institution supposedly in crisis is not unprecedented: the European order that Husserl saw in crisis in 1935 was ironically about to be disseminated to the world as a whole. As I have suggested, the desire to build strong states derives from a misreading of the historical record, specifically an elision of the violent and unstable history of state formation. This misreading manifests itself in paradoxical ways: for example, human-rights advocates now suggest that the state is the best protector of human rights, even though historically the state has been seen as the primary threat to human rights.

Sovereignty Out of Joint

31

On an analytical level, we should modify the view that the state is currently in crisis in contrast to a previous period of stable states underpinning international order. The modern state has always been in one form of crisis or the other. More precisely, it has developed through crisis, and the effort to address the crisis of the state has destabilized the international system. Insofar as there is a contemporary crisis of the state, it should be understood as an extension of, and in some cases an intensification of, these historical trends. For example, several postcolonial states are not facing new challenges to their authority or legitimacy; rather, these states have rarely exercised effective authority or enjoyed legitimacy among their populations after the unifying effect of the anticolonial movements had run its course. Equally, it is not contemporary market forces that reduce the probability of conflict between great powers: the high cost of nuclear war has consistently dissuaded policy makers from running the risk of escalation. That said, subsequent developments have intensified these trends. The dispersion of production across borders has further increased the costs of conflict by making it more costly for a par ticu lar state to be entirely self-reliant in the area of defense production. Advances in communications have enabled nonstate actors of all stripes, from human-rights activists to criminal networks, to form transnational networks that have challenged state power. The crisis of the state may have deepened in recent years, but it did not originate in this period. Does the historically destabilizing relationship between state and system cause us to rethink our received understandings of international politics? I would suggest it does. The consolidation of state power is always a precarious, necessarily incomplete project that is attempted through significant levels of violence. Given the costs of strong states, one should expect a fair number of “weak” states, which is borne out by the fact that over time and at any given time, strong states are the aberration, not the norm. Therefore, the international system should not be understood as an equilibrium that occasionally descends into crisis but as a system that develops through a set of crises, which are not necessarily resolved. Most extant theories of international relations see war as a sort of punctuated equilibrium that leads to a reorganization of the international system, but war itself as a deviation from the normal process of international politics. This seems to downplay the constitutive importance of war and other crises in the building of institutions and order, that is, how wars can change the structure of international politics. This insight is hardly novel: Heraclitus, Machiavelli, and Marx, among others, stressed the generative power of wars and crises. These crises, however, are not always resolved in a stable fashion, which means that the international

32

War, Sovereignty, and Plural Citizenships

system that is the outcome of various crises is not necessarily a stable system. Insofar as the international system is a totality, it is a fundamentally misaligned totality, or, in the language of this essay, “sovereignty out of joint.” On a policy level, if the development of the state has not historically resolved problems of order, contemporary efforts to build states may be hindering rather than improving prospects for order. The building of states is most obviously a suppression of other forms of order, as state authorities clamp down on nonstate actors and organizations. More abstractly, the “stickiness” of state borders and citizenship affi liation creates barriers to movement that did not exist in relatively recent history. Migration at the beginning of the twentieth century was proportionally much greater than migration a century later. Imperial rule was predicated on the relatively easy movement of people. This migration was sometimes coerced, as in the movement of indentured labor to the Caribbean, but sometimes this movement created claims that could be made against the colonial power, as when South Asians evicted from Uganda claimed British citizenship. Jeffrey Herbst has argued that before the African state system, people could move away, or “exit,” from repressive rulers. Exit was not illegal; indeed, movement was a way of life. But exit has become more difficult, at least in the sense that immigrants or asylum seekers face legal barriers that did not exist in the precolonial and colonial periods. There is a second way in which the state, or more precisely the interstate system, hinders the formation and survival of nonstatist forms. The continuing demand for the state is manifested in a refusal to grant de jure sovereignty or de facto recognition to other entities. Puntland, in northeastern Somalia, exemplifies this problem. The case of Puntland is, in a certain sense, dysfunctional. Scholars of African politics frequently castigate the international community for privileging nominal sovereign borders that are not backed up with effective force, legitimate or illegitimate. Functionally, it would make more sense to recognize, in at least a de facto category, the “government” of Puntland rather than the ineffectual government of Somalia. Such recognition may facilitate efforts at curbing piracy in the Indian Ocean, for example. Yet the refusal of the international community to recognize Puntland reveals a crucial aspect of the relationship between the state and nonstate forms: the proliferation of the latter intensifies the demand for the former. That is, the increase in nonstate actors and their abilities increases the need to police them through state institutions; hence, demand increases for states themselves or at least for state-ness, that is, the fulfillment

Sovereignty Out of Joint

33

of state functions by a combination of agencies. Put otherwise, it is precisely because Puntland can exercise the functions it does that it becomes imperative to build a functioning Somali state! There are three points to take away from this paradox. The first is that the need for state power derives not from “the coming anarchy.” Rather, the need for state power is an outcome of the fact that nonstate actors and socalled ungoverned spaces are often quite well organized. If such groups did not have a modicum of organization, they would hardly be threats, and, if they did not provide alternative ser vices and order to certain populations, much greater demand for state power would come from those populations. There can be, and often is, nonstate or antistate order; such a category is figured as a problem because it is non- or antistate, not because it is necessarily a lack of order. Numerous anthropological studies have documented that criminal groups or slum populations, for example, have a level of social structure and leadership that is often preferred by its members to that offered by the state and that the state-form constricts alternative imaginations of political community. To posit order on one side and anarchy on the other is to miss the repressive behavior of many states and how well organized nonstate groups may be, not to mention their ability to provide ser vices to their members. But the paradoxes, in terms of unintended consequences, go further. Consider a scenario where a central government coexists with a variety of nonstate actors wielding influence, for example, warlords controlling territory. Here sovereignty is divided, and there is no monopoly on violence; rather, there is a continuum of rule populated by different actors. But the central government lacks the resources to eliminate such competitors and, in any case, would likely lack the support of the population within the warlord’s territory. There is an impasse, or a de facto power-sharing or even federal arrangement. Now consider that the international community, in the broad goal of stabilizing states, is willing to support the government with resources and diplomatic cover if it tries to eliminate the warlord. The government has incentives to access these resources and becomes more likely to initiate a crackdown. Antigovernment actors that have always had incentives to provoke a government crackdown in order to gain support now can attribute the crackdown to foreign powers using the local government as a puppet. Suddenly, an informal truce between nonstate actors and the state can degenerate into internal conflict, and the continuum between state and nonstate actors becomes polarized into enmity. While the optimal scenario for the international community in this context is a decisive government victory, the costs

34

War, Sovereignty, and Plural Citizenships

may be quite high in terms of casualties and may lead to lasting resentment against the central government. But this scenario can get even more complicated—and often does. Decisive state victories in internal conflicts like counterinsurgencies are surprisingly rare. Faced with an impasse, the government is likely to engage with the warlord, giving the latter a stake in the postconflict order. The outcome is more or less the divided sovereignty that existed before the conflict, with two caveats. First, there will have been human and economic costs to the conflict. Second, the warlord may paradoxically strengthen his position through the conflict, whether by mobilizing support through promising security, getting a power-sharing stake, or gaining access to external resources as a condition of the postconflict settlement. State building (or building state capacity) is therefore a gamble. Not only is there a relatively high probability of failure; this failure may produce the opposite of the initial goals by empowering precisely the actors that state building was meant to eliminate. It is tempting to see any type of action as improving what are often quite desperate situations: the default assumption underpinning calls to intervene in Darfur is, for example, that the situation cannot get worse. This assumption may not be tenable since the unintended consequences of unsuccessful state-building efforts, whether in support of central governments or through direct foreign intervention, can actually make things worse. The seeming consensus that the state is in a historically anomalous crisis has two significant, if often unintended, consequences. First, this crisis has nothing to do with the historical development of the state and, being anomalous, can be “fi xed.” Second, because this crisis is the outcome of “failing states,” the only viable form of order is functioning states. I have suggested that neither of these consequences is tenable, and they are likely to worsen, not ameliorate, the unfolding crisis of the state.

Chapter 2

War, Rights, and Contention Lasswell v. Tilly SIDNEY TARROW Democracies often compromise their principles during crises: executive authority grows, rights of due process are set aside, and free expression suffers. But war’s effects on liberal-democratic institutions and processes are diverse, often contradictory, and not always negative. . . . Few questions are as important as war’s effects on democracy—and few questions are as neglected. —Elizabeth Kier and Ronald R. Krebs, In War’s Wake

Lasswell’s Challenge As war clouds gathered over Europe and Asia in the early 1940s, Harold Lasswell feared the coming of a garrison state, “a world in which the specialists on violence are the most powerful group in society.” Lasswell worried that as state power expanded to prepare for and fight wars, technology tied to militarism would pose a threat to democracy. The defeat of fascism reduced his fears somewhat, but, with the advent of the cold war, he continued to worry that the militarization of American society would lead to the selfperpetuation of elites “specialized to the planning and implementation of coercive strategies of power.” It was not just the increasingly lethal nature of war making that worried Lasswell but the insecurity of civilian populations under threat of air attack. The resulting uncertainty, he feared, would give policy makers license to maintain large military establishments even in times of peace and to curtail the rights of citizens. Although Lasswell could not have imagined the power

36

War, Sovereignty, and Plural Citizenships

of the media today, he also feared that the control of technology would give governments the tools and incentives with which to control public opinion. Lasswell was not alone; as World War II began, fear of unexpected airborne attack obsessed no less a player than Franklin Roosevelt. The nuclear age increased this anxiety still further: as concern over national security spread from fear of conventional warfare to fear of nuclear war, Lasswell’s concept of “personal insecurity” played a key role in policy makers’ capacity to control opinion. As Murray Edelman observed, “So long as war is a cold one, ambiguity about intentions and plans is maximal, and so is mass susceptibility to political cues about such plans.” Terrorism is not as lethal a threat as nuclear war. But the uncertainty of further terrorist attacks after 9/11 and the government’s response to that threat support Lasswell’s concerns. As a result of fear of unexpected terrorist attacks, the military-industrial complex was expanded, the state gained more control over information, and fear of risk allowed public officials to behave as if an actual war was afoot. This led the government to extend its reach alarmingly, to expand and partially privatize its intelligence apparatus, and to curtail rights that had been considered central to the American rights regime. As Ronald Krebs writes, “Events of and since 11 September 2001 have renewed interest in age-old questions about liberal-democratic governance in the shadow of insecurity, crisis, and war.”

Tilly’s Rebuttal But does war-borne governmental growth invariably produce a reduction of rights? Fifty years after Lasswell coined the term garrison state, Charles Tilly argued that war and preparations for war were at the origin of the modern state of rights and welfare. “Where do rights come from?” he asked, and then answered, “From war.” In a fusillade of books and articles from 1975 until his death in 2008, Tilly examined the relationship between war, state building, and rights. His conclusion would have surprised Lasswell: “I think,” he wrote, “that citizenship rights came into being because relatively organized members of the general population bargained with state authorities for several centuries.” Citizens and states, he reasoned, fi rst bargained over the means of war and then bargained over enforceable claims that would serve their interests outside of the area of war. These actions in turn helped enlarge states’ obligations to their citizens. The leverage thus gained broadened the range of enforceable claims citizens could make on

War, Rights, and Contention

37

states even more than it expanded the population who held rights of citizenship. Tilly saw four conditions that favored the concession of rights from reluctant rulers coming from war and from preparations for war: • the claimant and the object of claims each can reward or punish the other in some significant way; • they are in fact bargaining over those rewards and punishments; • one or both also bargains with third parties who have an interest in the claims in question; • the three or more parties to the claims thus constituted have durable identities and relations with each other. Tilly too was not alone. Princeton sociologist and American Prospect coeditor Paul Starr wrote, even in the wake of 9/11, that “in a sense, the liberal state and its laws are freedom’s power, the indispensable basis of freedom’s survival. Liberalism isn’t just a set of fine aspirations. Historically, it has emerged from the pressures of political conflict, domestic and international, not least of all from the pressures of war.” Can we infer from Tilly’s reasoning and Starr’s amicus brief that war and the state building it fostered in the past provide citizens with the tools to contest today’s garrison states? Tilly was not naïve about the tendency of rights regimes to falter when conditions changed. “If any of the four founding conditions . . . weakens significantly,” he concluded, “so will rights.” Under such circumstances, will citizens meekly consent to the reduction of rights, or will they mobilize to defend rights established in the past? That is the question that animates this essay. First, I will survey some of the literature on the relationship between war and rights to show how widely experts have differed. Second, I will compare examples of the effects of war on rights from episodes in American history to show how complicated and contradictory these effects can be. Third, I will draw a series of hypotheses from the literature on constitutional history and international relations regarding the conditions in which rights might be expected to expand or contract in times of war. Finally, I will turn to the Bush and Obama administrations’ policies toward rights following 9/11 and speculate about why this state of “quasi-war” has caused such concern among constitutional theorists and ordinary Americans. These are complicated issues. To limit the number of permutations somewhat, I will concentrate on war and rights only in the advanced industrial

38

War, Sovereignty, and Plural Citizenships

democracies and only during the current era, ignoring the historical question of the relations between war and rights regimes during the early modern era. I will also have nothing to say about the creation of rights regimes in emerging democracies and in authoritarian states. Not to reveal too much at the outset, I will argue that during and after some wars, with respect to different kinds of rights and in different conditions of domestic contestation, war can have a rights-reversing or a rights-increasing effect—or both. With Lasswell, I will maintain that some kinds of contemporary war making— like the so-called “war on terror”—do raise justified fears for the future of rights in contemporary democracies. But with Tilly, I will argue that abuses of rights during and after wars are sometimes rolled back, but only when contentious political actors are present to mobilize in their defense.

Rights in Historical and Contemporary Studies of Warfare How could two such skillful observers—Lasswell and Tilly—differ so fundamentally over the relations among war, states, and rights? Perhaps they were both right—but about different kinds of wars, different kinds of rights, and different degrees of domestic contestation? Later in the chapter, I will consider a number of hypotheses that may help us distinguish between when war is more likely to curtail or to extend rights in advanced industrial democracies. But we should first remember that the two theorists were writing about very different periods of history, wrote in different circumstances, and worked out of very different ontologies. First, Lasswell was writing about the possible mutations of the modern industrialized state, while Tilly was writing of the dawn of consolidated modern states in early modern Europe. State builders in Europe who were trying to cobble together unified states from a congeries of petty states had little to build with; hence, they often had to bargain with subject populations in order to do so. Moreover, not all of these protean states were of a piece: some took an authoritarian route; others fell by the wayside; and still others built on medieval constitutional foundations. Lasswell, in contrast, was interested in existing states that already possessed the fiscal and administrative capacities to mobilize resources for large-scale warfare. Such states may have less need to bargain with citizens. Second, Lasswell was writing soon after the brutal Japanese assault on China  in which aerial bombardment of civilian populations caused

War, Rights, and Contention

39

widespread death and destruction. In contrast, the Tilly of 1990 was writing as democracy was on the move in East Central Europe. The circumstances in which Lasswell’s famous article on the garrison state and Tilly’s essays on state building were written were important atmospheric conditions influencing each writer’s articles and how they were read. Third, there was an ontological difference between the two authors. The Lasswell who reacted to the Japanese bombing of Chinese cities believed deeply in the impact of technology on society. The causal model underlying “the garrison state” went from the technology of warfare to the militarization of the state to the control of public opinion. In contrast, Tilly objected to technological views of warfare throughout his work. His view was more politically embedded—rooted in rulers’ need for resources to fight their wars and on the leverage that this need gave citizens to demand rights in return for their support. But Lasswell and Tilly were not alone. A long line of scholars have written on the effect of war on contention and rights, many of them along Lasswellian lines but others in line with Tilly’s more long-term view. As Europeans were creating the modern state, Immanuel Kant wrote that “as long as states apply all their resources to their vain and violent schemes of expansion . . . no progress [toward civil republicanism] can be expected.” Similarly, at the dawn of the American republic, James Madison warned, “Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other.” Many recent scholars have shared these concerns. In an exhaustive study of war and state building, Bruce Porter concluded that “a government at war is a juggernaut of centralization determined to crush any internal opposition that impedes the mobilization of militarily vital resources.” Similarly, Anthony Giddens concluded that “the garrison-state emerges in a garrisonised world, in which resort to the threat or use of organized violence is more-or-less chronically present.” In one of the best studies in international relations of the impact of war on democracy, Elizabeth Kier and Ronald Krebs have brought together a number of scholars, some of whom share Lasswell’s fears. For example, the same Paul Starr who vaunted the importance of war in the creation of liberalism wrote in their book, “Infringements of free speech, attacks on dissenters and suspect minorities, governmental suspensions of habeas corpus—these have been the historical companions of war.” And as the editors warn, “Strong states often can, if they so desire, eviscerate formal constitutional guarantees.”

40

War, Sovereignty, and Plural Citizenships

But a second tradition, no less distinguished than the first, Tilly-like, sees war as an incubator of democracy. Max Weber observed that “the basis of democratization is everywhere purely military in character.” Like Weber, Otto Hintze concluded that external pressures bring about a progressive extension of political rights, although he saw this relationship more strongly for sea powers than for land powers. Porter too concedes that “when the state’s demand for war-fighting resources gives bargaining leverage to the holders of those resources,” war can foster democratization. Contemporary writers have taken a strikingly Tillian line: In his book Freedom’s Power, Starr wrote that in both Europe and America, “the demands of large-scale warfare . . . led governments to concede new rights of citizenship as a way of generating popular loyalty and rewarding sacrifice.” And the same Kier and Krebs who worried that strong states can “eviscerate constitutional guarantees” immediately caution that “there is no necessary contradiction between state power and democratic governance.”

Rights Retraction and Expansion in America’s Wars If so many experts drawing on such a wide variety of theories and evidence disagree so fundamentally about the impact of war on rights, perhaps a comparison of wars’ effects on rights in one country—the United States— will offer a more focused picture. Yet here again, there is as much evidence to support Lasswell’s thesis as Tilly’s. Throughout its history, America’s elected rulers have responded to war and the threat of war both by retracting and by expanding the rights of citizens and foreigners. Some of these episodes threatened civil liberties; others expanded certain rights; and still others had mixed results for America’s regime of rights. Consider first the “quasi-war” with France that gave President John Adams and the Federalist Party a pretext to pass the Alien and Sedition acts. An opponent of the French Revolution, Adams was also worried about the Democratic Republican clubs that had sprung up in the new nation and was fearful that they would help propel his vice president, Thomas Jefferson, into the presidency. In response to the absurd idea put forward by the Federalists that besieged France was preparing an army to invade its former ally, the press was shackled, immigrants were forced to flee, and a member of Congress was imprisoned. Now think of the Civil War—ostensibly fought to grant rights to the slaves. Faced by widespread opposition to the war in border states and by

War, Rights, and Contention

41

resistance to conscription in the cities, President Abraham Lincoln and his generals retracted the right of habeas corpus and muzzled newspapers critical of the war. Though slave soldiers were admitted into the union ranks and the Emancipation Proclamation soon followed, the North’s main motive was not to grant rights to African Americans but to defeat the Confederacy. As the twentieth century dawned and war making grew more lethal, the retraction of rights in the name of national security deepened. During and after World War I—ostensibly fought to make the world safe for democracy— new versions of the Alien and Sedition acts were rammed through Congress, freedom of the press was suppressed, opponents of the war were attacked, and hundreds of Eastern European immigrants were rounded up and deported. World War II was less dangerous for immigrants of European origin than World War I, but it was lethal for the rights of Japanese Americans, thousands of whom were locked up in detention camps for the duration of the war. Once war began, Roosevelt was generally more relaxed about opposition, but he had German spies executed on the order of military commissions, an act that would later be used by the Bush administration for legal support of its detention policies. The cold war era marked the nadir of civil liberties, when thousands of Communists and “fellow travelers” lost their political rights and were purged from government and professions. And the Vietnam era led to subversion by the Federal Bureau of Investigation (FBI) of the right to protest and caused the White House to cross the line from executive discretion to criminal behavior. In summary, the fate of civil rights and civil liberties in America’s wars lends credence to Lasswell’s dark image of the garrison state. But America’s bellicist history offers as many examples of the expansion of rights during and after wars as it does of rights restriction: • The Democratic Republicans who swept Adams out of power in 1800 rejected Adams’s rights-curtailing acts, and Jefferson ran his successful 1800 election campaign against them. • Lincoln may have trampled on the right of habeas corpus, but he was also the president who freed the slaves. Moreover, the enormous physical losses of the war led to the concession of soldiers’ and mothers’ pensions that were one origin of the American social-welfare system. • Although President Woodrow Wilson, and especially his attorney general, Mitchell Palmer, rode roughshod over freedom of speech, the reaction to those war-borne policies led to the creation of the American

42

War, Sovereignty, and Plural Citizenships

Civil Liberties Union. It was not many years later that Oliver Wendell Holmes, Jr., and Louis Brandeis’s famous dissent in the Abrams case became the basis of Supreme Court doctrine on free speech. • Although Franklin Roosevelt, to his enduring shame, sent thousands of Japanese Americans to internment camps, in his administration, the long process of integration of the armed forces began when he created the predecessor of the Civil Rights Commission, the Fair Employment Practices Committee. • At war’s end, Congress gave thousands of veterans access to the G.I. Bill of Rights, a high point of social policy in the postwar period and one that created incentives for civic participation. • As for the cold war and Vietnam War years, they profoundly threatened Americans’ rights, but the abuses of rights during those years were later rolled back by two decades of court judgments and rightsprotecting legislation. • America’s wars also gave a boost to civil-society organizations, both those that were fostered by the state and others that arose in response to the transformations that war brought to the American political economy. Thus, there have been as many expansions as retractions of rights during and after America’s wars. How can we begin to sort through the tangled evidence of fact and opinion on whether and how rights have been abused or expanded by war making? No single answer to this difficult question will be hazarded in this paper. In the next three sections, I will extract a number of hypotheses from two large bodies of literature that have dealt with this question mainly in isolation from one another: constitutional history and theory, and international relations. But rather than offer a single answer to the Lasswell-Tilly debate, these bodies of literature suggest that variations in war making, in the type of rights, and in different forms of partisan and political contestation affect rights during and after wars. The next three sections will construct a propositional inventory.

Variations in War and War Making Although students of rights often regard wars as undifferentiated objects, each war is different. International relations scholars have produced a

War, Rights, and Contention

43

number of typologies that may be relevant to generating hypotheses about the effect of war on rights. The Correlates of War (COW) project has divided conflicts into interstate, intrastate, and extrastate wars; a group in Uppsala, Sweden, has produced a similar typology; and Kalevi Holsti has divided war aims into instrumental and consummatory goals. As Kier and Krebs have pointed out, war is not an undifferentiated process. Its effects on domestic society and politics can be expected to vary according to which phase of the process we examine: the threat of war, mobilization for war, and warfare itself.

War’s Threat Paradoxically, some of the periods of American history that were most threatening to rights—the “quasi-war” with France and the cold war—were not periods of large-scale warfare but were periods of a threatening war. How real the threat was does not seem to have mattered: decision makers reacted to uncertainty by circling the security wagons around the United States. The same has been true of the extended period of “small wars” and the fear of attack we are living through today: it is the threat of terrorism that justifies the expansion of the executive power and threat to the rights of citizens and foreigners. Hypothesis 1: Regardless of the scale of war feared or entered into, because it produces an atmosphere of uncertainty, the threat of war is likely to bring restrictions of rights compared with the previous period in a nation’s history.

Mobilization for War In his classical study of war and mobilization, Stanislav Andreski invented the idea of a “military/civilian ratio”: in other words, the higher the proportion of the population conscripted for war, the greater the probability that war would advance equality.Andreski’s thesis is sometimes conflated with Tilly’s, but Tilly was not concerned with equality as much as with the extension of rights—which might actually increase the rights of some citizens at the cost of the rights of others. Nor does Andreski take us very far in specifying the actual mechanisms that would translate the ratio of conscription into greater equality. Nevertheless, Andreski’s thesis has the virtue of providing a testable hypothesis:

44

War, Sovereignty, and Plural Citizenships

Hypothesis 2: The higher the proportion of a population that is conscripted for war, the more likely is the war to produce increases in equality. But note that a government that expands rights to core sectors of the population may restrict rights of minorities when it actually goes to war, as the American government did to Japanese Americans in World War II. Moreover, Andreski was mainly concerned with large-scale conventional war; he did not contemplate mobilization for the kind of small-scale and irregular wars that have been dominant in the half-century since the end of World War II. Nor did he consider the professionalization of the armed services that lionizes military valor and silences alternative voices or the increasing use of private contractors in place of citizen-soldiers. Th ree alternative hypotheses are suggested about mobilization by these changes in warfare: Hypothesis 2a: Mobilization for irregular or guerrilla wars does not have the equalizing effect on society that large-scale warfare does. Hypothesis 2b: Professionalization of the military can produce a high mobilization ratio without producing greater equality or an expansion of rights. Hypothesis 2c: The higher the proportion of military contractors in a country’s mobilization for war, the weaker the possibility of the maintenance of its rights regime. But Andreski’s military/civilian ratio and the hypotheses derived from it leave out a crucial aspect of mobilization: how the population is mobilized. Elizabeth Kier, in her comparison of Italian and British mobilization of labor in World War I, proposes a typology that can help fi ll this gap. She argues that “some states develop a harsh and punitive strategy to gain labor’s compliance with the war effort. Other states gain labor’s consent through calls to patriotism and promises of future rewards. Some states also appeal to labor’s sense of what is ‘just’ by equitably distributing war time sacrifices and including labor’s representatives in decision-making forums.” Kier’s typology translates into three predictions about the nature of mobilization:

War, Rights, and Contention

45

Hypothesis 3a: A strategy of coercion will restrict the rights of workers the most heavily. Hypothesis 3b: A strategy of patriotism and promise of future awards will restrict rights somewhat less so. Hypothesis 3c: A strategy of representation in decision-making forums will be most friendly to the preservation of existing rights and may even produce rights expansion.

Warfare Andreski’s thesis was based on his expectation that future conflicts would be large-scale wars. We now know that most of the wars in the last halfcentury have been smaller in scale and that small-scale conflicts like the Iraqi and Afghan wars are just as likely as major conflicts to threaten rights. It seems logical to suppose that large-scale wars will threaten rights more than small-scale wars, but the record from American history at least is mixed: the quasi-war with France threatened rights far more than the real war against England in 1812; and the cold war was more destructive of rights than World War II. Ronald Krebs distinguishes between large-scale wars, which call for “exceptional measures,” and small-scale wars. He sees the former “represented as departures from the norm” and therefore with little long-term effect on rights. This view is supported by Jack Goldsmith and Cass Sunstein’s analysis of the post–World War II period, when elites regretted wartime restrictions on civil liberties. After 1945, these restrictions seemed—“from the ex post perspective when the danger of war has passed and the true extent of the threats become known—to be unwarranted or extreme.” In contrast, a small-scale war—the Vietnam War—triggered the Nixon administration’s assault on rights. But that response was in large part a reaction to the enormous antiwar movement faced by both the Johnson and Nixon administrations. Hypothesis 4: The size of a war effort is indeterminate in its effect on rights, depending in part on the degree of domestic contestation against the war (see “Contention over Rights” below). One reason I think the scale of war is indeterminate on its effect is that it leaves out both the nature of the aims for which wars are fought and the

46

War, Sovereignty, and Plural Citizenships

war’s duration. Krebs thinks that wars are cast either as “restorative,” aimed at restoring prewar balance, or “transformative,” “facilitat[ing] a backlash that reworks the constitutional balance.” Using the Vietnam War as an example of “a transformative venture,” Krebs argues that as its failure became clear, there was a backlash against excessive executive authority. In contrast, he argues, the French war in Algeria under Charles de Gaulle became “a restorative venture” that led to “unparalleled and untrammeled power of the executive in the Fift h Republic.” Hypothesis 5a: Transformative war aims are inherently implausible, leading to executive overreach and thus to postwar rollback of rights abuses during wartime. Hypothesis 5b: Restorative war aims are plausible and attractive, leading to general acceptance of executive expansion and restriction of rights. One could dispute whether the United States’ war aims in Vietnam were “transformative” or whether there was a long-term restriction of rights in France after the end of the Algerian war. But Krebs’s typology gives us a lever to go beyond the level of mobilization to examine the type of war for which a populace is mobilized. Another such lever is the duration of a war. During short wars, in which there is likely to be a rally-round-the-flag effect, elites are too absorbed in war preparation to pay much attention to constitutional issues. But as wars drag on and the civilian population begins to suffer hardships, states may impose restrictions on movement, speech, and assembly—often in the name of defending the liberal values of free movement, free speech, and free assembly. Hypothesis 6: Pressure on citizens to conform to support of war increases pressure on rights in direct proportion to the length of the conflict. The outcome of a war can also affect whether rights are contracted or expanded. Yet theorists divide over whether losing in war promotes democracy. While Tilly lists losses in war as one cause of democratization, Dan Reiter fi nds no evidence that defeat in war makes a democratic tran-

War, Rights, and Contention

47

sition more likely. Where the winners in a war are democracies—as was the case in Western Europe after World War II—there is probably a tilt toward democratization among the losers, particularly if they are occupied by the victorious forces. In contrast, in Eastern Eu rope, which was occupied by the U.S.S.R. after that war, it took forty years for democracy to return. Hypothesis 7a: Democratization tends to diff use from winners to losers after wars when the losers are occupied by democratically governed winners. Hypothesis 7b: Authoritarianism tends to diff use from winners to losers after wars when the losers are occupied by authoritarian governed winners. These hypotheses, which are largely drawn from a selective reading of the secondary literature in international relations and constitutional history, are by no means definitive or mutually exclusive. For example, as Krebs writes of the Algerian war, war aims can change in the course of a long war, and as Kier writes of the mobilization of labor in World War I, the mode of mobilization can change in the course of the war. I present them here to underscore how variations in the threat of war, mobilization for war, and the character of the war itself can affect regimes of rights in different ways. But the nature of the rights considered also matters:—whether they are civil rights, political rights, or social rights.

Variations in Rights When Tilly argued that Eu ropean state builders expanded rights in order to gain consent for and support in prosecuting their wars, he had in mind the early modern Western experience of consolidating states. But he was not very specific about the kinds of rights that expanded in response to rulers’ war-making needs. His model can be boiled down to a simple hypothesis: Hypothesis 8: Early state builders, attempting to piece together consolidated states from fragments of territory or from the

48

War, Sovereignty, and Plural Citizenships

“composite states” that many of them inherited, were constrained to offer rights to groups of citizens as payoffs for their support. But between elite rights like the right of the British Parliament to control finance, which was extracted from kings during successive military campaigns; mass political rights like the suff rage, which expanded broadly after World War I; and social rights like the G.I. Bill of Rights, which was passed after World War II, there are great differences. Students of law and rights know this well but have not always been as diligent in applying these differences to the impact of war. If we want to understand the impact of war on rights, we will need to unpack different types of rights. Using T. H. Marshall’s trilogy of civil, political, and social rights, we may be able to specify these relationships more precisely. With some exceptions, political and social rights seem to expand after wars, while the fate of civil rights and civil liberties is much more contentious.

Political Rights In the progression of modern wars in the West, it is the right to vote that was most reliably related to mobilization for war. As Starr recalls, “In the United States the franchise was extended after both the Revolutionary war and the War of 1812 . . . ; after the Civil War (to African Americans through the Fifteeenth Amendment); after World War I (to women, through the Nineteenth Amendment); and during the Vietnam War (to eighteen year olds through the Twenty-Sixth Amendment).” The same was largely the case in Europe, where, for example, women were extended the right to vote in a large number of countries after World War I. The logic seems to have been that sacrifices made by women to support the war effort were deserving of equal political rights. Hypothesis 9: War leads to an extension of political rights to groups that did not previously formally possess them.

Social Rights The extension of social rights is also connected to warfare but less predictably so. The logic is that the expansion of government intervention in the economy during wartime produces a tendency among political elites and the public to accept a strong government role in society at war’s end.

War, Rights, and Contention

49

Hypothesis 10: Social rights expand at the end of wars in direct proportion to wartime privation and to wartime expansion of the government’s role in the economy. But while the welfare state in Europe was expanded strongly after World War II, the end of that war led to a retraction of federal power in the United States, as the reach of the state and social rights were expanding in Europe. According to Mark Wilson, wartime mobilization was militarized in the United States and was carried out under civilian control in Europe. In addition, the strength of conservative opposition was greater in the United States. Hypothesis 11: The militarization of government intervention in the economy and the strength of conservative opposition intervene between the size of government intervention in the economy and the expansion of social rights at war’s end.

Civil Rights Conflicts over civil rights and civil liberties have scarred the last decade of American constitutional and political history. First, by detaining suspects in the War on Terror in Guantánamo and sending others to countries where they were tortured; second, by massive invasions of privacy of American citizens; and third, by refusing suspects habeus corpus rights, the Bush administration triggered a slow-burning but ultimately explosive revolt from legal theorists and practitioners, civil-liberties groups, and grassroots movements against its practices at home and abroad. As in the past, these practices were justified by national-security considerations. Hypothesis 12: Because classical civil liberties like freedom of speech, of the press, and of assembly are most likely to be feared by elites as undermining the war effort, they are the most likely to be compromised during time of war. But when we look at variations in contraction and defense of civil liberties after wars over time, even within the same country, the picture is more complicated. When, after World War I, Attorney General Palmer deported thousands of immigrant radicals from the country, there was general public approbation for this repressive move, and it took two decades of liberal

50

War, Sovereignty, and Plural Citizenships

jurisprudence for the Supreme Court to reverse this position. And when Roosevelt tried eight German spies in secret, “FDR’s creation and use of a Military Commission was widely viewed as legitimate, appropriate, constitutionally valid, authorized by Congress, consistent with American democratic and rule-of-law values, protective of civil liberties and helpful to the war effort.” But when President Bush created military commissions in 2001 using the same congressional authority as Roosevelt had used in the German saboteurs’ case, there was a widespread negative reaction among legal scholars and civil-liberties groups. What explains the difference? Goldsmith and Sunstein consider a number of legal, historical, and military explanations for the differences in the reactions to the two episodes, which they reject, before settling on two differences that they think are more persuasive: the greater degree of threat of World War II than of the War on Terror, and what they see as evolving social attitudes toward government, the military, and law. In particular, they see a “massively strengthened commitment to individual rights, not only within the culture but within the legal system itself.” And in 2003, they concluded that “the nation is now far less trusting of government, and far more solicitous of the accused, than it was sixty years ago.” Goldsmith and Sunstein were writing soon after the outrages of September 11, 2001, when the scope of the Bush administration’s offenses against the Constitution were not yet known. But their idea of a “libertarian ratchet” has been taken up by a number of others, including two conservative legal scholars, Eric Posner and Adrian Vermeule. From the end of World War II onward, Posner and Vermeule see a libertarian ratchet in public and elite opinion, which made it harder for Bush to implement what they see as minor constitutional inroads than it was for previous administrations to enact more aggressive measures. Hypothesis 13: Since World War II, there has been a strengthened commitment to individual rights in the legal system and in American political culture, which translates into greater public opposition to government restriction of rights in times of war. Two political scientists, Matthew Kroenig and Jay Stowsky, make a parallel argument. They examined the legislative histories of the Bush security policies and found that while the initial proposals were highly repressive, they were “rolled back at birth” in the political process. Carefully cata-

War, Rights, and Contention

51

loguing the administration’s proposals and comparing them to the legislative output that resulted, they conclude that “war makes the state, but not as it pleases.” They find that “each proposal to significantly expand state power in the United States since September 11 has been resisted, restrained, or even rejected outright. This outcome,” they conclude, “is the result of enduring aspects of America’s domestic structure: the separation of powers at the federal level between three co-equal and overlapping branches, the relative ease with which interest groups access the policy-making process, and the intensity with which executive-branch bureaucracies guard their organizational turf.” Kroenig and Stowsky go on to show how many proposals of the Bush administration were watered down in their passage through Congress or in conflict with interest groups or resistance by bureaucratic actors. Hypothesis 14: The pluralistic structure of American politics acts as a check on executive expansion and on the restriction of rights. I am not persuaded by the merit of these arguments. The fact that policies are implemented in less draconian form than the form in which they are proposed does not make them any less invasive of civil liberties. The problem with both the Goldsmith-Sunstein and Kroenig-Stowsky analyses is that there is also evidence for a “statist ratchet,” which leaves residues of repression even after dangers to national security have passed. Hypothesis 15: The growth of the national state during wartime increases the danger to civil liberties in war’s wake. Moreover, neither Congress nor the judiciary has been especially solicitous of rights during times of national emergency or periods in which the threat of national emergency can be used to justify a restriction of rights. The only factors that can seriously deter an aggressive administration from impinging on rights are the defense of rights by mobilized elite and public opinion in contention over rights.

Contention over Rights Some wars in some epochs have given rise to contention over rights that range from partisan conflict to legal mobilization to overt resistance. In

52

War, Sovereignty, and Plural Citizenships

other cases, even wars that are fought on behalf of democracy have given rise to little support for rights. It is these mechanisms of resistance, taking partisan, legal, and grassroots form, I will argue, that produce either the ratcheting effect of wartime repression or a rollback of state aggrandizement at war’s end.

Partisan Conflict Many of the critiques against the Bush-era military commissions and their abuse of rights were directed at a conservative administration that left power in 2008. Most of these voices were muted when a new Democratic administration came to power in 2009. This change suggests a partisan-political hypothesis: Hypothesis 16: Liberal or progressive governments are more likely to defend civil liberties than conservative ones. The hypothesis is plausible, but, if Lasswell was right, the garrison state knows no partisan boundaries. Indeed, the “liberal” Obama administration has done nothing to reduce what Hendrik Hertzberg of the New Yorker calls the “vast archipelago of gleaming new office parks, concentrated in the Washington suburbs but also scattered throughout the country, protected by high fences and armed security guards, bland-looking but inaccessible, and fi lled with command centers, internal television networks, video walls, armored SUVs, and inner sanctums called SCIFs, short for ‘sensitive compartmentalized information facilities.’ ” In a preliminary search of evidence to test the partisan-political hypothesis, I did a rough-and-ready count of the policies that were shifted from the rights-retracting and executive-expanding policies of its predecessor. There were indeed some reversals of some of the Bush-Cheney policies (Table 1). But there were also reaffirmations of those policies. Table 2 summarizes these moves, which should give pause to those who believed the election of Barack Obama would turn back the danger to rights in America. Hypothesis 17: Where questions of national security are concerned, liberal and conservative administrations are equally likely to abuse constitutional guarantees of civil liberties.

War, Rights, and Contention

53

Table 1. Obama’s “First 100 Days”: Rights Policies Revoking Bush-Cheney Policies • Obama issues a directive to shut down Guantánamo (New York Times, January 21, 2009). • The Justice Department reviews interrogation under Bush (New York Times, February 17, 2009, A20). • The president permits resettlement of seventeen detainees (New York Times, February 18, 2009). • The administration says that it would abandon the Bush administration’s term “enemy combatant” (New York Times, March 13, 2009). • The Justice Department releases the Yemeni doctor imprisoned for anthrax involvement (New York Times, March 30, 2009). • Obama asks Congress to expand the rights of defendants to contest charges against them (New York Times, May 15, 2009).

Table 2. Obama’s “First 100 Days”: Rights Policies Retaining Bush-Cheney Policies • The administration backs the practice of seizing terror suspects abroad and sending them to third countries for questioning (Wall Street Journal, February 10, 2009). • Obama upholds the detainee policy in Afghanistan (New York Times, February 26, 2009, A6). • Lawyers for the Obama administration try to throw out a civil lawsuit against John C. Yoo, whose memoranda on torture were used to justify sweeping policies on detention and interrogation (New York Times, March 6, 2009). • The Justice Department argues that the president has the authority to detain terrorism suspects without criminal charges (New York Times, March 13, 2009).

54

War, Sovereignty, and Plural Citizenships

Table 2. Continued • The administration moves toward reinstatement of Guantánomo military courts (New York Times, May 2, 2009). • Obama proposes a plan to Congress to keep detainees indefinitely on U.S. soil (Wall Street Journal, May 22, 2009). • Attorney General Holder announces that United States can kill U.S. citizens in terror groups (U.S. News and World Report, March 12, 2012).

Cause Lawyering Much of the contention over the Bush administration policies took the form of “cause lawyering” on the part of platoons of human-rights lawyers. In response to these efforts, a series of Supreme Court cases established the right of such individuals to hear the evidence against them. The key Supreme Court cases were these: • In Rasul v. Bush, 542 U.S. 466 (2004), the U.S. Supreme Court held that the U.S. court system has the authority to decide whether foreign nationals (non-U.S. citizens) held in Guantánamo Bay were wrongfully imprisoned. • In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the U.S. Supreme Court reversed a lower-court dismissal of a habeas petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an “illegal enemy combatant.” • In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the Supreme Court held that military commissions set up by the Bush administration to try detainees at Guantánamo Bay lack “the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.” • And in Boumediene v. Bush, 553 U.S. (2008), on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina who had been held in military detention by the United States at the Guantánamo Bay detention camps, the Supreme Court held that the prisoners had a right to habeas corpus under the U.S. Constitution and that the Military Commissions Act was an unconstitutional suspension of that right.

War, Rights, and Contention

55

Hypothesis 18: “Cause lawyering” that brings cases to the U.S. Supreme Court can turn back the restriction of rights in wartime by aggressive executives.

Civil-Society Groups Although the ultimate destination of resistance to executive restriction of rights are the courts, lawyers on their own cannot be expected to turn routine practices of pro bono work into defense of rights. But the courts alone cannot prevent a determined administration, abetted by a weakkneed Congress, from getting its way where rights during wartime are concerned. Each move by the courts led to evasive action by the administration and to modifications in the structures created to evade constitutional guarantees. It was traditional human-rights and civil-liberties groups like the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights that orga nized the campaigns in defense of Guantánamo detainees, for protection of privacy, and to seek the responsible parties for abuse of prisoners. For example, by 2008, and especially after the release of the Abu Ghraib torture photos, the Center for Constitutional Rights had over five hundred lawyers on its list of those who were willing to defend the habeas corpus rights of detainees. Professional associations, like the American Bar Association, have also been important in defending citizens’ rights against governmental intrusion. An unusual example was the campaign launched by the American Librarians’ Association denouncing an article of the U.S. Patriot Act that allowed the FBI access to the records of library loans of individuals. Working with more typical defenders of civil liberties, like the ACLU, the librarians exposed not only the threats but also the absurdities of the U.S. Patriot Act. More typical of traditional social-movement activity was the grassroots movement created to protect First Amendment rights soon after the passage of the U.S. Patriot Act. Beginning in New England, where the institution of the town meeting had its start, and based at first on established civil-liberties groups, a national network of supporters of First Amendment rights was formed. What was most interesting about this network was that, as it diffused, the range of its participants broadened, from the “usual suspects” on the progressive and liberal left to more mainstream groups and associations.

56

War, Sovereignty, and Plural Citizenships

Hypothesis 19: Civil-society groups organize the social and professional networks that are capable of combining legal representation with political pressure on behalf of rights in time of war. Only when committed minorities are willing to face hysterical publics and opportunistic politicians can regimes of rights survive. As Guantánamo defense lawyer P. Sabin Willett writes, “The rule of law is not coming back on its own. It will come back only when you go out and grab hold of it by the ears and drag it back. In the ballot box and the courtroom and the newspaper and the classroom and the public street.”

Not a Conclusion Readers hoping for a key to unlock the case of Lasswell v. Tilly will have been disappointed by this essay. Both theorists had a grasp of an important part of a variegated puzzle. In the long run, Tilly was probably correct that— other things being equal—rights were expanded by rulers seeking domestic support and financial resources to fight their state-building wars. But as someone once said, “In the long run, we are all dead.” History may ultimately resolve conflicts over war and state building through the Supreme Court, but in the meantime, prisoners vegetate in prisons, invasions of privacy are extended, and the myth of American rights is used to justify flagrant abuses. As Joseph Margulies writes, “Rather than a return to some mythical pre-9/11 normal, I suspect we are reaching a new normal, in which illiberal behavior is assimilated into old narratives of national identity. People believe we have changed when we have not, and the national government continues to do in practice what it rejects in rhetoric. The myth of national identity, being sacrosanct, remains constant; the reality of national behavior changes dramatically.” With respect to modern states and modern warfare, the size of the state, its partial merger with the military-industrial complex, and its control of information give more of an edge to Lasswell’s fears than to Tilly’s measured hopes. If this essay has contributed something beyond Lasswell’s and Tilly’s theories, this is what I would claim for it: • First, I argued that the nature of a war, the variations in types of rights and the character of contention all influence whether rights emerge reduced, unchanged, or expanded from warfare.

War, Rights, and Contention

57

• Second, wars cannot simply be coded as large or small, short or long. The aims of war makers, the character of their political systems, and who wins and who loses probably have more of an effect on how rights emerge from military conflicts. • Third, of the three main forms of rights etched by T. H. Marshall, civil rights and liberties are probably the most susceptible to erosion as the result of war. • Fourth, the fragmentary evidence we have from the last decade’s interminable conflicts suggest that although whichever party is in power probably has little effect on rights, legal action linked to social-movement mobilization is probably the best hope for civil libertarians to turn a Lasswellian present into a Tillian future. “White-hot bargaining,” wrote Tilly, “forged rights and obligations of citizenship.” That statement is as true today as it was during the construction of the modern European state.

Chapter 3

Subcontracting Sovereignty The Afterlife of Proxy War ANNA TSING

I

n his stirring manifesto Good Muslim, Bad Muslim, Mahmood Mamdani suggests that U.S. proxy wars in Asia, Africa, and Latin America have changed the global political landscape. By arming ethnic, religious, and political splinter groups as so-called counterinsurgents, and giving them the job of deposing nation-states, U.S. proxy wars have encouraged claims of sovereignty to proliferate. Nasser Hussain’s analysis in this volume shows how counterinsurgency sponsors newly segregated geographies; strategic wartime barriers become long-lasting political niches. In the terms Sidney Tarrow introduces in this volume, imperial counterinsurgency ironically arms a “garrison state” in the same process as mobilizing entitlements—and not within but beyond the boundaries of national citizenship. To maintain a political voice gained through proxy war, I argue, is the challenge of subcontracted sovereignty. Proxy war is “subcontracting” to the extent that it does a job—engaging in combat with national enemies—more ordinarily associated with the internal machinery of the nation-state. To stretch the concept of subcontracting in this way is to emphasize the novelty of the proxy relationship, in which the sovereignty of proxy warriors can never be complete. What kind of sovereignty can proxy warriors claim? Sovereignty is a confusing word because it is often associated only with established states. But anthropologists have been willing to imagine sovereignty more flexibly to follow less fully institutionalized claims as well as sovereignty’s partiality even in the strongest

Subcontracting Sovereignty

59

states. Sovereign power, according to Thomas Blom Hansen and Finn Stepputat, is “a tentative and unstable project whose efficacy and legitimacy depend on repeated performances of violence and a ‘will to rule.’ ” U.S. proxy wars have sponsored performances of violence and the will to rule for a shifting set of claimants with varied and uncertain relations to the apparatus of states. Claims to sovereignty encouraged during proxy war compete and overlap with other performances of violence and political community. Such dependent and partial claims exemplify the confusions and contradictions of sovereignty today; more proxy wars will mean more layering. Proxy war is often most effective where it joins older strategies for maintaining a landscape of multiple sovereignty. In Southeast Asia, both states and tribal minorities have maneuvered for many centuries within a legacy of competing and overlapping sovereigns. Between the 1950s and the 1970s, U.S. proxy war in the hills of Laos joined these older political resources, later expanding their possibilities with new arenas for performance, including refugee camps in Thailand and immigration to the United States. This chapter explores the dilemmas and strategies of citizenship of Hmong refugees from Laos, now living in California, as they work to sustain the doubled citizenship of that subcontracted sovereignty once facilitated by U.S. anti-communist war. Hmong refugees’ strategies of citizenship are “doubled” to the extent they aim to hold on to dreams of autonomous Hmong freedom, dreams encouraged by their participation in the U.S. war effort in Southeast Asia. U.S. sponsorship and Hmong freedom became inextricably entangled in the mix of war memories and potential futures that energize refugee communities. I call the predicaments of this entanglement “double-or-nothing” citizenship because Hmong Americans call up Hmong sovereignty and U.S. sponsorship in the same breath. Long after the troops have been disbanded, proxy war is still at work. The cause of Hmong freedom has deep roots. Hmong sovereignty claims hark back to mythical and historical conflicts with the Chinese state and the loss of the Hmong kingdom. Between the 1950s and the 1970s, Hmong leaders mobilized their communities as ground troops for the Central Intelligence Agency’s war against communism by connecting their efforts with the older claims for Hmong freedom. This CIA initiative is often called the U.S. “secret war in Laos,” although it was hardly a secret there. Whole Hmong villages were swept into the war, surviving through CIA rice drops. Some Hmong tried to remain neutral, and some fought with the Pathet Lao. These Hmong, however, are not represented in U.S. refugee communities; Hmong immigrants to the United States were required to detail their ties to the CIA

60

War, Sovereignty, and Plural Citizenships

or to the U.S.-supported Laotian Royal Armed Forces to obtain refugee status. Among U.S. Hmong, as a result, the cause of Hmong freedom is hard to separate from participation in the CIA war. In Laos, these Hmong had mobilized for the U.S. cause as the key to Hmong sovereignty. As U.S. citizens, Hmong Americans continue to pursue a double-or-nothing strategy in which hopes for Hmong freedom develop both in dependence and in tension with U.S. entitlements. In this respect, they exemplify the afterlife of proxy war. To the extent that imperial power rests on mobilizing less than fully sovereign groups to fight on its behalf, niches for the practice of double-or-nothing citizenship proliferate. In speaking of citizenship, I refer to the performance of violence-laden prerogatives for political community rather than legal inclusion and exclusion. Considering the citizenship dilemmas of Hmong Americans, I am caught by the continual repetition of war stories full, not of bravery, but of sacrifice, fear, betrayal, and pathos.

I began writing this chapter in response to a shock. News had just come that a Hmong student of mine had been shipped out to the U.S. war in Iraq. I eventually learned that this was not true; he had merely been reassigned as a medic from the navy to the marines. Still, the shock of having to prepare to lose him had possessed me. There was nothing I could think of to do—except to continue the work that he and I had started together, but with a new urgency. I have known Patrick as a gentle, curious young man, bravely peering into the esoteric rituals of the Western academy. Patrick (a pseudonym) was born in Ban Vinai refugee camp in Thailand but came to the United States with his parents at the age of five. He grew up in the close-knit ethnic enclave of Fresno, California, where his mother could buy supplies at the Hmong supermarket and Patrick could have his hair cut not just by any Hmong but by a fellow White Hmong, since, as some of his relatives claimed, the Green Hmong used to be cannibals. His father, a military leader under Hmong General Vang Pao during the CIA secret war in Laos of the 1960s and 1970s, kept tight control of who came through the door of their house since the wrong Hmong could leave traces of poison to kill you. Patrick’s world growing up was a Hmong American world. Hmong neighbors formed the majority in Patrick’s public school and the main body of his childhood friends. For Patrick to attempt the University of California’s education was a brave and difficult act of mastering new languages, new genres, and new systems

Subcontracting Sovereignty

61

of understanding. I felt privileged to relearn the unfamiliarity of this world—the deep exoticism of our academic ways of knowing—by working with Patrick. He also taught me about Hmong Americans. He had begun to write what seemed a brilliant honors thesis on the forms of political rhetoric Hmong Americans use to mobilize their community by reliving the emotional experience of war in Laos. He wanted to go to graduate school. But after graduating he ended up, as his brother before him, joining the navy. I do not know whether he will be the same person when he comes back. I write this chapter for the Patrick I knew, in dialogue with the many things he taught me. I wish I had the knowledge to write something similar to his thesis, but I do not. Still, I write what I learned from him but, necessarily, within those rituals of the Western academy I have deeply internalized. Let me begin again, then, in the security of counting. One: Hmong exemplify the pleasures and dangers of proxy war, with its subcontracted sovereignty. Two: Hmong Americans continually call up the experiences of war as a way of mobilizing a political community with the feel of sovereignty. Evocations of war are intended to interpolate listeners, including non-Hmong anthropologists. They are powerful calls to return “freedom” to the Hmong in rightful exchange for so much battlefield injury and death. Three: This dearly bought freedom requires overlapping and sometimes incompatible practices of sovereignty and citizenship. Caught in the repetitive evocation of military time, leaders cannot but advocate the overthrow of Laos and the return to the homeland. Yet, as the 2007 arrest and 2009 exoneration of Hmong General Vang Pao from just such charges has shown, enacting politics within these contradictions requires a delicate dance of loyalty, simultaneously grasping and disavowing multiple sovereignty and citizenship. Four: To dance across overlapping and unreliable citizenships, Hmong Americans learn to tell stories full of the fear and pathos of survival. The teller, the “I” of the story, must speak for many. Hmong public discourse creates and re-creates multiple sovereignty through its rhetorical forms. The rest of this chapter works to bring these points to life.

The Legacy of Freedom According to Hmong oral history and shamanic text, Hmong originated thousands of years ago in what is now northern China. The slow Hmong migration to the south, resisting Han Chinese authority all the way, is central to the stories Hmong tell themselves about Hmong identity and freedom.

62

War, Sovereignty, and Plural Citizenships

The truth of the stories is less important than the weight of sovereignty claims carried on their longue durée. “Hmong means we came from Mongolia,” many California Hmong told me, with how much jest I couldn’t tell. Patrick participated in the mix of fact and fiction that reconfirms this legacy of autonomous Hmong time. He wondered whether the great mythical beasts whose names are remembered by the elders might be dinosaurs. He told me of the Hmong ancestor who invented metal forging, an invention only later surrendered to the Han Chinese; he puzzled, drawing from the thinking of the early twentieth-century Catholic missionary François-Marie Savina, about the possibility of a distinctive non-Asian Hmong racial type. Like most of the Hmong Americans I have known, he recognized the story of a defeated Hmong king as a beacon for Hmong political ambitions stretching into the future. Resisting ethnological attempts—however friendly—to classify Hmong as a nonstate, upland “tribe,” Hmong Americans prefer to be imagined as subjects of a kingdom in almost perpetual exile. Hmong arrived in the northern mountains of what are now Laos, Thailand, and Vietnam less than two hundred years ago. Although Hmong Americans call Laos their homeland, they are aware of their status as pioneers in what is now Laotian territory. They were pioneers, and they were soldiers—as well as rebels. Through their participation in armies and rebel militias alike, they played with the possibilities of multiple sovereignty as a strategy for autonomy. Consider how historian Thongchai Winichakul explains multiple sovereignty before the enforcement of colonial standards in and around the kingdom of Siam: “Unlike the modern concept of a sovereign state, a tributary’s overt and formal submission did not prevent it from attempting to preserve its own autonomy or ‘independence,’ nor did the quest for autonomy prevent a state from submitting itself to more than one supreme power at any one time. Indeed, the practice of multiple submissions was often indispensable if the state was to save its ‘independence.’ . . . Such a tributary would be regarded by each overlord as its own possession.” “The situation of multiple sovereignty was common for the smaller kingdoms and tiny chiefdoms on all the frontiers of Siam.” Multiple forms of military participation—both for and against one or more states—offer one strategy for maintaining autonomy. The choice of allies is less important perhaps than the defense of room for maneuvering. In Chinese records, Hmong have figured strongly among rebels fighting imperial authority as well as among mercenaries to many causes, including the empire. In colonial Southeast Asia, Hmong continued to achieve military

Subcontracting Sovereignty

63

preeminence, both as colonial soldiers and as anticolonial rebels. In French Indochina, for example, Hmong leader Pa Chay Vue led the millennial antiFrench Guerre du Fou, the Madman’s War, between 1918 and 1921. Millennial leaders have been charismatic and active in consolidating Hmong ethnicity. Shong Lue Yang, a mid-twentieth-century millennial leader, composed a unique Hmong written language, which later inspired the Chao Fa anti-communist resistance that gathered fighters on an isolated mountain after the retreat of U.S. forces in 1975. Vang Pao himself had some features of a millennial leader. Here is how one of his CIA backers told journalists he performed: Vang Pao rode shotgun, his CIA man in the rear seat. Their singleengine plane, buffeted by strong crosswinds, aimed at a short dirt airstrip scratched into the face of a rocky northern Laotian mountain. To Vang Pao, the Hmong warrior, there was little to worry about—divine spirits controlled his fate. The plane landed near a village of about 300 people, defended by 60 men with old flintlock rifles, recalled Vinton Lawrence, the CIA operative. Pathet Lao Communists let loose almost immediately with gunfire and mortar. “Instead of cowering, Vang Pao was up, directing these poor people who hadn’t even been trained,” Lawrence said of that day in the early 1960s. “His reaction was extraordinary. He assumed he was not going to get shot. He just exuded bravery.” Vang Pao did not call himself a divine leader, nor is this the kind of story I ever heard from Hmong about the war. Instead, it is the kind of story CIA operatives had to tell themselves to explain what they were doing with Vang Pao and his bands of flintlock riflemen in early-1960s Laos. Vang Pao, fighting for the American cause, exuded supernatural bravery. As another CIA operative put it more succinctly, “Vang Pao’s a son of a bitch, but he’s our son of a bitch.” Vang Pao, or VP, as he was affectionately called by Hmong Americans, was trained by the French colonial military in Indochina and became an officer in the Royal Lao Army, from which position he was selected as the head of the CIA secret forces in Laos, charged with saving the country from communists. VP was effective because he was able to mobilize the Hmong as an ethnic group to take the war on their own shoulders. While some Hmong fought for the Pathet Lao, and some tried desperately to stay out of the conflict, across vast areas VP succeeded in making the American cause appear

64

War, Sovereignty, and Plural Citizenships

a Hmong cause. This enrollment of the whole populace still seems to me one of the great crimes of U.S. involvement in Indochina; upland peoples were mobilized to fight as whole ethnic groups—men, women, and children— through promises of ethnic empowerment, that is, subcontracted sovereignty. VP’s tactics are still much debated. Certainly, he influenced American bombing targets, and he controlled the delivery of American rice to villages unable to farm because of the bombing. Even supporters agree that he shot without process prisoners, dissenters, and those about whom he had suspicions. Critics argue that American transport consolidated his key role in the opium trade, which generated vast resources. VP was also able to draw upon the Hmong legacy of organizing fighting men. Leadership inspires Hmong military prowess, but so too does kinship. Patrilineal clan and lineage identifications bring Hmong men together in solidarity. The strength of patrilineal kinship sets Hmong off in sharp contrast with surrounding ethnic groups in Southeast Asia, many of whom practice flexible bilateral kinship. Patrilineal kin ties, enacted in courtship and marriage, in patterns of hospitality and settlement, in funeral ceremonies, ancestor rites, and in political affi liations, have been a powerful force for Hmong ethnic mobilization. The Hmong American organizations most able to bring out ethnic force are the area-specific councils of the eighteen clans. This work is for men, particularly fighting men. If Hmong Americans— like Patrick—have disproportionately joined the U.S. military, as some organizations claim, it is in continuation of a heritage of male military prowess for the cause of Hmong freedom.

Remembering Laos Patrick asked me to accompany him to his home in Fresno one spring break. He particularly wanted me to interview his father. Patrick explained that his father rarely spoke to him about his life. Instead, Patrick said, he sat silently for hours in front of the television watching videos of Laos with tears washing down his face. Patrick thought he would talk to me since I am a teacher and, to him, a representative of the United States. It was true. Patrick’s father, who speaks no English, welcomed me warmly and showed me his pictures of George W. Bush, who, he said, had helped Hmong Americans gain U.S. veteran’s rights. He was glad to participate in long life-history interviews because he wanted to tell me about the war in Laos, where he was a commander of men. Patrick translated.

Subcontracting Sovereignty

65

We did not prompt him. Prompts would not have been effective. Patrick’s father had a very specific, almost technical, story he wanted to tell us. It was a story about how carefully he had prepared for war and how much of his self he had put into it. But this care was not for himself. His life narration told a larger story in which the war experience was the Hmong experience. In this story, Hmong had mastered the challenges of war and given it their best efforts. They had measured and taken the risks. War had made them, and they were not about to forget it. In his boyhood, Patrick’s father learned hunting, he said, which trained him for the arts of war. “When I was a boy,” he explained, “I wanted a knife to go hunting. When I grew a little older, I wanted a bow and arrow, and then a single-shot rifle. Finally, I became a man, and I wanted an automatic rifle with which to fight.” The mastery of tools and terrain continued at the center of his experience of war. As a soldier, he left his village to live in a mountaintop military camp. The CIA strategy was to build military installations on the top of the steep karst mountains of central and eastern Laos, where the soldiers could peer across the surrounding valleys, ready to bomb anything that moved. Those mountaintops had once been infested by dangerous spirits, but American helicopters cleared them out as they cut down the forests. Hmong military camps sat, with American hardware, atop these mountains, and the job of the Hmong was to call in American bombers. If the planes were shot down, they were to save American pilots at all costs. Meanwhile, Pathet Lao guerrillas hid in the limestone caves underneath those sharp-sloped mountains. At night, the communists would silently climb the slopes to lob grenades at the CIA army. Patrick’s father explained how he came to know the grenades intimately. He described to us how he learned the difference between enemy grenades with three-second fuses—which were about to go off right away—and those with just slightly longer five-second fuses. When the five-second kind arrived, he and his men would pick them up and throw them back at the enemy. When I heard this, I felt sure he was getting the times wrong; how could you throw something back within five seconds? But what I have read confirms that five seconds is long enough to throw back a grenade—at least if you are utterly focused and determined. Skills of caution, patience, and trust were also key. When someone was shot, he explained, he had to wait patiently, sometimes all night, for his comrades to find him to bring him back to a place of safety. It took me a while to realize that this discussion, told with detail but offered as if general advice,

66

War, Sovereignty, and Plural Citizenships

referred to himself. He had been shot in the chest one night and had lain quietly in the brush until the next dawn when his men found him. He showed me the scar that remains on his chest from this incident. Patrick later adroitly diagnosed my confusion as an issue of pronouns. After a short first-person segment describing his boyhood, his father had quickly slipped into using first-person plural pronouns to tell his adult life, blurring the boundaries between his own story and the story of the Hmong people at war. Hmong Americans almost invariably call the enemy “Vietnamese,” as if the war was entirely an ethnic conflict. Only with reluctance do Hmong I know admit that many Laotians were communists, even though there is no love lost between Hmong and ethnic Lao. In part, I think, this is because many Hmong men were fighting for the Pathet Lao, putting those troops in a complicated relationship between friend and foe. Patrick’s father was once captured by the Pathet Lao, he explained. But he had a “brother”—a close cousin—in the Pathet Lao army, who arranged his quick escape. Hmong Americans declare their total submission to American overlords and their cause, but, in Laos, tactics of maneuvering within multiple sovereignties trumped full submission to any imperial ideology. If “Hmong means free,” as refugees in the United States proclaim, it is because of this legacy of maneuver. In breaks between talking, I looked at the portraits that surrounded us in the house, which showed the family in varied guises: Hmong traditional outfits, military uniforms, American graduation and wedding garb. Patrick’s grandfather and his brothers had been trained in the French colonial army; their fading sepia portrait in military dress, carried from Laos, took up the biggest frame. Beside them were more recent but stranger Fresno portraits. Camouflage-dressed men posed against a studio backdrop of the Laotian Plain of Jars, the site of so much American bombing. Patrick’s father appeared in one such studio portrait with a walkie-talkie next to his ear and his arm extended, pointing across the imagined plains, recalling the times he had called the bombers. The most bombed place in the world, I read somewhere, a hard record to keep. During my visit, Patrick’s father was also performing something, but I was not sure what. The fi rst day I was there he appeared in a traditional Hmong outfit, bright embroidery on black cotton. The second day he wore a Hawaiian shirt and slacks. The third day he donned his camouflage army uniform. Only then did I realize that he wanted me to photograph him and the family, and I began. Perhaps he was continuing his story of both loyalty and room for maneuver through these changes.

Subcontracting Sovereignty

67

One day, Patrick pushed too far. He asked his father why he just told stories of the technologies of war and never of his family. Didn’t he miss his many wives and children, waiting for him at home? Patrick’s father stopped talking and then started to cry. That was the end of our session. But it was time, anyway, for a much more public ceremony to begin. Patrick’s family had decided to sacrifice a bull for a ritual to heal a rift with a son-in-law’s family. We killed the bull early in the morning and spent most of the day butchering and cooking. By the afternoon, the house was packed with guests. In the kitchen and on the back porch, the cooking continued. In the living room, older female guests gossiped about which marriages were failing and which young people might be ready for matchmaking. Outside the men sat with the choice parts of roasting meat. I asked Patrick to translate. To my astonishment, the whole group was describing the specific events of a battle in the 1960s. On top of the hills were the Hmong units. In the valleys below were the despised “Vietnamese.” The men reconsidered the angles: Which hills were the most vulnerable to big guns fired from below? Which had a lip that might protect the Hmong combatants? They reconsidered the moment of political maneuvering: Who were the captains who gave the key orders? Where were the bombers? Where was Kong Le, the notorious and unpredictable “neutralist”? Every tactic and topographic feature was dissected, item by item. I had never witnessed such deeply focused intensity—and in consideration of a forty-year-old event. But Patrick explained that although the battles in question changed, they were always the conversation. The men never stopped remembering; it was the substance of their lives.

Necessary Betrayals The subcontracted sovereignty of proxy wars requires transactions based on warily calculated as well as oblivious misunderstandings. The U.S. government never intended to offer the Hmong a kingdom even if they won the war. Hmong soldiers never planned to become U.S. veterans. But CIA transactions with the Hmong were not just based on lies. The kind of colonial mimicry described by anthropologists Michael Taussig and Ganneth Obeyesekere was surely at work here: the colonial intruders, here the Americans, performed the savagery they attributed to natives. In turn, native middlemen mimicked the savagery of the new men in power. The most famous example is the CIA operative said to have inspired the film Apocalypse Now,

68

War, Sovereignty, and Plural Citizenships

who was known in Laos for rewarding soldiers who brought him human ears; when he found out that the children of his soldiers were missing their ears because of this policy, he required instead severed heads, which he collected and dropped on enemy villages. Perhaps the “contract” part of the subcontracted sovereignty of proxy wars is always of just this sort. Exaggerated performances of violence are exchanged across gulfs of incomprehension. Through this exchange of performances, permission to rule is offered and accepted, although interpreted by each side in its own way. Such multiply interpreted exchanges must always provoke feelings of betrayal on every side. Even the CIA agent I just mentioned is said to have left Laos in protest against Vang Pao’s use of the war to enrich himself through the opium trade. Another famous CIA handler received a hero’s funeral from Hmong in Montana, yet with the knowledge that other, rejected Hmong may have murdered him. It is possible that subcontracted sovereignty necessarily brings into being multiple instances of acutely felt betrayal. Just what kind of sovereignty is it anyway? How long is it supposed to last and under what circumstances? Who is in and who is out? Disagreements on these issues are inevitable, and charges of betrayal multiply. For the older generation of Hmong leaders in the United States, these are pressing issues. Without their subcontracted sovereignty, these elders are nothing. To hold on to positions of leadership, they must evoke the war. They must have a continuing cause. The existence of active Hmong rebels in the hills of contemporary Laos is necessary for the cause, and they are forever orga nizing to support those rebels, however tiny their spark. VP did a pretty good job of keeping the flame alight. The most important thing to hold on to was perhaps not even the once-and-future kingdom but instead the sense of betrayal itself. When the United States left Laos, the Hmong were betrayed. As long as Hmong Americans nurture that betrayal, the cause is safe. Subcontracted sovereignty remains, held in suspension by its betrayals. In the ebb and flow of American politics, betrayal spreads around. VP was in hot water with his own supporters some years ago for suggesting that it might be possible to cooperate with the government of Laos. Such talk was another betrayal. But his position of leadership was reconsolidated in 2007 when he was quite surprisingly arrested on federal charges of plotting to overthrow the Laotian government. Then the councils of the eighteen clans brought out the Hmong people to express their full support. Fresno City Council Member Blong Xiong explained the rapid mobilization: “It’s difficult for the mainstream community to realize that the Hmong community

Subcontracting Sovereignty

69

has the same reverence for the general as Americans have for George Washington or Thomas Jefferson.” Sovereignty indeed. The charges resulted from a sting operation in which a fake special-forces agent offered to sell a load of weapons to invade Laos. VP himself seems mainly to have stroked and admired the weapons the agent showed him. The charges seemed particularly awkward in the context of the U.S. preemptive invasion of Iraq: under what circumstances do you get to invade a country? Meanwhile, Vang Pao had friends in high places, many still regretting U.S. withdrawal from Indochina. One former CIA handler admitted with nostalgia, “We taught him how to do these things . . . that he and his troops are now charged with.” Not all Hmong have agreed with VP’s leadership. During the heady months following VP’s arrest, dissenters were branded as betrayers. Yang Dao, a Minnesota retired scholar and once a close ally, counseled calm; he was slandered all over the Internet as “actually a Vietnamese” in Hmong garb. Hmong Americans came out in great numbers to support the general. The mad scramble to get on the Fresno buses for demonstrations in Sacramento reminded some of the last U.S. planes to leave Laos: everyone wanted to get on. Amazingly, everyone wore white shirts, as the councils of the eighteen clans had decided. White stands for the “good guys” in America, they said. Only bad guys wear dark colors here. Signs were also centrally coordinated. It is hard to think of other U.S. demonstrations in which such discipline held. To me, it suggests how seriously Hmong Americans take their double citizenship: Hmong as well as American. For many it is truly a “double-or-nothing” strategy: without Hmong political community, they would disappear through the cracks in U.S. public space and be left with nothing. In September 2009, the charges were dropped. The federal prosecutor said that in dropping charges, he had considered the defendant’s history as well as the consequences of a conviction. “He’s viewed as a quasi-martyr,” said Phillip Smith, executive director of the Center for Public Policy Analysis in Washington and Vang Pao’s friend. “If these charges had remained, the government would have been putting itself on trial for betraying the Hmong.”

War Stories As part of my research on commercial wild-mushroom collectors in the forests of the U.S. Pacific Northwest, I conducted nighttime interviews with

70

War, Sovereignty, and Plural Citizenships

about a dozen Hmong collectors. I also interviewed a similar number of Khmer, ethnic Lao, and Iu Mien pickers, as well as white veterans of the U.S.-Indochina War. The Hmong interviews stood out starkly. All of the pickers had war stories to tell, but only the Hmong launched into them with the confidently scripted determination to draw me into their history. Whereas many of the others spoke of wanting to overcome or forget the terrible tragedies of war, Hmong pickers were explicit about wanting to remember. Mushroom picking in the Oregon hills was for them one way to remember jungle fighting in Laos. While many Hmong helped me learn about forest foraging during my days of participant observation in the field, in the interviews I conducted at night, they did not have much to say about mushrooms—or, indeed, about life in the United States. They wanted to talk about Laos. The questions I had prepared about seasonal livelihood strategies had to be abandoned. Before I had a chance to speak, my Hmong informants launched into their stories, and they did not stop until everyone, including my Hmong assistant, was so emotionally drained that we had to call it a night. And while a number took the same path as Patrick’s father, telling me of the survival technologies of the CIA war, many others talked mainly about what happened after 1975 when the United States withdrew. When U.S. forces left Indochina in 1975, Vang Pao and his top officers flew to safety in exile. The rest of the Hmong troops were left to decide what to do on their own. A panic ensued. Some returned to civilian life in rural Laos. But some ran to the inaccessible jungle area around Phou Bia Mountain, where the Hmong millennial Chao Fa movement had earlier established a base. Phou Bia became the core area for continuing Hmong armed rebellion against the state. Others ran to the Mekong River and crossed to Thailand and the U.N.-sponsored refugee camps that sprouted up within a few years near the border. Vang Pao’s influence created a special camp for Hmong refugees. After the U.S. Refugee Act of 1980, an increasing stream of Hmong refugees moved to the United States. One might think that the choice for one of these routes precluded the others, but, in fact, there has been a great deal of movement back and forth across them, and most of the stories the mushroom pickers wanted to tell me were about the trauma and danger of that movement. Farmers joined the rebels; rebels became refugees; refugees returned as rebels. The border between Laos and Thailand remained active—and is probably still active with potential Hmong refugees. Refugees in Thailand went back to Laos all the time, urging Hmong still in Laos to leave their lives as farmers to become

Subcontracting Sovereignty

71

rebels or refugees. Even after the United States began to welcome Hmong refugees, many refused to leave the camps because of this back-and-forth access with its political possibilities. One husband and wife explained that they were living an ordinary life in rural Laos in the late 1970s when they decided to take off into the jungle to join the Chao Fa rebels on Phou Bia Mountain. They left all their property— the husband had been a comparatively well-off village head—bringing their children with only the clothes on their backs. For several years after, they experienced great privation. They did not farm, and, when they could not get food from nearby villages, they were forced to eat foraged forest foods, such as wild yams. Their group was poorly armed and always in danger. There was a good deal of sickness, and everyone was hungry. The only way I could imagine what they were describing was through the literature on millennial movements in Southeast Asia, which tells of people leaving their farms to live on nothing in the wilderness while waiting for the new era. Outsiders tend to call Chao Fa a millennial movement; the journalist most sympathetic to the Hmong cause labels them “mystical warriors.” But the husband I interviewed explained their acts within a framework of revenge: “When a man’s father is killed and he becomes a bandit in the jungle, that is Chao Fa,” he explained. The wife explained her state of shock after the death of the family dog at the hands of Vietnamese soldiers. The soldiers ate the dog. After that, she explained, she could not stand to live at home and wanted to run away. By the end of her story, we were all crying. Most of the Hmong I spoke with told of going back and forth between Thailand and Laos after they had entered the refugee camps. Some of the crossings were facilitated by state actors. In one of the more bizarre incidents of the resistance, China decided to train and support Hmong rebels as long as they were willing to aim their attacks against Vietnam. One of my mushroom pickers told me about riding in official Thai buses to the Chinese training camps—and back to the refugee camps. But most of the crossings were informal and unprotected. One man took his pregnant wife on one of his forays into Laos. She started having labor pains soon after they crossed the Mekong, and he was forced to take her back to the Thai side of the river. Much of the back and forth was related to the rebellion. Money and weapons for the Hmong struggle came through the refugee camps and were brought by registered refugees back into Laos. Other forays were to collect or mobilize relatives. Yet every time one crossed the Mekong, there was great danger. The river was deep and swift; soldiers were posted on both sides to stop crossings. Many Hmong used bamboo poles under their arms, or air-fi lled

72

War, Sovereignty, and Plural Citizenships

water jugs, or tires as ballast for the crossing. Some were shot. Some drowned. Most everyone I spoke with had a story of being the amazed exception when death was all around. For Christian Hmong, there was an explanation: God had saved them. Soldiers pointed straight at them, but God made them invisible. They lost their families in the forest, but God brought them back together. Thomas Pearson writes about similar stories he heard from Christian Montagnard refugees from central Vietnam. What surprised him was how these stories refused the conversion tropes that American missionaries had worked so hard to induce in the mountain people. Instead of God saving them from personal sin, God saved the Montagnard from inevitable death. God worked rather like a spirit amulet, Pearson observes, except that He was more powerful than the other, older spirits. In the Christian Hmong stories I heard, God had a similar role. But as in American Christian conversion stories, telling these stories of fear, pain, and unlikely survival had a message—a message for me. Like a sinner running from conversion, I tried very hard to escape it, but eventually I could not. One evening stands out in my memory. In the fall 2007 mushroom season, I made an appointment with a very serious mushroom picker, one of the best. I was hoping to hear about how he had developed his foraging skills, but I never got to ask a single question. He took control right away by challenging my right to listen: was I any part Vietnamese? If so, he would not tell the story, because Vietnamese are all communists. (I told him my mother is Chinese, which somehow miraculously passed his communism test.) When he began then, it was with deliberate slowness, opening with one of his first memories: going up the hill at the edge of the village every day with his mother. She would gaze over the hill and cry. Then they would walk back. That was the hill his two brothers had crossed when they went to war. They never came back. This story was of course just the beginning. Filling in for his brothers, he went over that hill himself to join the war. After 1975, he went back and forth between Laos and Thailand, continuing to fight but with many personal losses. As I listened, I hoped I had hardened myself to hearing about such losses. When in his story he got to the United States, I thought I might survive the narration intact. But he brought me up short in a direct confrontation when he explained that he had now sent his sons to Iraq. Why, he wanted to know: why should he sacrifice and sacrifice for me—a born and bred citizen of the United States? I had no answer. I understood then that all the stories I had heard of the terrors and turbulence after 1975 were intended to teach me the meaning of betrayal, as

Subcontracting Sovereignty

73

well as to affirm the steadfast principles of double-or-nothing citizenship. Betrayal and double-or-nothing citizenship: both are central to the subcontracted sovereignty of the survivors of proxy war. I too bore the burden of witnessing. Such rhetorical strategies have had considerable success, even in the highest realms of international politics. During the Reagan administration, Hmong refugees were key figures in shaping anti-Soviet charges of chemical and biological warfare, which then allowed U.S. chemical and biological warfare preparation to reopen. The refugees had described their persecution by poisonous colored vapors that came to be called “yellow rain.” Like a combination of the United States’ napalm and Agent Orange, the airborne poisons both burned and deformed all future growth. The sample tested in the United States turned out to be pollen from bees’ cleansing flights. But the stories have kept coming and coming. In 2008, for example, a surprised British reporter for Al Jazeera visited the remnant Chao Fa rebels on Phou Bia Mountain; in the video he made of the visit, men, women, and children bow down on their knees, calling him “father,” and cry, pray, and beg most piteously for his help in their time of fear and suffering. These stories are not just for outsiders. Hmong mobilize each other through these stories. If “saying is believing,” Hmong also mobilize themselves, each individually as members of a political community, a sovereign “we.” Patrick told me that in the Fresno town-hall meetings held to gather support for VP after he was charged, leaders told stories of the terror times and showed films of the continuing suffering of rebels in Laos. Members of the audience started to cry. Only then was the meeting ready to gather itself for political action. The effectiveness of such stories can be further seen in the recruitment of the younger generation, born in Thailand or the United States and unfamiliar with flights through the jungle. The young people have picked up the stories and embellished them with rhetoric of “genocide,” “justice,” and even “peace.” Inflected with these surprisingly leftist ways of seeing, the stories with their promises of subcontracted sovereignty continue. The war experiences of a new generation of Hmong in the U.S. military promise to keep the stories of fear, loss, and betrayal flowing into the future. These stories cannot but move and haunt me. They seep into my dreams at night. They drag ugly parallels with other proxy wars into my consciousness. They threaten, even here, to flood this chapter with too much unaccounted terror. And so I retreat to the safety of the chanted numbers with which I began. One: Hmong exemplify the pleasures and dangers of proxy war, with its subcontracted sovereignty. Two: Hmong Americans continually

74

War, Sovereignty, and Plural Citizenships

call up the experiences of war as a way of mobilizing a political community with the feel of sovereignty. Their stories are powerful calls to return “freedom” to the Hmong in rightful exchange for so much injury and death. Three: This dearly bought freedom requires a delicate dance of loyalty, simultaneously grasping and disavowing multiple sovereignty and citizenship. What I have called double-or-nothing citizenship informs the strategies not just of leaders but also of ordinary Hmong Americans who feel the need to be Hmong and free—yet simultaneously under American protection. Four: To dance across overlapping and unreliable citizenships, Hmong Americans learn to tell stories full of the fear and pathos of survival. The teller, the “I” of the story, must speak for many. Hmong public discourse creates and recreates multiple sovereignty through its rhetorical forms.

Chapter 4

In Conflict Sovereignty, Identity, Counterinsurgency NASSER HUSSAIN

W

hat is the place of an essay on counterinsurgency in a volume on sovereignty and multiple citizenships? The question seems an apt one to begin with, for it could be argued that counterinsurgency is a strategy of war—increasingly the preferred strategy of the war on terror, from the 2007 Iraq surge to the 2009 revision of Afghanistan policy. And, as with all military strategies, counterinsurgency implicates the question of the political only indirectly. I will suggest, however, that counterinsurgency is a rich resource for theorizing not just conflicts but the concept of the political itself. The central task of all counterinsurgency is identifying and isolating insurgents from the neutral population—the so-called clearing process. The methods by which this process is accomplished change—from the crude cordon tactics of imperial policing to the use of “social network analysis” by U.S. forces in Iraq—but, more often than not, counterinsurgency collapses markers of legality with markers of race and ethnicity. Counterinsurgency, as I show in detail later with reference to Iraq, defines and mobilizes groups for its purposes and in doing so creates a complex matrix of identities, with significant implications for governance. After the physical separation of insurgents and “neutrals” is accomplished, counterinsurgency invokes the full range of sovereign power, the power to kill and the power to foster life, by emphasizing the provision of medical, economic, and educational ser vices (winning hearts and minds) alongside the imperatives of combat (killing insurgents).

76

War, Sovereignty, and Plural Citizenships

In the sections that follow, I begin by introducing counterinsurgency as a discourse of sovereignty and a discourse of empire, focusing on the production and contents of the new U.S. Army/Marine Corps Counterinsurgency Field Manual (CFM). I then turn to a specific illustration of these themes by constructing a genealogy of clearing operations that stretches from British colonial practices to the 2007 Iraq surge. Clearing operations are by their nature an intricate combination of policing power, identity claims, and spatial logic. They thus combine, to borrow from Michel Foucault’s lecture series, sovereignty, territory, and population.

Counterinsurgency is once again in political and intellectual fashion. After its heyday in the 1950s and 1960s, as the imperial counter to wars of national liberation or to communist revolutions, or both, counterinsurgency was largely relegated to military history. But with the emphasis on counterinsurgency tactics under General David Petraeus’s command during the 2007 Iraq surge and with the revision of the Afghanistan war policy in 2009, with the publication of new books, and with counterinsurgency specialists concentrating in a new think tank—the Center for New American Security— that has considerable influence in the Obama administration, counterinsurgency has returned to the fore. Nothing embodies the fortunes of counterinsurgency better than the 2006 counterinsurgency manual for the U.S. Army and Marine Corps. General Petraeus, who had just returned from Iraq where the Americans were floundering in the face of a growing insurgency, was the impetus for the project. Part of the problem, as Petraeus notes in his foreword to the CFM, was that it had been twenty years since the army had produced a counterinsurgency manual, a doctrinal and instructional vacuum with direct and serious consequences for Iraq. This time lapse had everything to do, of course, with Vietnam. As one U.S. Army general succinctly put it, “After the Vietnam War, we purged ourselves of everything that had to do with irregular warfare or insurgency, because it had to do with how we lost the war.” How the CFM was produced is at least as noteworthy as its content. After Petraeus’s return from Iraq, he was sent to Fort Leavenworth, Kansas, to oversee the army’s training and development of doctrine. The CFM was conceived at a conference held at Fort Leavenworth in February 2006, which brought together experts in irregular war, Central Intelligence Agency and State Department representatives, “high-profi le” journalists, and even some human-rights advocates. After the conference, a number of different people

In Conflict

77

apparently worked round the clock on the new manual, including John Nagl, author of the influential 2002 book Learning to Eat Soup with a Knife: Counterinsurgency Lessons from Malaya and Vietnam and one of the more vocal media proponents of the new approach following the release of the CFM in December 2006. Critics of the CFM have, with some justification, faulted the whole process as a “well-orchestrated publicity campaign” designed to soothe American qualms over an increasingly bloody war, with exposés of torture (Abu Ghraib) and massacre (Haditha) by U.S. troops. The new approach of counterinsurgency promised a more culturally sensitive, intellectual approach but also one more likely to deliver “victory.” Regardless of the intentions of the press or the military, the CFM has since its release acquired an almost iconic status. While the CFM has been called innovative, even radical, those adjectives more accurately apply not to its role in military strategy—it openly claims the influence of earlier theories—but to the new direction it advocates for the U.S. military in the Iraq and Afghanistan conflicts. Contrary to the Donald Rumsfeld–favored blitzkrieg approach of shock and awe, the new approach requires long and patient engagement at every level. Drawing on the tactics of colonial policing as well as a joint and comprehensive civil-military approach, the CFM set a new course for U.S. military policy by harkening back to some quite old ideas. The presence of ideas from colonial theorists, such as the veteran of the French Algerian War, David Galula, and reference to the historical, such as the British counterinsurgency in Malaya, permeate the new doctrine. In the shift in U.S. policy from a conventional to a counterinsurgency approach, the defining element is the new focus on population. As its proponents repeatedly insist, counterinsurgency is population-centric rather than enemy-centric. That is to say, unlike conventional warfare, where the objective is destroying the enemy by killing its soldiers, in counterinsurgency, the objective is to isolate the population from the insurgents and to provide immediate security to the population and secure its enduring loyalty—or, in the jargon of the theory, to “clear-hold-build” (CFM 5–51). In the CFM, this approach is best captured in the section on “Paradoxes”: for example, “Sometimes the more you protect your force, the less secure you may be” (1–149), and “sometimes doing nothing is the best approach” (1–152). Of course, in the context of counterinsurgency, this advice is sound. If the object is to win over the population, any strong use of firepower may do more harm than good in the long term, alienating civilians and even pushing them toward insurgents.

78

War, Sovereignty, and Plural Citizenships

Despite this emphasis on governance and culture and despite the claim that in the end the “decisive battle” is for “people’s minds” (1–153), counterinsurgency still relies on what the army calls kinetic operations (bombs, bullets, and killings). The CFM pointedly reminds its readers that counterinsurgency is not “peacekeeping,” which is marked by an absence of combat and where the prevention of violence is the key goal (1–107). By contrast, in counterinsurgency, not only will “killing insurgents” be necessary, but such action is all the more necessary in the case of “extremists” (1–14). And if we step out of the theoretical confines of the CFM, historical cases of counterinsurgency offer numerous instances, from Algeria to Vietnam, where the kinetic element escalated (or degenerated) into torture and indiscriminate aerial bombings. Counterinsurgency then is still a war, and, therefore, the use of lethal force is unsurprising. What is more difficult to parse out is the relation between combat and policing, or what the CFM calls “warfighting and policing” (7–27). In the CFM’s scheme, warfighting and policing, the establishment of civil security and its maintenance, are not only linked but also alternate: “The counterinsurgency environment frequently and rapidly shifts from warfighting to policing and back again” (7–27). How are these alternating modes of force on the same terrain to be reconciled? How should we read the counterinsurgency theory of tempering of bombs and bullets with winning hearts and minds? In attempting to parse out the various dimensions of counterinsurgency— military, civil, political—the 1971 essay on the subject by Eqbal Ahmad, a political theorist, is indispensable. While Ahmad, a witness to the Algerian War and an acquaintance of Frantz Fanon, writes from the radical anticolonial sensibility of a particular time, “Counterinsurgency” is an essay of razorsharp distinctions and remains a diagnostic masterpiece. Ahmad analytically divides counterinsurgency into two ancillary approaches: the “conventional,” with its emphasis on a “military-punitive” mode; and the “liberal-reformist,” with its emphasis on a “technological-attritive” mode. The first concentrates on air power and bases but also on special forces and “small unit deployments,” all considered vital to the conduct of irregular war. The second, emerging out of long-standing traditions of “pacification,” focuses on putatively innovative schemes of policing, such as “community defense,” and the supply of essential state ser vices. The liberal-reformist approach to counterinsurgency usually appears as a corrective to the military-conventional approach. Its proponents recommend greater attention to politics, ideology, and culture. Current theorists are frequently reminding their audiences that counterinsurgency is, as Galula

In Conflict

79

once remarked, 80 percent political and 20 percent military. But what counts as the political in this context? Ahmad argues that while this strain of counterinsurgency tries to mimic and preempt key elements of insurgency, from the ideological cause to the primacy of political persuasion and loyalty, it inevitably reduces these thick conditions to administrative questions: “the liberalreformists treat counterinsurgency as an administrative problem subject to managerial and technical solutions.” Taking a cue from Ahmad, it is vital to appreciate how these two approaches come together in the central tactical and political concern (in the end, they are the same) of counterinsurgency: the effort to separate and isolate the neutral population from the insurgents. One of the defining conditions of counterinsurgency is the inability to distinguish between insurgents and neutrals within the same population. Absent the insignia of national armies or the distinct racial or national adversary of a sovereign war, counterinsurgency relies on an elaborate mixture of policing, intelligence, and straightforward combat to distinguish between insurgents and the neutral population. In the imagination of counterinsurgency, these activities are intertwined with the efforts at winning over the neutral population and killing insurgents. Where both approaches combine for Ahmad is in their desire to effect a “total control over the population.” Such control, I argue, is imagined and exercised through policing in the broadest possible sense of the term. Indeed, both classical counterinsurgency theory and Ahmad himself anticipate Foucault’s emphasis on policing and governmentality as the signal modes of modern political rationality. Counterinsurgency, then, is a discourse of sovereignty. But given its long-standing association with colonial rule, a history the CFM acknowledges and adapts, it is also crucially a discourse of empire. The CFM is the latest installment in a long line of such treatises and guides. Although counterinsurgency as a tactic has been deployed in different conflicts and in diverse contexts, there are only a handful of authors and texts that make up what we may call the canon of counterinsurgency writing. The first of these is C. E. Callwell’s Small Wars, a monumental study of the persistent and widespread imperial “expeditions” in new imperial territories or in rebellious older ones, which incredibly could be found somewhere in every year of Queen Victoria’s long reign. A commissioned officer of the Royal Artillery, Major Callwell fought in the Afghan War of 1880 and in the first Boer war the next year. From 1886 onward, he served in the intelligence branch of the British War Office, making him one of the earlier soldier-bureaucrat-spy combinations that have come to dominate irregular war. Small Wars has a dated and

80

War, Sovereignty, and Plural Citizenships

anachronistic quality to it, with a Victorian racist idiom of “expeditions against savages and semi-civilized races.” In fact, even by the end of World War I, some of its recommendations had become obsolete, and the enigmatic T. E. Lawrence had eclipsed Callwell. Even so, Small Wars retains the distinction of precisely identifying and defining the key element of irregular war, which remains central to any modern understanding of counterinsurgency: “campaigns undertaken to suppress rebellions and guerrilla warfare in all parts of the world where orga nized armies are struggling against opponents who will not meet them in the open field.” If the high noon of Victorian imperialism marks the beginning of the effort to understand systematically the nature of irregular warfare, then it is in the sunset of empire that counterinsurgency comes into its own as a discipline. The response to nationalist struggles from Algeria to Indochina (against the French) and from Kenya to Malaya (against the British) produced what have come to be regarded as the classics of counterinsurgency studies. Incredibly enough, despite the global scope of counterinsurgency in the 1950s and 1960s, only a handful of authors make up the canon of classic counterinsurgency: Roger Trinquier, David Galula, Robert Thompson, and Frank Kitson. An officer in the French colonial infantry, Trinquier served in Indochina and the French concession in Shanghai before World War II and in Algeria after it. He published Modern Warfare: A French View of Counterinsurgency in 1964. In that same year, David Galula, a Frenchman raised in Casablanca and assigned to campaigns in Indochina and Algeria, published Counterinsurgency Warfare: Theory and Practice. Fresh from the disastrous loss for the French in the Algerian War, Galula spent a year on a fellowship at Harvard University, reflecting on the lessons of “revolutionary war.” At the same time that the French were fighting in Algeria, the British were facing their own insurgency halfway around the world in Malaya. A key figure in the British administration in Malaya during the time (and later an adviser to the U.S. government on Vietnam), Robert Thompson went on to write Defeating Communist Insurgency in 1966. Unlike the bureaucrat Thompson, Frank Kitson was an officer in the British Army who fought in Malaya as well as Northern Ireland. His Low Intensity Operations, published in 1971, reiterated many of Thompson’s ideas but with an additional emphasis on the use of propaganda or, as it is now called, “information operations.” While the CFM recommends all of these works in its annotated bibliography, it reserves a special acknowledgment up-front for Thompson and Galula. Even a cursory review reveals that not only does contemporary counterinsurgency belong to a distinct canon and to a distinct history but also that

In Conflict

81

this history is resolutely colonial. Such an insight into the genealogy of counterinsurgency immediately raises two related questions: how old or new are the suggestions of contemporary counterinsurgency, and can the theory be separated from its colonial roots? It is worth remembering that such classics as Galula’s book, much admired among the coterie of counterinsurgency enthusiasts, detail lessons of a lost campaign. In fact, almost every foreign effort to defeat a nationalist insurgency in the twentieth century was a failure: Algeria and Vietnam have become almost one-name shorthands for this inescapable conclusion. Proponents of counterinsurgency would doubtless offer the rejoinder that such a comparison is inapt since U.S. forces in Iraq and Afghanistan have from the beginning sought to find and work with national leaders. While the CFM contains an entire section on “Developing Host-Nation Security Forces” (6), what is less clear is how it understands the status of the “host-nation,” the status of outside forces, and the relation between the two (the term host-nation is itself an odd one, suggesting that U.S. forces in Iraq, for instance, are guests). The CFM notes that the “host-nation” is ideally an “indigenous” government but quickly adds, probably because insurgents have an equal claim to indigeneity, that it must also be a legitimate government. In order to be legitimate, the government must provide essential services and security to the population. And in providing such ser vices, outside forces—either “occupying” forces (the CFM places the word in inverted commas) or a “multinational counterinsurgency effort”—can help. Counterinsurgency in this scheme is the alignment of global forces and values. This implicit connection between globalization, universal values, and counterinsurgency in the CFM becomes explicit in the work of David Kilcullen (one of the experts whose work was used by the CFM and who later was appointed special adviser to General Petraeus in Iraq). Kilcullen suggests that the “war on terrorism” is best understood as “an extremely large-scale, transnational globalized insurgency, rather than as a traditional terrorism problem.” At first glance, Kilcullen’s claim seems incomprehensible. If insurgency is defined, as it is by the CFM, as “an organized movement aimed at the overthrow of a constituted government” (1–2), then, unless there is a world government, a global insurgency is a definitional impossibility. What Kilcullen has in mind, however, is not governments or even territories but rather a global clash of values—or, more precisely, a clash between the “civilized world” (values) and “extremism” (non-values). A global counterinsurgency’s focus then would be “protecting the world’s Muslim population from AQ (al-Qaeda) intimidation.”

82

War, Sovereignty, and Plural Citizenships

Although Kilcullen is no crude neo-conservative—he believes the Iraq war was a mistake, as is the action of collecting very different conflicts under the generic banner of the war on terrorism—it is telling how quickly he converts specific conflicts into a global clash of values. Such an analysis, despite its call to understand the primacy of politics in conflicts, evacuates any political meaning (which does not even have to mean legitimate claims but simply a recognition of groups as political actors in a dynamic environment) from either terrorism or the “world’s Muslim population,” who are cast as mute bystanders in a struggle for their sympathies. As Greg Feldman has astutely noted of the CFM—and, we may add, of counterinsurgency theorists in general—“like colonialism, the Counterinsurgency Field Manual also assumes that those who resist it stand outside history and are impervious to change rather than thoroughly engaged in the contingencies of global politics.”

In this final section, I offer an illustration of the claims of counterinsurgency as a particular discourse of sovereignty and identity, as well as trace the effects of a colonial legacy, by turning to the operational mechanics of counterinsurgency and, in particular, to the initial stages of its three-part strategy of clear-hold-build. Efforts to isolate populations from the presence and influence of insurgents, or clearing operations as they are commonly referred to, not only give counterinsurgency doctrine its distinctive character, distinguishing it sharply from conventional war, but also, I argue, can have significant implications for the shape of the post-conflict polity. From their very beginning, clearing operations embody a spatial logic combined with a particular vision of how groups exist and operate in society. These operations call for the management of the population through policing. The CFM proclaims its intellectual indebtedness on issues of clearing to a longer tradition of a hybrid war known as imperial policing, as well as to the writings of Galula and Thompson. Here I construct a genealogy from the manuals and practices of the 1930s to the classic counterinsurgency phase of the 1950s and 1960s, culminating finally in the ideas of the current CFM and their deployment in the field during the 2007 Iraq surge. The title of Major General Sir Charles Gwynn’s 1934 book, Imperial Policing, immediately summons a question: what is the difference between imperial policing and the policing of, say, London? The answer, we quickly learn, resides in the imprecise yet vital area of Gwynn’s concerns: “the police duties of the army.” Gwynn divides the occasions in which such duties will

In Conflict

83

be exercised into three categories: first, small wars, in which policing comes closest to outright combat and the objective of the army is to prepare the area for the establishment of civil authority; second, conditions where the army becomes the main agent for the restoration of order; and, third, situations where the army is employed as an aid to civil power. For Gwynn, in the twentieth century, armies are no longer much needed for small wars, with the major conquests of empire already completed; but armies are frequently needed for the second category. This necessity is, as Gwynn tells us, because “the civil control which has been established still rests on insecure foundations.” In focusing on this second category, however, Gwynn introduces one of the more abiding definitional conditions of all modern insurgencies and the novel response they demand. The circumstances of armed rebellion pose “a very different military problem,” Gwynn tells us, since they involve indefinite objectives as well as a manner of policing and combat that responds to the reality of “the admixture of rebels with a neutral or loyal element of the population.” At the close of the nineteenth century, Callwell detected a common feature of small wars, which would become an essential condition of what counts as an insurgency—the refusal of those fighting the state “to meet in the open.” A generation later Gwynn completes the definition by adding a crucial element common to all such situations—the impossible mixture in the same population, and, as we shall see later, sometimes over time even in the same person, of resistance, neutrality, or support. A feature common to counterinsurgency theory then and now is the emphasis on controlling the population, separating out those who may be neutral from the insurgents. How this separation is to be achieved, especially in the initial stages, is a question that produces interesting and sometimes disturbing answers. Gwynn was not the only one concerned with identifying and regulating this mobile category. In the same year as the publication of Imperial Policing, the British War Office issued a manual for soldiers entitled Notes on Imperial Policing 1934. The small manual was one of the first efforts to consider systematically the “hybrid condition of civil disorder/guerrilla warfare that would eventually be called insurgency.” It outlined procedures of cordon and search that would become known as clearing operations in later counterinsurgency doctrine, procedures first put into practice in 1936, only a couple of years after the manual’s 1934 publication during the Arab Revolt in Palestine. It is, however, in the manual’s detailed exposition of how to physically separate “dissidents” from “neutrals” that we find the initial articulation of

84

War, Sovereignty, and Plural Citizenships

what will become the hallmark of counterinsurgency operations. What is immediately striking about the strategies outlined in the manual is their deeply spatial character. Notes on Imperial Policing offers instructions for an elaborate mapping of resistance and control. First, an area of operations must be identified and delimited; then that area must be “organized” by further subdividing it, with “each sub-area under a subordinate commander.” At the center of the concentric layout is the cordon. There are, we learn, two types of cordons: the first is the more familiar urban enclosure of a town neighborhood or block constructed through a combination of a “chain of posts” or a constantly controlled perimeter, or both; and the second, the “country cordon,” is created by extending the perimeter into an enclosure or impasse, such as a river or a mountain, in order “either to restrict movement across a certain line or to prevent exit from an area.” Subsequent iterations of the manual only further elaborate and refine this focus on enclosures and the control of movement. Imperial Policing and Duties in Aid of the Civil Power 1949, for instance, introduces us to the now familiar phenomenon of checkpoints and roadblocks. By 1949, the manual recognizes the existence of new pressures and constraints. Unlike the more local disturbances described in the first manual, Imperial Policing 1949 asks military commanders to pay closer attention to the “outside influence” on a local disturbance, most notably, “communism (including the Cominform), racial and religious links.” Such a global awareness is matched by a new attention to international law. Noting that international law forbids collective punishments (but the “imposition of a Controlled area and the consequent isolation of large sections of the population undoubtedly infl icts hardship of a collective type; but this is inevitable”), the manual instructs officers to explain to the community that the cordon and control measures exist “to root out the bad elements and not to punish the population as a whole.” Even as it disavows any intention contrary to international law, the manual reveals awareness that the policing and punitive aspects of counterinsurgency cannot be easily separated. It is, however, in its elaboration of the search procedures first outlined in the 1934 manual that Imperial Policing 1949 develops and extends the central preoccupations of imperial policing. Now search procedures are not only focused on the home or neighborhood but on entire sections of the population. This wider focus requires a new technology of screening, achieved in the manual through something called the cage. The term is actually a misleading one since the cage is not as its name suggests a single box but rather a multi-part camp. It involves large cordoned-off areas for unscreened men

In Conflict

85

and women, with both areas feeding into a screening tent, which in turn leads out to two separate camps, one for screened men and women and the other for “wanted persons.” It would be a mistake to view these procedures as simply surveillance mechanisms. First, the process that “cordon and control” initiates can have a disquieting conclusion. In Notes on Imperial Policing 1934, the section on cordon procedures is followed on the very next page by mention of recourse to a more permanent cordon: “In the case of extended operations, it may be necessary to establish cordons of a more permanent nature, when the system of block houses and wire used during the later stages of the campaign in South Africa will usually be found suitable.” In practice, in 1936 in Palestine, the cordon procedures very quickly graduated from the enclosure of various urban centers to a clearing operation in Jaffa in June 1936, where the “problem” of the tangle of narrow streets and interconnected buildings was resolved by the wholesale demolition of neighborhoods. This destruction created two motorways through the old city on a north-south and east-west axis—a literal clearing that Charles Townshend has accurately described as a “drastic display of military environmental logic.” Reading the cordon procedures, one is left with the impression that they are not just descriptions of a policing of increasing intensity but also part of an inexorable logic of enclosure, organization, and control. Second, as procedures of separation and segregation, cordon and control, become ever more elaborate in imperial policing, they tend to eclipse a more basic question: who or what is being separated and removed? The obvious answer is, of course, that insurgents are being separated from loyal or neutral individuals. But, since there is no visible marking to denote an individual’s subversion or loyalty, imperial policing becomes a task of subdividing populations and separating groups. And as with so much British colonial policy, such divisions and identities are most often taken to be tribal, ethnic, sectarian, or religious. The coincidence, then, between the prescriptive procedures of imperial policing and the racial and ethno-sectarian segregation they produce in practice is a deep one. It is little wonder that later manuals, such as Internal Security Duties 1947, actually group types of insurgencies by the degree to which a colony has a “homogenous population” versus “a colony or territory where the reverse is the case and the population is divided into groups or factions.” After the end of many of the nationalist insurgencies of the twentieth century—Algeria, Kenya, Indochina, Malaya—colonial theorists were to gather these on-the-ground insights, synthesizing them into sets of

86

War, Sovereignty, and Plural Citizenships

instructions. Galula, the patron saint of so much contemporary counterinsurgency theory, follows up his “first law” of counterinsurgency—the population, rather than taking territory or killing enemy commanders, is the objective of the counterinsurgent—with a clear instruction: “to isolate the population as much as possible, by physical means from the guerrillas.” Accordingly, he recommends sweeps of areas, a census followed up by registration, identity cards and passbooks, curfews, and even forcible resettlement. Drawing on these influences, the CFM duly recommends “taking a census as soon as possible” (Table 5–2). “Census” is perhaps too gentle a term for the rigorous process that actually transpires: so-called saturation patrolling of neighborhoods with house-to-house searches combined with the most advanced biometric registration, including retinal scans, of members of the household. All the data are collected for the specific area of operations and uploaded to the U.S. Department of Defense Biometrics Fusion Center in West Virginia to create a vast classified database as of 2008 of 2.2 million people. The biometric data is then used to enforce population-control measures that include strict restrictions on movement between neighborhoods, with checkpoints and a pass system to enforce compliance (CFM 5–173). Census taking, however, is only the beginning of what the CFM recommends as techniques to comprehend the “social terrain.” The manual instructs commanders to use “social network analysis” to develop a layered description of the area of operation. This process entails multiple mappings and matrices, such as generating a “Population Support Overlay”—a graph of areas where the population supports, remains neutral, or opposes the counterinsurgency—alongside “Religion, Race and Ethnicity” overlays, which the CFM tells us may be combined in a super overlay, a near geological strata of anthropological and political markers (Appendix B-20 and B-21). The problem that the CFM does not acknowledge is that these indices of support or neutrality, ethnicity and religion, are neither static nor self-evident, and, given the historical complicity we have already noted between counterinsurgency and ethno-sectarian segregation, there is a real risk that combining these overlays may convert information into predictive outcomes. And to an extent, such a process of counterinsurgency clearing/ethnosectarian segregation is what took place during the 2007 surge. While critics of the Iraq surge point to the admittedly draconian segregation tactics of the counterinsurgency creating a situation similar to the West Bank, supporters of the surge, such as Thomas Ricks, counter that these measures were not meant to divide Iraqis from each other, but rather “what they actually were

In Conflict

87

doing was dividing Iraqis from people trying to kill them and choking off the normal movements of death squads.” Of course, both statements can be true: the same measures that provide security can also segregate and balkanize. An Associated Press story offers an on-the-ground look that captures this complex duality: “Rows after rows of barrier walls divide the city into smaller and smaller areas that protect people from bombings, sniper fire and kidnappings. They also lead to gridlock, rising prices for food and homes, and complaints about living in what feels like a prison.” In order to parse these complex arguments about the full effects of the surge, I will cast them in the form of a few questions. What is the relation, in general, between the counterinsurgency and the course of the intensifying ethnic conflict, a near civil war, in Iraq? Do the unquestionably lower levels of violence indicate that the surge, as its proponents suggest, managed to pull Iraq “back from the brink of total collapse”? Or did the surge contribute to the very process of ethnic conflict it set out to avert? What is the relation, in particular, between the clearing tactics of the counterinsurgency and the near complete segregation of society that accompanied the reduction in violence? Although a detailed narrative of the U.S. occupation and the various insurgencies it unleashed is beyond our scope here, we must answer these questions in as precise a manner as possible, tending carefully to the sequence of events from early 2005 to the middle of 2008. The startling speed with which Iraqi society unraveled in the space of a few years remains something of an enigma. Institutional and structural factors certainly facilitated an increasing sectarianism. Paradoxically perhaps, one of the factors that exacerbated the problem was the process of democratization itself and the particular shape it took in Iraq. As early as the Coalition Provisional Authority’s creation of the Interim Governing Council, the effort to produce an inclusive and representative sample of Iraqi society focused on ethnic and sectarian representation, thereby institutionalizing these markers. An International Crisis Group report astutely notes that “for the first time in the country’s history sectarianism and ethnicity became the formal organizing principle of politics.” The January 2005 elections (boycotted by the Sunnis in a mistake of historical proportions) and the resulting constitution only amplified these nascent tendencies. The elections and adoption of the constitution in December signaled the coming storm to perceptive observers. Kanan Makiya, a proponent of the 2003 war and someone with influence in the Bush administration, spelled out the problem in a scathing opinion piece, “Present at the Disintegration.” Makiya lamented the

88

War, Sovereignty, and Plural Citizenships

constitution’s scheme of a weak, almost impotent center alongside the encouragement of large, powerful regions that would benefit disproportionately since the constitution allocates oil and gas revenues to the regions that generate them. This allocation formula would be of most benefit, of course, to the Shiites in the south and the Kurds in the north but would further alienate the Sunnis. Makiya concluded with what in hindsight is an ominous prophecy: “Sunni opposition to the new order will continue. Crushing it by force, as some Shiite hotheads in the Parliament’s majority bloc are calling for, will be an extremely bloody business. Even if the long term outcome of an all-out Iraqi civil war is not in doubt, the body count and destruction would make Lebanon’s war look like a picnic.”  The year 2006 would offer a daily and deadly confirmation of Makiya’s prediction. On February 22, 2006, the bombing of the Golden Dome Mosque in Samarra, a deeply holy site for Shi’as, and the weeks of sectarian violence that followed were the culmination of deteriorating trends rather than the beginning of something new. Thomas Ricks correctly notes that “some officers and many observers argue that the incident simply was the culmination of a worsening trend that top [U.S.] officials weren’t grasping because of their focus on developing Iraqi security forces rather than on the situation of Iraqi civilians.” To the extent that the Samarra bombing jolted U.S. officials, revealing to everyone the pressing need for a change in U.S. policy, it was a turning point. But a change in policy would be another year coming, and, in the meanwhile, the process of ethnic cleansing, facilitated in part by a misguided American policy, continued apace. For example, regardless of the number of troops on the ground, it was not until the 2007 surge that U.S. officials fully realized that the Iraqi police were part of the problem and not the solution. Through much of 2006, government security forces and Shi’a death militias were virtually indistinguishable, and U.S. forces either ignored this development or were, according to some accounts, complicit in it. In multiple interviews the International Crisis Group found that “Iraqis relate countless stories of antiSunni violence by Security forces despite a nearby U.S. presence; in some cases, they claim the U.S. was ‘softening up’ Sunni neighborhoods resisting such forces.” 2006 was the year of ethnic cleansing. This was a process that to some extent the Americans unleashed and facilitated by both conflating the entire insurgency with al-Qaeda and the Sunnis and by refusing to acknowledge the deeply sectarian designs of the national government and the security forces; but the process was also one that at some point moved on its own

In Conflict

89

deadly logic, leaving the Americans largely irrelevant and hunkered down in their desperately protected bases. Whatever its complicated causality, the process was unambiguously brutal and swift. Within the space of a year, the political geography of Baghdad was vividly redrawn. As the New York Times (and many others) noted at the end of 2006, “At least ten neighborhoods that a year ago were mixed Sunni and Shiite are now almost entirely Shiite.” The systematic and violent expulsion of peoples from their neighborhoods in order to convert them into purely Sunni or Shiite led to an astounding 146,322 displaced individuals in 2006 alone. Nor was this violence and sectarian killing some sporadic outburst of “ancient hatred.” Rather it was an orchestrated, even finely tuned effort by political parties to use militias to consolidate power over districts and thereby increase their influence in the Council of Representatives: a Brookings Report based on extensive field research found “the Office of Muqtada al-Sadr and the Supreme Council for the Islamic Revolution in Iraq (SCIRI) on the Shi’a side, and the Association of Muslim Scholars (AMS) and the Islamic Party on the Sunni side as the main drivers of sectarian displacement.”  The success of the surge in reducing violence was attributable to a number of other factors, which were largely extraneous to it. The fear of ethnic cleansing on the part of the Sunnis, as well as the descent of the Shi’a militias into internecine infighting and criminal activity, combined to create a space the Americans could occupy with some legitimacy. Nir Rosen corroborated this point when he noted of the 2007 surge that “troop increases and a determined counterinsurgency policy came at a time when they could finally be tolerated in anti-occupation neighborhoods because the main struggle had shifted from liberating Iraq from the Americans to inter-Iraqi fighting. Had the Surge occurred a year earlier, it would have met far greater resistance.” The surge, as is widely acknowledged, also benefited in reducing violence by the turning (often called the awakening) of Sunni insurgents against al-Qaeda, principally in Anbar province, as well as the unilateral cease-fire or “freeze” by the most passionate antioccupation figure, Muqtada al-Sadr, and his Jaysh al-Mahdi militia (also known as JAM or the Mahdi army). And, perhaps more important, the process of ethnic cleansing had largely run its course. While the surge is popularly credited with reducing ethnic and sectarian cleansing, multiple sources would suggest that much of the process of ethnic cleansing was already completed before the surge. Even in Ricks’s admiring account of General Petraeus and his counterinsurgency strategy, The Gamble, Ricks notes “by the time they (U.S. forces) got here,

90

War, Sovereignty, and Plural Citizenships

the ethnic cleansing of Baghdad had been largely completed.” Or put more bluntly, as Captain Jay Winks, an intelligence officer operating in southwestern Baghdad, explained the reduction in sectarian violence: “One way to put it is that they ran out of people to kill.” What is it then that the surge actually accomplished? The counterinsurgency, which was ostensibly designed to push back against the insurgency, instead found its footing by casting itself as an umpire in a cross-sectarian conflict; and its elaborate clearing tactics became, as in so many earlier instances, mechanisms of ethno-sectarian segregation. The counterinsurgency came to focus on breaking a cycle of sectarian violence and did so by installing a system of what Kilcullen euphemistically calls “gated communities”—neighborhoods walled off with concrete barriers, with controlled “access points” that facilitated knowing “who was supposed to be in any part of the city and who was not.” Checkpoints and the rule of the passbook are the daily face of all occupation, and the burden that these measures impose would have been intolerably high in Iraq but for the fact that they came at a very specific moment when the focus had shifted from antioccupation resistance to domestic infighting; thus, the counterinsurgency was able to offer itself and these tactics as the last hope of a desperate populace. Of course, twenty-foot-high concrete barriers and checkpoints were not entirely new to Baghdad. From 2003 onward, the Americans had used them to fortify the green zone. Moreover, in 2005, an early experiment in counterinsurgency’s central maxim of clear-hold-build was conducted in Tal Afar—an experiment chronicled in one of the CFM’s many instructional vignettes (182–84). The process began, the manual informs us, with the construction of an eight-foot-high berm around the city, which in turn funneled all traffic through checkpoints manned by U.S. and Iraqi forces (supplemented by the use of local informants to identify insurgents). “House to house searches” and “the movement of civilians out of contentious areas” (CFM, 183) completed the clearing phase. The 2007 surge then increased this system exponentially. One of the first efforts in April 2007 to enclose an entire neighborhood focused on the predominantly Sunni section of Adhamiyah, an area that also contained one of the sect’s more famous mosques. Just the wall around Adhamiyah amounts to three miles of concrete barriers. Although Adhamiyah was to be only one of many “gated communities” (by June 2007, eleven sets of walls had been built in Baghdad), it did attract national and international media attention. While the architects and advisers of the counterinsurgency, such as Kilcullen,

In Conflict

91

dismissed the criticisms of the walls by Iraqis as “information operations” on the parts of the insurgents, there was genuine dismay and anger at all levels of society: from local residents who predicted the walls in Adhamiyah “will deepen the sectarian strife and only serve to abort efforts aimed at reconciliation” to Prime Minister Nouri al-Maliki himself, who noted that “there are other methods to protect neighborhoods” and added, in a clear reference to Palestine, that “this wall reminds us of other walls we reject.” Although Kilcullen and others explain the need for walls as a need for security, for protecting the population from insurgents—the first law of counterinsurgency clearing—it is not entirely clear that security was their only purpose. The walls, as Patrick Cockburn has noted, could not protect against rocket or mortar attacks. What they did succeed in doing was to free up troops for a more conventional combat push against pockets of insurgency (killing) and to function as a means to “structure the environment” (policing). And since then, the building has continued, subdividing the city into ever-smaller enclaves. Journalist Nir Rosen describes a visit to the Dora neighborhood in Baghdad during the surge: “Looming over the homes are twelve-foot high security walls built by the Americans to separate warring factions and confine people to their own neighborhood. Emptied and destroyed by civil war, walled off by President Bush’s much-heralded ‘surge,’ Dora feels more like a desolate post-apocalyptic maze of concrete tunnels than a living inhabited neighborhood.” In fact, in some analyses of the surge, the “success” of the clearing mechanisms of counterinsurgency can only be understood as part and parcel of a larger process of ethnic cleansing. There is another less sanguine take on this same “clearing” strategy. In this version, the surge instituted an elaborate and possibly permanent system of ethnic separation. The checkpoints and biometrics, walls and barriers, confined each ethnic group into its own heavily policed enclave— a political device of soft partition. Thus, Matthew Duss, among others, argues that the success of the surge in reducing interethnic violence is more accurately traced to the fact that it, wittingly or otherwise, froze into place the homogenous enclaves created by the intense period of ethnic cleansing that preceded it. We are now in a better position to answer the question of the relation between the surge and the course of ethno-sectarian violence: the surge through its counterinsurgency clearing measure froze the conflict into place. The miles upon miles of hulking concrete barriers that have turned Baghdad into a city of walls represent one part of a “systematic attempt to transfer the conflict into a deep freeze.” The problem with some of the measures

92

War, Sovereignty, and Plural Citizenships

introduced through the new counterinsurgency in Iraq is that they may not be temporary and that they may very well hinder the sort of national political cohesion required for any long-term solution. Certainly, the sheer scale of the barriers suggests something more permanent. Moreover, more than a year after the initiation of the surge, barriers continued to be constructed. In June 2008, according to an Associated Press reporter in Baghdad, “New walls are still going up, the latest one around the northwestern Shiite neighborhood of Hurriyah, where thousands of Sunnis were slaughtered or expelled in 2006.” Or in Samarra, the site of the bombing of the Golden Dome shrine, what remains at the end of 2009 is a half-mile passageway of blast walls leading to the shrine. As one news report astutely noted, Samarra is marked as much by war as by “peace”: “many say Samarra city has been forever changed by the war—and then the effort to keep the peace. From damaged and destroyed buildings that dot the landscape to towering concrete walls that block roads, businesses and homes . . .” Just as many colonial counterinsurgency “clearing” operations were more or less a direct extension of past colonial policies, there is a danger that the current U.S. clearing measures will extend into the future, as a stop-gap measure morphs into a permanent state of siege. Whether this danger is real or not, whether these walls have or have not been matched with steps toward real political cohesion, will only become apparent in the months and years ahead. The early indications are not promising. The concern is that the tactical success of counterinsurgency replaces any sort of political outcome. Or does it? Perhaps a segregated and constantly monitored public space is the intended political outcome. That is certainly the unwitting conclusion of the Associated Press reporter I quoted earlier: “They (the concrete barriers) could be around for years to come, enforcing Iraq’s fragile peace and enshrining the capital’s sectarian divisions.” As we have seen, colonial military strategy was irredeemably blurred with colonial governance. As both a tactical and legitimation question, this blurring mattered very little. Earlier colonial policing methods or small wars could remain largely punitive expeditions or harsh segregation policies, typical of the initial “clear and hold” stages of counterinsurgency, precisely because these regimes were colonial, that is to say, regimes not of consent but of coercion and cooption. As Iraq makes the transition to a fitful, fragile, but still nationalist democracy, how and where is this genealogy we have been tracing to find its conclusion? This argument offers a different depth of meaning to the word colonialism and to its impact on contemporary confl icts, following a mutation as

In Conflict

93

imperial policing tactics bleed into contemporary combat that in turn bleeds into daily governance. It forces us to ask the question, how do colonial tactics live on in the postcolony? The new national democracy must balance the demands of tearing down the walls, as symbols of a past occupation and a continuing sectarianism, with its concerns with security. The Maliki government from 2007 through 2009 found itself visibly torn between these competing claims. In the spring of 2009, the Maliki government decided to try to dismantle some of the more imposing barriers, but, after deadly attacks on the buildings housing the Foreign and Finance ministries in August, the barriers were re-erected, leading one journalist to remark that “at least for now, Baghdad, it seems, will remain a fortress city.” For another vivid possibility of how such tactics of war become modes of governance, let us return to Samarra, the site of the deadly 2006 bombing of the shrine of the Golden Dome. As I noted earlier, in Samarra, the barriers remain mostly in the shape of a half-mile passageway of fi fteen-foot blast walls leading up to the shrine. On one side are Shi’a pilgrims from all over the Middle East and on the other side the shuttered shops of the Sunni merchants who once offered them all manner of goods and ser vices. The wall has paralyzed Samarra’s economic reconstruction, and now the Americans are beginning to acknowledge its long-term disadvantages. The commander of the U.S. command center in Samarra admits that while the walls provide immediate security, they have “a second and third degree negative effect.” As a result, the U.S. military through a Pentagon-funded project is working with the Iraqis to replace the blast walls with “a series of decorative gates, security cameras and metal detectors.” And that project is perhaps one end of this particular genealogy, as the blast walls of conflict, themselves derived from the earlier schemes of imperial policing, morph into the daily apparatus of the security state. As for the post-surge political landscape, the real question is how such sectarian identities will intersect with nationalist claims? At the national level, the Maliki government’s crackdown on Shi’a militias and the Sadrists— the so-called “charge of the knights” of March 2008—shifted the tone from a blatantly sectarian to a seemingly nationalist one. At the local level, hardwon gains against the militias by local leaders are fragile, and many residents now want the walls to remain. Rosen correctly identifies Iraq’s post–civil war order as one of “enshrined sectarianism.” The real question then—and it is very much still an open question even through the recent elections—is whether such an on-the-ground ethno-sectarian segregation, a geography

94

War, Sovereignty, and Plural Citizenships

of separate and rule, can be translated into and accommodated by such institutional mechanisms as federalism, or will it pose too strong a centrifugal force, tearing the territorial entity apart? This question, of course, does not belong just to Iraq; it is very much the defining question of the postcolony. It is a theoretical and conceptual question informed by the close reading of military tactics that asks of us, what does it mean to live politically in the postcolony?

Part II Immigration, Sovereignty, and Plural Citizenships

This page intentionally left blank

Chapter 5

Citizen Terrorists and the Challenges of Plural Citizenship PETER H. SCHUCK

A

mericans commonly think of terrorists as foreigners, typically from the Mideast or “Afpak” region. Probability, not xenophobia, underlies this belief, given the background of most known terrorists and the hundreds of millions of people around the world who despise America’s liberal culture, its sturdy support for Israel, its religious diversity and tolerance, and much else. Almost all of those who wish to destroy American power, institutions, and ways of life tend to fit the stereotype. But in an era when the United States has become increasingly receptive to many forms of plural citizenship, it should not be surprising that some citizen terrorists identify with other societies. Th is reality was dramatized during just a few months in 2010 when three American citizens were arrested in connection with bomb plots: Faisal Shahzad, a naturalized citizen from Pakistan, for an unsuccessful car-bomb attempt in Times Square, and the other two for international jihadist activities. These three Americans are not the first to be prosecuted for such crimes. Jose Padilla’s “dirty bomb” plot and Timothy McVeigh’s mass murder in Oklahoma City are other examples of acts of terrorism perpetrated by Americans against Americans on American soil. Unlike McVeigh, most of the American terrorists have been dual citizens whose primary allegiance is to Islamic countries and Islaminspired creeds. These examples of citizens engaged in domestic terrorism—which I define here as terrorist activity launched by American citizens against other Americans and not such activity initiated on U.S. soil by noncitizens—may be dreadful harbingers of catastrophes to come. Federal officials predict that

98

Immigration, Sovereignty, and Plural Citizenships

these acts are likely to increase. Such prognostication is, of course, an inherently difficult one to assess, but it seems plausible considering the tactical advantages that citizenship confers on extremists who seek to inflict great damage on our society. After all, they can use their American passports to come and go as they please, and they enjoy the same extensive legal rights accorded to all criminal suspects under U.S. law. They can claim these advantages, moreover, even if their ties to American society are exceedingly tenuous and fleeting, and even if their citizenship merely reflects the accident of birth, followed by a life lived abroad that often includes a different citizenship that they value far more. Citizenship law, then, must be one piece of our intricate national-security mosaic. By citizenship law, I mean the set of legal rules enacted by Congress and interpreted by the federal courts that prescribe how individuals may become citizens, how they may lose that status, which rights this status confers, and what their access is to plural citizenship. This essay explains what these rules are and why they matter. If the risk for Americans terrorizing Americans in American cities is indeed growing, then citizenship law, like criminal and national-security law, must take account of this disturbing fact. Whether and how these rules should be changed are separate and genuinely difficult questions. The issue of political loyalty—what it means, how it is measured, and especially what risk exists that powerful officials might question and manipulate it at the cost of our precious individual liberties—is a very old issue for Americans, and it has always been fraught. From the beginning of the republic, our history has been punctuated with periods in which that risk materialized in ugly, divisive, and frightening forms—for example, the Alien and Sedition laws of the late 1790s, the Know-Nothings in the 1850s, and McCarthyism a century later. Some think we are entering another such period today, with the adoption of anti-immigrant legislation in border states, but I see little resemblance to the earlier periods—in part, because almost all these actions target illegal migrants, not the vastly larger group with legal status. In a liberal polity whose paramount values are individual freedom and limited government, citizenship must not be too intrusive, demanding, or subject to government discretion. This is probably what the constitutional theorist Alexander Bickel meant in writing that American citizenship “is at best a simple idea for a simple government.” Using citizenship law to monitor loyalty cannot be done without triggering delicate, uncertain, and potentially dangerous tradeoffs; extreme caution is warranted. As we confront the risk of domestic terrorism, we must always keep very much in mind this

Citizen Terrorists and Plural Citizenship

99

countervailing risk to our liberty and to the communal trust on which that liberty, and much else, ultimately depends.

Plural Citizenship and Modern American Citizenship In an article published in 1989, I described a modern “devaluation” of American citizenship. I emphasized a number of legal and other developments since the 1960s—particularly the expansion of egalitarian and dueprocess norms—that conferred rights on noncitizens that reduced their incentives to seek citizenship. The main advantages of citizenship were the right to vote and a higher priority in getting one’s family members admitted to the United States. The main disadvantage of remaining a noncitizen—the risk of deportation—was vanishingly small unless the noncitizen committed a serious crime. This relatively low “marginal value” of citizenship reduced the noncitizen’s incentive to seek it, which helped explain the low naturalization rates among many immigrants, especially those from Mexico and other neighboring countries. Almost ten years later, I published another essay about the more recent “reevaluation” of American citizenship. There, I noted that the 1996 welfarereform law had made noncitizens ineligible for a large number of federally financed social-program benefits and that 1996 immigration reform had increased the risks of deportation for noncitizens who were out of status or who had violated a long list of criminal laws. Both of these legal changes (particularly the first), I argued, increased the marginal value to noncitizens of acquiring American citizenship. Sure enough, the number who sought naturalization after 1996 increased dramatically. Many of those who were naturalized did not cease to be viewed as citizens of their countries of origin by those countries, by the United States, or by themselves. They responded to heightened incentives to naturalize by seeking and acquiring plural citizenship. Still, to understand and assess the recent rise of plural citizenship in the United States fully, we need to recognize that the nature of citizenship is shaped not only by individuals’ incentives but also by social practices, legal rules, and ideology.

Social Practices Since the 1960s, the number of Americans who also hold citizenship in one or more other countries has grown rapidly. Immigrants’ motives for

100

Immigration, Sovereignty, and Plural Citizenships

becoming naturalized in the United States are varied: identification with American society and ideals; improved odds for bringing relatives to join them in the United States; elimination of deportation risks; access to public benefits; and the convenience of an additional passport, among others. What is clear, however, is that plural citizenship is far more accessible today than it was in the past. Two social practices that encourage it—international migration and marriage between individuals of different nationalities—are common and promise to become more so in the future.

Legal Rules Our law makes citizenship easy to acquire. The vast majority of Americans are automatically and immediately citizens by virtue of birth on U.S. territory, even if the mother’s presence in the United States was illegal (she lacked a valid visa), adventitious (she was just passing through), tactical (she wanted the child to have American citizenship or to receive U.S.-level hospital care at birth), or cynical (the citizen child could, at maturity, petition for the admission of the parents). The legal conditions for naturalization in the United States (other than the requirement of five years of legal, quasicontinuous residence) are readily met by anyone who studies the examination booklet, keeps her or his nose clean, and speaks a smattering of English. Children who are born abroad of even one American parent who lived in the United States for five years, at least two of which were after age fourteen, can claim citizenship here, even if the child has never set foot in the country. Our law also makes this easily acquired citizenship almost impossible to lose. Congress long ago empowered the government to revoke the citizenship of a naturalized citizen who procured it through misrepresentation or fraud: for example, by concealing that he had committed serious crimes. Applying this standard in specific cases can be difficult, but everyone agrees that those whose naturalization petitions would not have been approved had the facts been known should not be citizens. For example, Faisal Shahzad may have concealed his murderous Times Square plan when he was naturalized in April 2009, although he may have conceived the plan later, which might defeat a legal effort to denaturalize him. Revoking the citizenship of American-born dual citizens, such as Anwar al-Awlaki, the American-born Yemeni accused of planning and training perpetrators of al-Qaeda attacks, or Islamic terrorists with only U.S. citizenship, such as Fort Hood killer Nidal Hasan, presents a complicated constitutional question. Under a 1940 statute still in force today, the govern-

Citizen Terrorists and Plural Citizenship

101

ment can denationalize citizens who serve in a foreign military, vote in a foreign election, swear allegiance to or hold office or become naturalized in a foreign state, expressly renounce their citizenship before certain U.S. officials, or conspire to make war against the nation. But an important 1967 Supreme Court decision, Afroyim v. Rusk, held that Congress cannot constitutionally revoke citizenship without the citizen’s consent. Thus, the government must prove that when he committed one of these acts, he intended to relinquish his citizenship. That ruling has since been clarified and mildly qualified, as I discuss below, but it has not been overturned. This decision has had great impact on the question of how the law treats plural citizenship. The United States traditionally opposed plural citizenship, concerned not only about divided allegiance but also about militaryservice obligations and diplomatic imbroglios involving dual citizens. Its willingness to construe various actions abroad as constituting voluntary expatriation, whether or not they were intended to do so, was evidence of the power of these concerns. Nevertheless, the government now countenances plural citizenship, a necessary concession to the new social and legal realities. It neither investigates nor seems to care whether a new citizen’s renunciation of her original citizenship, required in her naturalization oath, has any legal effect in her country of origin. In most cases, it does not, which in effect enables the naturalized citizen to retain plural citizenship. Indeed, many of the countries of origin exploit this U.S. indifference by allowing their nationals who are naturalized here to retain their original nationality or to reacquire it after having renounced it in their oath. Moreover, many of these countries—for example, Mexico, India, the Philippines, and the Dominican Republic—now automatically confer citizenship on their nationals’ U.S.-born children, who thereby acquire dual citizenship at birth. Most of these are leading source countries for immigrants to the United States, swelling the ranks of plural citizens.

Ideology How important should citizenship be to our individual and national identities, social status, and legal rights? I have elsewhere identified several influential models of citizenship, each making claims that are analytically distinct but conceptually, politically, and legally related. These claims include justification, the principled reasons for conferring, withholding, or terminating citizenship; territoriality, the geographic basis for defining the rights and obligations of citizenship and states’ powers to protect and enforce them;

102

Immigration, Sovereignty, and Plural Citizenships

and entitlement, the bundle of legal rights that only the citizen can claim from the state, along with the obligations that the state can demand only from its citizens. In order to highlight the central issues raised by plural citizenship in modern America, here I focus on the justification and territoriality dimensions in regard to the two models most concerned with the treatment of immigrants and strangers who may seek to gain multiple citizenships—the nationalistic and human-rights models. There can be little doubt about which of these models has been most dominant in American history and politics. Traditionally, Americans have been fiercely nationalistic. The evolution of our citizenship law is complex, having evolved from a unique mixture of liberal openness and ethno-racial and gender exclusion to a system of equally remarkable inclusiveness. Even today, however, our conception of citizenship embraces the idea that the United States is a spatially bounded political community and a sovereign state exercising plenary power over its territory, with the power and duty— constrained only by the federal Constitution and laws—to defend its physical borders; to define for itself who are insiders, outsiders, and in-betweens; to determine the rights of these individuals and their obligations to the state; and to decide which, if any, international law limits (other than peremptory jus cogens norms) on America’s sovereignty it will accept. This nationalistic conception invokes America’s distinctive values, governing institutions, culture, and public policies to shape the law, practice, and meanings of citizenship. At least in its more liberal forms, it usually finds justification in the ideal of the mutual consent of the citizen and the polity. This consensual grounding, captured metaphorically in the idea of a social contract and inscribed ideologically in the Declaration of Independence, is most obviously true of citizenship that is enacted through the drama of the naturalization ceremony. The consent principle is also embodied in the statutes that confer U.S. citizenship by descent ( jus sanguinis) and by legislative grace (as in the case of statutes making foreign-born soldiers who serve in the U.S. military eligible for citizenship). Political scientist Rogers Smith and I have also argued that in American traditions, even birthright citizenship ( jus soli), which is by far the largest source of American citizenship, is also understood as based on consent, though problematically so. We maintained in a 1985 book that the drafters of the Fourteenth Amendment’s citizenship clause, the constitutional basis for birthright citizenship, intended the clause to institutionalize a requirement of mutual consent (by both the individual and the polity). Consistent with common law and with what most Americans appear to regard as common sense, the consent principle imputed

Citizen Terrorists and Plural Citizenship

103

the parents’ nationality to their children at the time of birth, and this tacit consent of the children continued indefinitely, absent their voluntary expatriation. We also contended that the provision of the citizenship clause limiting birthright citizenship to people “subject to the jurisdiction” of the United States, originally drafted to exclude members of Native American tribes and the children of diplomats and foreign soldiers born on American soil from gaining automatic U.S. citizenship, embodied the judgment that birthright citizenship should not extend to those present in the United States without the consent of the U.S. government. The Supreme Court has never squarely faced this issue, although efforts to prompt it to do so have proliferated in recent years, and a resolution to restrict birthright citizenship by constitutional amendment was introduced in the Senate early in 2011. The prevailing presumption, however, remains: the clause renders all U.S.-born children automatic birthright citizens (except for the diplomatic and military cases noted above), regardless of any other citizenship or allegiance that they may possess. This view has made America’s version of birthright citizenship probably the most categorical, liberal, and inclusive in the world. Accordingly, it generates a great deal of plural citizenship. The justificatory primacy of the mutual-consent principle and its implications for plural citizenship are even clearer when it comes to the termination of U.S. citizenship. The Afroyim decision’s insistence that the Constitution requires expatriation to occur only as the result of voluntary, knowing, and intentional acts by persons renouncing their U.S. citizenship means that the United States has little power to reduce the incidence of plural citizenships via withdrawal of membership in its civic community. Although the reasoning in Afroyim was not altogether convincing in light of past statutes, legal precedents, and practices, it remains the rule, subsequently codified in the nation’s expatriation statute. The nationalistic model of citizenship gives great weight to territoriality since it is premised on a bounded state’s sovereignty over particular territory, which fundamentally determines the state’s power to confer citizenship and to execute the duties and rights associated with that status. The exercise of sovereign power over a defined, bounded physical space is the basis under international law for statehood itself, the basic unit of the Westphalian international system. Territorial presence and control are also a necessary, though not always sufficient, basis for the exercise of a state’s power to coerce individuals, a power ultimately limited by the government’s legal and effective authority. The United States certainly can sometimes influence those outside its sovereign territory, and, if its effective control is great enough,

104

Immigration, Sovereignty, and Plural Citizenships

it may even have some obligations under domestic law to citizens there, as well as some obligations under international or moral law to others affected by its exercises of power abroad. By and large, however, a state’s extraterritorial control—even in the case of the American Goliath—is likely to impose only limited obligations of this kind. Finally, the political and social connections that citizenship both glorifies as an ideological matter and nourishes in fact are rooted irreducibly in the national territory on which those connections are forged. Civic ties are refreshed and extended by the interactions, shared experiences, cultural patterns, and other commonalities that constitute an overarching national identity and, in the United States, a remarkable level of patriotism. These concerns with mutual consent and with shared territoriality help explain why the nationalistic model is often skeptical about whether supranational legal orderings are consistent with American values and institutions. In this view, they represent exercises of authority often far removed from U.S. soil and unresponsive to American popular will. A similar concern animates the current debate within the U.S. Supreme Court and among academics about the validity of using foreign law to inform interpretations of the U.S. Constitution. Congress’s refusal so far to join the International Criminal Court reflects a similar nationalistic skepticism. Finally, although the nationalistic model can support plural citizenship in many instances, as I have stressed, it counsels against any innovations in political membership that might erode the principle of governance by consent and the senses of solidarity and shared commitments that the nationalistic model prizes. In contrast, many Americans, particularly in academia and on the political left, insist that globalization makes national citizenship an increasingly antiquated idea. They contend that it will and should yield to a more cosmopolitan notion of membership, the “human-rights model.” It is based on mere personhood and supports more universal, egalitarian claims to status and national resources. If nationalistic citizenship aims to vindicate the liberal value of democratic consent, the human-rights model finds its justification in the goal of securing individual and group rights that will ensure humane and protective conditions for persons who reside in cruel and despotic states, and for individuals outside their country of nationality who are at risk for receiving unequal and inhumane treatment in their new locations. Rather than relying on consent, the human-rights model is based on a unilateral right of a nonmember to affiliate with a state for certain purposes, thereby often creating plural citizenships. It is seen as a necessary complement to nationalistic citizenship precisely because of states’ refusals

Citizen Terrorists and Plural Citizenship

105

to consent to protect needful individuals who are unaffi liated with these states. Advocates of the human-rights model stress that in an era of vastly increased, often involuntary migration that leaves millions in vulnerable positions—even as they confer economic and cultural benefits on their host countries—a world increasingly guided by international human-rights law should focus on the realities of human needs around the globe, not on the preferences of particular privileged national populations. For the same reasons, the human-rights model rejects the significance of territoriality for citizenship. In this model, birth in a particular state and to particular parents is an accident too arbitrary to determine access to rights that, as a matter of distributive justice, should be enjoyed universally. The model’s hostility to territoriality as the basis for essential rights is tied to a historical claim (or hope) according to which a progressive dynamic, driven by a combination of increased globalism (especially migration), enlightened national self-interest, and a rising universalist-egalitarian Zeitgeist, will move the locus of citizenship (or at least its most essential rights elements) beyond the status quo of national territories to regional supranational bodies like the European Union, and then on to more universal governance regimes like the United Nations. Only at this deterritorialized, universal level can equal access to certain rights and other goods be possible. The resulting forms of citizenship will be plural in that they will involve recognition of persons as members of different political communities in different locales and at different levels; but the hope is that all persons will really enjoy a uniformly egalitarian cosmopolitan citizenship. In the United States at least, the struggle between the traditional nationalistic conception of citizenship and this human-rights model will perhaps never be fully resolved because it mirrors two deep ideological veins in American life. What is clear, at least to me, is that the dynamic of globalism, powerful as it is in many ways, does not ordain any teleologically driven triumph of the human-rights model. Instead, the struggle is ideological, cultural, economic, and political. Indeed, there is much evidence that globalism is actually reinforcing nationalism and localism even as it pushes against these forces.

Plural Citizenship and the Challenge of Citizen Terrorism It has often been said that 9/11 and the heightened fear of terrorism both foreign and domestic changed everything. As I noted earlier, however, it has

106

Immigration, Sovereignty, and Plural Citizenships

not changed citizenship law at all. The fact that Jose Padilla and Faisal Shahzad were American citizens has often been mentioned in the press but has had no legislative resonance in the Congress. Still, recent terrorist attacks in the United States may yet change all this. The poisonous preachings of Anwar al-Awlaki, the American citizen who operated from his adopted homeland of Yemen, likely inspired both Shahzad’s unsuccessful Times Square car-bombing and Hasan’s mad Fort Hood rampage that left thirteen dead. Awlaki probably also inspired the Christmas Day 2009 jetliner bomb plot (by a Nigerian) and several recently aborted plots in which arrests have been made. To all appearances, he continued to goad other vulnerable souls to commit violence against innocents here, and, although a U.S. citizen, he was targeted by the Obama administration and killed by a drone attack in Yemen on September 30, 2011. Plural citizenship that includes American citizenship clearly facilitates many terrorist assaults. Like the Times Square bomber, plotters can travel easily to and from terrorist training camps on American passports; intelligence agents cannot monitor them as easily as they can immigrants; they cannot be deported; and they have certain legal rights that foreigners lack, such as the right to be tried in a civil court. American citizenship greases the wheels of domestic terror. Can Congress do anything consistent with the Constitution to reduce the ability of American officials to wage war on their fellow citizens? (Eliminating that risk altogether is not possible). The answer is yes. Once terrorists are apprehended, of course, they can be prosecuted for their specific criminal acts. They may also be prosecuted for treason, as their acts certainly meet the definition of treason in the Constitution: levying war against America and adhering to its enemies. Though the Constitution does not specify that traitors must be citizens, in practice, only citizens are tried for the crime; so the plural citizenship of Islamic terrorists facilitates these prosecutions. But under the Constitution, conviction for treason requires what may prove impossible to obtain: “the testimony of two witnesses to the same overt act” or a “confession in open court.” Even when successful, criminal trials are likely to be protracted and would occur only well after the damage has already been done. An ostensibly easier route for the government would be to seek to strip the terrorist of his American citizenship. This denationalization (sometimes called expatriation) might well be easier because it is a civil not a criminal remedy. Hence, the government’s procedural and evidentiary obstacles would be lower, and, once denationalized, a terrorist could be deported (as a citizen

Citizen Terrorists and Plural Citizenship

107

cannot be). Indeed, only days after Shahzad’s arrest, a bipartisan group in Congress led by Senator Joseph Lieberman introduced the Terrorist Expatriation Act, which would allow the government to denationalize a citizen upon a finding by the secretary of state that he provided material aid or support to a foreign terrorist organization as designated by the secretary or that he engaged in hostilities against the United States or an ally. But as I have noted, it is difficult to denationalize a U.S. citizen. First, there are the formidable legal constraints. When the United States was founded, the common-law courts in England had long held that allegiance to the Crown was perpetual; a subject could not renounce it without the sovereign’s leave. (Britain used this principle to justify impressing into military ser vice American sailors who were British-born but naturalized in the United States—a casus belli of the War of 1812.) Subsequent laws and international treaties established the right of all citizens to expatriate themselves and to seek naturalization in another country, but the question of whether and under what conditions the government can denationalize one of its citizens is a different and much harder question. The Constitution, including the Treason Clause, is silent about this issue. The Fourteenth Amendment does stipulate how citizenship is acquired—through birth or naturalization here—but it is silent about whether and how one can lose one’s citizenship. In 1907, Congress moved to fi ll this legal void, enacting a statute that not only provided for voluntary renunciation by an American citizen of his citizenship but also listed certain actions that would automatically result in loss of citizenship. In 1917, the Supreme Court held that Congress had the constitutional power to do this so long as the citizen acted voluntarily. In 1940 and again in 1952, Congress expanded the list, adding other actions that would trigger expatriation. Constitutional constraints entered the picture in 1958, when the Supreme Court decided three cases involving expatriations for acts listed in the law. In the most important of these cases, Trop v. Dulles, four justices maintained that Congress lacked the power to expatriate any citizen without his consent; a fift h joined the decision but not its reasoning on this point, leaving that constitutional argument without majority support. In 1967, however, this argument gained the decisive fift h vote in the Afroyim v. Rusk case to which I have already referred. The Supreme Court, properly recognizing the extreme severity of expatriation, held that the Citizenship Clause of the Fourteenth Amendment invalidated a citizen’s expatriation for having voted in a foreign election in that country (Israel), one of the acts listed in the statute, unless he had assented to losing his citizenship

108

Immigration, Sovereignty, and Plural Citizenships

in the sense of voluntarily relinquishing it. In a 1980 case, Vance v. Terrazas, the court reaffirmed this “intent to relinquish” requirement but allowed the government to prove it by a mere “preponderance of the evidence” rather than by a more demanding standard, such as “clear and convincing evidence.” Congress subsequently added the “intent to relinquish” requirement to the statute, and there the matter rests legally today. Absent a change in the court’s view of the Constitution (both Afroyim and Terrazas were five-to-four decisions, and the composition of the court has completely turned over since 1980), the “intent to relinquish” principle constrains Lieberman’s proposal and any other expatriation scheme. If we assume that this principle is settled, two related questions remain unsettled. Are there particular terrorist acts that would suffice—in and of themselves, without proof of the person’s actual state of mind—to prove the specific intent to relinquish, or can the government prevail only if he utters the magic words “I intend to renounce my citizenship” or some equivalent formulation? The Supreme Court has not answered this question, but it did note in Terrazas that the intent may be “found as a fair inference from proved conduct.” This phrase suggests that no magic words are necessary. A jury might infer that a person’s conduct implied an intent to relinquish citizenship. This logic leads to the next question: can the government expatriate someone who does not want to relinquish his citizenship but who commits terrorist acts—say, killing people simply because they are Americans, as Shahzad apparently did—that are utterly inconsistent with even minimal allegiance, acts that (unlike Afroyim’s act of voting in a foreign election) can only be understood as denoting hatred of America? Assuming that the individual has a fair opportunity to rebut the government’s claims, I think that the answer should be yes and that the Roberts Court would agree; but some other hard questions remain. Is “minimal allegiance” the proper standard, and, if so, what does it mean? Could the government expatriate one who lacks minimal allegiance and feels hatred for the United States but does not act on those feelings? Where the expatriating act is criminal (such as material support for terrorist organizations, as in the Lieberman bill), must the government first convict him of the crime rather than simply make an administrative finding that he did it? Suppose the individual is not a plural citizen so that expatriation would leave him stateless, a condition that international law condemns and seeks to minimize? Beyond these legal considerations is a practical one. Although expatriation is a civil sanction, it shares with criminal sanctions the limitation that it can only be imposed after the fact—and only at the conclusion of a legal

Citizen Terrorists and Plural Citizenship

109

proceeding surrounded by due-process safeguards. Expatriation, then, cannot prevent terrorism but at best can only add to the already-heavy penalties that may be imposed once the damage is done and the government proves its case. Nor, for a very simple reason, is the prospect of expatriation likely to deter terrorism at the margin. The threat to a potential terrorist of losing his American citizenship is likely to pale in significance compared with the other penalties for terrorist acts. If the threats of self-immolation, criminal prosecution, and capital punishment do not deter him, possible loss of citizenship in a country the terrorist despises will certainly not do so. If my assumption is correct, then we must conclude that expatriation of terrorists holding plural citizenship, while morally just and emotionally satisfying to the American national community, is not an effective weapon against them. Nor would demanding professions of loyalty from our citizens be either practical or justified. The Constitution rightly protects the citizenship of law-abiding and criminal citizens alike against a government that may seek to exile them, possibly for political or other illegitimate reasons. Communal loyalty is basic to citizenship, of course, but that does not mean that we do or should make citizens affirm it. A loyalty oath is required for naturalization, to be sure, but this requirement is because, by definition, the individual comes to the naturalization ceremony holding allegiance to another country. To demand an affi rmation of loyalty in other situations may infringe First Amendment rights to hold dissenting views or to remain silent. In a society that cherishes freedom, a duty to demonstrate one’s loyalty on pain of being exiled would be odious, perverse, and probably meaningless. This leaves us with the ensemble of conventional antiterrorism tools that, with the tragic exception of 9/11, have so far served us well in our government’s diligent searches for needles in haystacks. These tools include surveillance, screening, and other forms of intelligence gathering; criminal law enforcement; international financial controls; skillful diplomacy; civic education (although most terrorist acts in the United States have been committed by reasonably well-educated men); and, as a last resort, military intervention. Greater care in reviewing naturalization petitions for signs of violent propensities would also help, although slowing the citizenship process down and making it more onerous and less attractive to immigrants has its own costs. The United States must also continue to cultivate a culture pervaded by patriotism and respect for differences, and maintain and improve a system of legal and political remedies for legitimate grievances. A more just America is a compelling end in its own right, but it would be both naïve and

110

Immigration, Sovereignty, and Plural Citizenships

dangerous to believe that such a society would significantly reduce the risk of domestic terrorism. All that we know about the psychology of terrorism defies such a logic. Murderous jihadists and the Timothy McVeighs of the world are not likely to be mollified by the kinds of reform that are practically possible and socially desirable. Such terrorists are either mad or (what may be the same thing) driven by transcendent visions and inner compulsions that this world can never satisfy. Alas, expatriation is possible, and it might reduce the national-security dangers of plural citizenship; but it is surely the least of the terrorists’ worries.

Chapter 6

Immigration, Causality, and Complicity MICHAEL BLAKE

P

olitical philosophy has at last begun to take immigration seriously. After a long period during which most philosophers wrote as if no one ever joined a state except through birth, nor left a state except via death, we have begun to examine the morality of restrictions on immigration. We have, accordingly, begun to develop narratives of how our theories of justice would account for the rights of prospective migrants. The first and most basic question has been whether or not any state has—consistent with liberal justice— the right to exclude would-be immigrants at all. We have also asked how the rights of prospective members might be weighed against the distributive rights of current members, when these two stand in relationships of potential conflict. Further, we have asked what criteria might be used to select those who are to receive an offer of immigrant status—and just what that offer must, by right, entail. I do not want to claim that these topics are unimportant; they are vitally important questions we must ask as we face an increasingly mobile global population. I want to note, though, that they all point to a fairly abstract question: what must states, in general, do to be justified? This question begins with liberal theory and asks what a state would have to do to live up to the egalitarianism implicit in that theory. There are, however, questions that begin with specific states and their own particular histories, and ask how any particular state might understand the moral duties it faces. The difference between the two questions might be understood as the difference made by a particular historical trajectory of a national community. All liberal states have in common their liberal ideals; but each state also has its own particular

112

Immigration, Sovereignty, and Plural Citizenships

foreign policy, its own neighbors, and its own history. The question I want to start to ask here is how these particular facts might influence the morality of immigration restriction. I cannot hope to come up with a general theory of these issues; I want only to gesture toward some possible conclusions that might emerge from the actions undertaken by particular states rather than the conclusions that emerge from the nature of states in general. This topic has been, I think, underexplored in recent writing on immigration. It has not been utterly ignored: Rogers M. Smith, in par ticular, has developed a principle that might help articulate how a state might, through its actions, acquire an obligation to admit foreign nationals to citizenship. We have, however, spent comparatively little time examining how specific state choices might affect the rights of would-be immigrants. In what follows, I will examine this question by looking at two notions prevalent in the popular debates on immigration, and subjecting them to critical analysis. These two arguments focus not on immigration in the abstract but on our shared relationship to—and, thereby, responsibility for—particular forms of immigration. The two arguments, in skeletal form, are as follows: • Causality: where a state is causally responsible for the destruction of a foreign political community, that state acquires a moral duty to open its borders to at least some number of those individuals affected by the state action. • Complicity: where a community’s social institutions either foster or rely on illegal immigration, that community loses the moral right to exclude illegal immigrants. The relevance of such claims to current political controversy is obvious. The argument stemming from causality is frequently raised in connection with Iraq, much as Michael Walzer once raised it about Vietnam: “Toward some refugees, we may well have obligations of the same sort that we have toward fellow nationals. This is obviously the case with regard to any group of people whom we have helped turn into refugees. The injury we have done them makes for an affinity between us: thus Vietnamese refugees had, in a moral sense, been effectively Americanized even before they arrived on these shores.” The American refusal to give shelter to Iraqis at risk—between 2003 and 2006, only 466 Iraqis have been admitted to the United States, out of more than two million displaced Iraqis—has returned this argument to prominence. The New Republic, for instance, has argued that the United

Immigration, Causality, and Complicity

113

States has a duty to radically increase the number of immigrants accepted from Iraq, beginning with those Iraqis whose collaboration with occupying forces is the proximate cause of their jeopardy: “Baghdad may not be Saigon, but the pace of the killings justifies, at the very least, a stepped-up effort to extend asylum to Iraqis at risk and, equally important, to include their families in this category. Having turned Iraq inside out, the United States owes much to the citizens of that wrecked country. But it owes even more to the Iraqis who risked everything in America’s name.” The argument from complicity has a similarly prominent role within the contemporary popular debates surrounding immigration. Those opposed to strict enforcement of laws against undocumented workers have a version of such an argument available to them; they are able to cite what is perceived of as the American complicity in the fact that such workers perform their labor in the United States. American consumers eat cheap produce picked with the labor of undocumented workers; they frequently hire such workers for domestic labor and household help. The U.S. government, moreover, has let the border between Mexico and the United States become so porous as to be nonexistent. These facts, it is suggested, make it impermissible to regard undocumented immigrants as alien creatures, legitimately deportable at will. We act, at the very least, in a somewhat hypocritical manner when we treat fellow residents of our community in such a way. To allow the presence of these persons within our borders, to accept the benefits they bring, and then to refuse to recognize them as having some rights to remain within those borders is, we might think, a rather suspect way to understand the notion of membership. Robert Samuelson invokes similar arguments in his analysis of the American immigration debate: “One [moral precept] is responsibility. All of us are morally complicit in the flood of illegal immigrants. Our government encouraged it through loose border controls and lax oversight of employer hiring. A second precept is practicality. Hardly anyone thinks the 12 million can be rounded up and sent home. To pretend otherwise is dishonest, ordains failure and makes government seem inept.” The common theme in such arguments is the notion that our categorization of undocumented workers as alien—as outsiders—is itself ethically suspect. Such individuals are already present in civil society; indeed, they form a sizable chunk of it. Legal residents accept the benefits illegal residents provide. Legal institutions failed to exclude such individuals. The form of life built within these institutions could not even exist without the contribution and labor of these undocumented aliens. It is, therefore, morally

114

Immigration, Sovereignty, and Plural Citizenships

impermissible for legal residents to regard undocumented workers as legitimately subject to arrest and deportation. Complicit as legal residents are in the presence of the undocumented, they have no right to deport such individuals when the undocumented labor starts to become worrisome. Both these arguments—the argument from causality and the argument from complicity—are plausible. They have currency in contemporary debate because they are comprehensible and persuasive, and express the moral egalitarianism at the heart of liberal thought. They are, however, wrong; or, at least, so I will argue in this essay. While there is something in each argument that is defensible, the argument in each case must be made more restricted for such a defense to be ethically persuasive. More refined versions of the arguments, then, may be developed; as presently stated, however, the arguments must be rejected. In what follows, I will attempt to demonstrate both why the arguments are inaccurate and what a plausible reconstruction of similar arguments might look like.

Causality: Immigration and Warfare In defending the wrongness of the causality argument, I will begin by discussing another argument I take to be wrong. This argument is, in the simple form I give it, not especially plausible and deserves to be rejected. My hope, however, is that by understanding why this latter argument fails, we will gain some understanding of how the causality argument stands in need of correction. We may call this the international-justice argument. It begins from the fact that many, perhaps most, of the world’s citizens live under objectionably oppressive regimes. This fact, of course, is not natural in any strong sense of the word; it is not a matter of inevitability that the world’s institutions were developed such that some individuals were doomed to live under unrepresentative political institutions. As such, the situation is legitimately subject to moral criticism, and the individuals living under such regimes have at least some claim, against some agents, for rectification. So far, so good. The difficulty comes in articulating exactly what such claims are and how they are to be expressed in the international context. We may, however, agree on the following principle as, at the very least, a plausible beginning: individuals living under objectionably oppressive regimes have a claim against the set of agents whose collective (in)activity allows the oppression to continue. Th is collective set of agents, we may imagine,

Immigration, Causality, and Complicity

115

consists either entirely or primarily of such political agents as states. These states might choose to act in concert to give oppressive states powerful incentives to democratize. Instead, they have largely chosen to treat state sovereignty as more valuable than the rights of individuals, which they claim to regard as sacred. If the plausible principle above is correct, then this pattern of behavior violates the moral rights of citizens abroad. Those states that have the institutional capacity to improve the oppressive circumstances found in such states have at least some duty to do so. The world community as a whole, then—or at least some significant part of it—has a duty to act against such oppression. While this duty is not only dischargeable through the provision of immigration—we can imagine, I think, any number of means by which we might act against injustice—it is plausible to think that some aspect of the duty might involve a moral duty to increase the number of immigrants admitted. The international-justice argument becomes more controversial when we notice what it implies for such situations as the present circumstances of Iraq. It is not difficult to establish that whatever we take as our standard of objectionable oppression, Iraq under the Baathist regime fell below it. Iraq represented a particularly brutal form of autocratic governance; human-rights norms were widely disrespected; and the political leadership was subject to very few, if any, electoral checks. We may take it as plausible, then, that the citizens of Iraq under Baath rule had a claim—held against the set of states with the institutional capacity to provide aid—to the amelioration of their circumstances. If this is correct, however, we have reason to be careful in our assignment of ethical duties to states. The United States in this analysis is not the only state entity that had duties to aid the citizens of Iraq. All states that might have aided the citizens of Iraq and did not—the United States among their number—violated the moral rights of the Iraqis. The United States, we may say, bore only some proportional share of the collective duty of aid. But if this theory is true, it seems hard to say now that the burden of aiding the displaced of Iraq falls only on the United States. The fact that the United States invaded Iraq and likely made the everyday lives of most Iraqis worse in the process does not negate the continued existence of the duties in question. Nothing the United States has done, it seems, has caused the previously existing duties to fall out of existence. The duty to allow immigration, however, seems best understood as one aspect of these duties to aid. If a nation has an obligation to allow some outsiders to join its community, it is probably best understood as part of a package of duties to ameliorate the lives of those outsiders.

116

Immigration, Sovereignty, and Plural Citizenships

These facts however, mean that the international-justice argument undermines the causality argument. The difficulty with the latter—at least as it is described above—is that it does not recognize the continued relevance of such broader duties. Instead of regarding the right to immigration as emerging simply owing to American actions, we must imagine such rights as collective in nature. They emerge from the demands of international justice. The United States in this analysis did not create the humanitarian emergency in question. Iraq, in a moral sense, was already a humanitarian emergency; the world community simply refused to notice the fact. If this argument is correct, then the rights to immigration held by the Iraqis are not rights held specifically against the United States. The rights are held instead against the world community as a whole; all the United States must provide is—on some plausible cost-sharing metric—their fair share of help to the collective effort. The international-justice argument, I think, is unpersuasive. It seems to let the United States off the moral hook too easily. It is instructive to figure out exactly why this argument fails, and our response may lead us to understand exactly what must be changed in the causality argument for this latter argument to succeed. The reason the international-justice argument fails is that it ignores how the lives of ordinary Iraqis were affected by the American invasion. We may take as instructive the case of those Iraqis whose lives were placed at risk by their decision to work with the American troops, as, for example, in the case of translators and liaisons. These individuals led lives that were below legitimate moral expectations before the invasion; as discussed above, these lives were below a threshold of legitimacy such that the individuals who lived them had claims against others to rectification. What the above argument ignores, however, is that even bad lives can be made worse. Lives once lived under tyranny and fear are now increasingly lived under sectarian violence and near anarchy. We should never have to choose between a truly desperate form of life and a (merely) morally sub-par form of life. But it should be clear that the transition from the latter to the former constitutes a loss to the person involved. Even if persons had a right to help in their former situations—a right held against the community of states as a whole—they now face worse situations, making the provision of this help a matter of greater urgency. It is this marginal difference—from objectionable lives to true desperation—that the above argument fails to capture. This, however, seems to open a way forward in our present argument. We might think that it demonstrates the truth in the present context of the

Immigration, Causality, and Complicity

117

causality argument. Perhaps the United States, as the causal agent for this marginal change, bears moral responsibility for the consequences of this change. In this analysis, the United States has caused the lives of many Iraqi citizens to fall far below the threshold of moral acceptability. It then has a duty to ameliorate this new situation. The United States did not create a new right to immigration through its invasion. It did, however, make an old right vastly more urgent. As such, we ought to regard the United States as the primary agency against whom such rights may legitimately be pressed. While we should not lose sight of the fact that other states have persisting moral duties abroad, we may safely at present regard such duties as swamped by the moral urgency of the claims legitimately pressed against the American government. It would be nice if this way of speaking back to the international-justice argument worked out. It would get us back to where we began: we could resuscitate the causality argument more or less as it was originally stated. Sadly, however, the argument does not quite succeed. To see why, we may have to engage in some speculative—extremely speculative—reasoning. Imagine the perfect military campaign. The cause is just; the regime in question is barbarous; and military action is the only remaining form of action we legitimately expect will work against that regime. The war itself, moreover, is executed with exceptional skill in all parts. It is well planned; all phases of the military intervention, from regime change to constitutional reconstruction, are taken into account. The perfect military agents are selected to run each part of the campaign. We have every right to believe that the end result of this campaign will be a significantly more just society for the citizens of the country we have invaded. To the extent that any human activity of this scale is predictable, we may safely predict a good outcome for this particular war. I do not imagine that any actual military campaign will ever fully match this description. We may, however, examine this hypothetical situation and ask the following question: can this intervention be justified to those individuals whose rights this military action is ultimately designed to defend? I think the answer here is quite likely yes. It is the premise of most justwar theorists—indeed, most political thinkers more generally—that there are some rights whose protection merits an increased risk for death. Survival is not the only value in any plausible theory of political justice. There are some circumstances under which we ethically ought to accept a possible risk for death—first, our own death but potentially the death of others as well. It is important to remember that a just war is not a bloodless war. Innocents die in even the most defensible of invasions.

118

Immigration, Sovereignty, and Plural Citizenships

If this is true, however, we now have the start of a response to the causality argument. Imagine that we are the authors of the perfect invasion discussed above and are asked for help by one of those displaced by our military adventure. The individual claims that since we caused the disruption, the duty to rectify it falls on us—through, if need be, status as immigrant. We seek to give this individual reasons for his circumstances that he could not reasonably reject. What can we say? Our response will parallel the discussion immediately above. If a defense is available for the risk for death, so too should it be available for evil circumstances short of death, including, centrally, displacement and dislocation. We might say to such a person, yes, we have caused you to experience an evil. This evil, however, results from a risk you would have accepted ahead of time, given the importance of the rights this invasion is designed to defend. We have not, therefore, done anything we ought not to have done to you; you have been harmed by our action but not wronged. As such, we do not owe you now any more than any other state owes you. All states able to help you now fall under a duty to provide aid. Our responsibility to you is no greater than any other national government. We ought to provide our fair share of material support for the shared project of helping your plight. The project, however, remains shared; the burden of aid is not exclusively ours. What can be taken away from this imagined conversation? At the very least, I think it shows that the causality argument is in need of amplification and amendment. It is not strictly true that we have an obligation to admit as immigrants the displaced our military actions have created or, better, that we have greater obligations than other states because our military actions caused their displacement. We can imagine circumstances under which we ought to regard such displacement as the evil accompanying a fully justified program of military action. The evil remains a shared problem, but it is no longer true that the military agent bears special responsibility for those it affects. What this means, I think, is that the causality argument depends crucially on showing that any particular military action deviates from our imagined invasion in some particular way. What must be established is not simply that we have caused the displacement but that we have caused it in the pursuit of an unjustifiable war. It will not be, I think, too hard to establish this fact in the present circumstances. Few are left who believe Iraq counts as a just war justly pursued. My conclusion here is intended to amend the causality argument rather than to refute its conclusion. We do indeed have a special duty to the displaced of Iraq. We do not have it, however, simply because we caused their displacement.

Immigration, Causality, and Complicity

119

Under other circumstances, they might have no more claims against us than against any other state in the world. The fact that Iraq is nothing like the rosy scenario discussed above is a crucial part of the argument as to our duties to Iraqi immigrants. Injustice, not simply causality, must be established before such duties are defensible.

Complicity: Undocumented Labor The causality argument addresses the political leadership of a society. In contrast, the complicity argument addresses both the leadership and the civil society more generally. We can divide this argument into two parts. The first argues that the members of civil society are, through their acceptance of the benefits of undocumented immigration, complicit in the presence of the immigrants themselves. The second argues that the leadership of a society, through its failure to police more effectively the borders and prevent unauthorized immigration, is similarly complicit in the presence of undocumented immigrants. In each case, the complicity is taken as constructively equivalent to consent; this consent, in turn, serves as the foundation of an argument finishing with the moral impermissibility of excluding, at the very least, those undocumented workers present within the country’s borders. The complicity argument also has a strong moral appeal. It resonates with many individuals who are moved by the historical evils of social hierarchy and legal exclusion. Neither version of the argument considered, however, is especially strong. In what follows, I will attempt to demonstrate why the argument as it stands is weak; I will conclude, however, with a reconstruction of the argument that, I hope, has more validity. We may begin with the idea that the members of civil society have, through their acceptance of benefits, implicitly consented to the presence of these immigrants in their society. This idea has some currency for the populace as a whole, all of whose members might be taken to benefit from the lowered prices driven by the comparatively low labor costs of undocumented workers. It contains a more specific criticism of business owners, however, without whose wages undocumented labor could not exist. Through their decision to hire undocumented workers, it might be said, such individuals and corporations have implicitly consented to the continued residence of such laborers in society. This argument runs into difficulty because it is hard to infer consent from the acceptance of benefits. This is true, I think, in the general case; if

120

Immigration, Sovereignty, and Plural Citizenships

we think of consent as having the moral value placed on it by, for instance, social-contract theory, then more needs to be shown for such consent to be assumed. These difficulties are even more acute , however, in such cases as those of employers of immigrant laborers, which have two features worth highlighting here. The first is that the ability of any particular employer to change the overall labor practices present in society is vanishingly small. The second is that the consequences of refusing to employ undocumented labor when others are doing so may be drastic; playing by the rules when others refuse to do represents a willingness to undergo economic loss and conceivably bankruptcy. If this description of the employer’s situation is accurate, it seems deeply unfair to represent such employers as having consented to the presence of such laborers within their society. They have chosen their actions within the normative structure that makes undocumented labor profitable. They have not, however, chosen to have that normative structure imposed upon them; their only choice, in the end, is to participate or not to participate in the economy as it has been developed. From that choice, very little normative information may be inferred. What is true of employers is even more powerfully true of consumers. Consumers have few effective means of leaving the economic system within which undocumented labor is embedded. If the choice is between participation in the market economy and personal autarky, it must be said that choosing the former hardly represents the voluntary acceptance and endorsement of current social norms. Inferring consent to undocumented labor then is quite difficult to do; when the alternative is more or less impossible, we are unfair when we draw strong conclusions from apparent consent. The second argument similarly has deep difficulties. It argues that the lack of enforcement at the border is implicitly government consent to the phenomenon of undocumented labor. If the government chooses not to police its borders effectively, it loses the right to exclude. In this analysis, the government has turned a blind eye to the phenomenon of undocumented labor since it is politically advantageous to have an economy in which prices for certain goods are low. It seems, therefore, somewhat unfair for governments to turn against such immigrants when political fashions change. The governments’ implicit consent has, we may think, standing normative consequences. This argument, however, relies illegitimately on the idea that governments have consented to whatever they do not aggressively attack. This idea is difficult to defend. Each state makes its own decisions as to how to use its limited resources in the name of law enforcement. The degree to which a law

Immigration, Causality, and Complicity

121

may be effectively enforced varies based on political decision; we do not infer that all decisions that leave some violations unpunished thereby render the norm itself null. The degree to which various crimes are effectively prosecuted varies, for instance, with some crimes—notably, rape—subject to a comparatively low rate of prosecution. I do not wish to say that such low rates of prosecution are morally defensible. We have strong moral and political reasons to regard some current prosecutorial trends as troubling. All I wish to note at present is that we do not see ourselves as having consented to such crimes simply because our practices of enforcement have the inevitable result that some crimes will go unpunished. Neither can we be said to have consented to undocumented immigration simply because the borders are not impenetrable. These replies are, I think, accurate; nevertheless, they leave an unpleasant aftertaste. The reason for this is that the complicity argument, while not valid in itself, reflects certain valid moral considerations. To see what these considerations are, we need to return to more foundational questions and ask what it is that permits us to exclude would-be immigrants from our political community. We are searching here again for reasons that cannot be reasonably rejected. What can we say to a prospective immigrant whose wish to cross the border has been refused? One of the most common reasons is the culture defense: the idea that we here have a collective form of life, and you are an outsider to this shared national project. Figures as politically diverse as Michael Walzer and Peter Brimelow have found this form of argument attractive. This argument also has a substantial place in popu lar discussions of immigration. The idea of American-ness—what it would require for an immigrant to become American—is an undercurrent in many political analyses of immigration policy. Assume, for the moment, that some such response is in principle available to us as a means of justifying a refusal to a would-be immigrant. We may now return to the complicity argument, for it is here that I believe we may see what truths this argument reflects. When we seek to defend restrictions on immigration in the name of a shared way of life, we must be able to coherently identify this way of life as one within which these prospective immigrants have no place. Otherwise, it would not be possible for this way of life to serve as reason for refusal sufficient to justify this particular exclusion to this particular immigrant. What the argument from complicity gets right, I think, is that it is unreasonable for us to understand ourselves as having a way of life that excludes undocumented immigrants, when their

122

Immigration, Sovereignty, and Plural Citizenships

presence is part and parcel of the way of life we actually share. Having accepted a form of life made possible in part by their presence, we are now unable to coherently use that very way of life as justification for their exclusion. We may think of this argument as ultimately resting upon the individuation of cultures. What we want to defend through immigration policy, in this analysis, is some particular form of life. That form of life, however, must actually exist. Otherwise, what seems like a valid form of collective project begins to look more like either nostalgia or racism—the project of reconstructing a world gone by rather than maintaining the cultural framework of the present community. It is not coherent both to rely on undocumented labor to maintain a certain form of life and to regard the undocumented laborer as alien to that form of life. Thus, I propose the following principle: if a given way of life cannot be maintained without the contribution of an undocumented population, then the maintenance of that way of life cannot justly serve as justification for the exclusion of that population. This principle is what the complicity argument gets right. It recognizes that we are not simply hypocritical but incoherent when we both accept and reject undocumented labor as part of our social world. It understands that the image of the undocumented laborer as alien is a gross oversimplification. Where the complicity argument goes wrong is in understanding this insight through terms of complicity and consent. The proper form of argument instead looks to the possibility of culture and way of life as defenses against immigration. We ought to think not of complicity but of coherence in understanding the relevance of our social acceptance of undocumented labor. This refiguring of the argument, however, makes it somewhat more limited in applicability. It is no longer an independent argument but a response to a particular form of political justification. Moreover, it depends on the outcome of further philosophical speculation about what exactly we defend when we defend our way of life. Different thinkers may pinpoint different things as essential in the identification of what we share as a community; economics, language, culture, and history all have complex roles to play here. This revision then renders the argument from complicity considerably more complex. Such complexity should not be viewed necessarily as a defect; we do ourselves no favors by making our principles more simplistic than the moral landscape they describe. I would note, by way of conclusion, that we should not regret the presence of the causality and complicity arguments in the popular discourse. Although I hope to have shown that each is ultimately unsuccessful, I hope

Immigration, Causality, and Complicity

123

equally to have shown that the instincts giving rise to such arguments are defensible and worth pursuing. Each argument, moreover, leads us away from the excesses of national self-interest and toward the path of greater justice. There is in this debate perhaps a place for even inaccurate arguments in the public forum. I hope, in the present context, only to have made these inaccurate but admirable arguments slightly less misleading.

Chapter 7

The Missing Link Rootedness as a Basis for Membership AYELET SHACHAR

A

t the heart of contemporary immigration debates lies a fundamental tension between the competing visions of “a nation of laws” and that of “a nation of immigrants.” This is particularly evident in the American context. The nation-of-laws camp maintains that people who have breached the country’s immigration law by entering without permission (or overstaying their initial visa) cannot overcome this “original sin,” even if they have lived on its territory peacefully and productively for decades thereafter. The nation-of-immigrants milieu counters by reminding us that immigration is a vital component of the national self-definition of immigrant-receiving societies, such as the United States, Canada, Australia, and New Zealand—the “flesh of our flesh,” as noted historian Bernard Weisberger once put it. For illustrative purposes, this chapter will focus on the United States, which annually accepts the largest intake of immigrants in the world. No less significant, the United States is currently in the midst of an acrimonious debate over immigration reform. Canada, too, might see similar debates erupt in the future, given the skyrocketing increase of temporary workers’ admissions in the early part of the twenty-first century. If some of these temporary entrants remain beyond the terms of their initial visa, Canada might witness the establishment of a population that settles in the country for years yet remains prohibited from the protection of citizenship: the regulations that govern the initial admission are specifically designed to bar the option of ascendance to citizenship and the fundamental protections (such as those against deportation) that come with it.

The Missing Link

125

In terms of policy framing, the nation-of-immigrants position challenges the nation-of-laws perspective that certain entrants to a country should not be set on the road to citizenship. In today’s immigration battles in the United States, it also focuses on finding a path to regularize the status of long-term resident noncitizens, an especially significant project given the estimated ten to twelve million undocumented migrants already in the country. Many of those without status in the United States have U.S.-born citizen children who possess a legal right to remain in the country. This fact makes the prospect of tearing up families and deporting them en masse as bleak as it is impractical. Senator Charles Schumer, chairman of the Judiciary Subcommittee on Immigration, made this point succinctly: although “people are strongly against illegal immigration, they are also just as strongly against turning their country into a ‘roundup republic.’ ” While both sides generally agree on the latter, the main bone of contention between them is the terms of response to the former. The nation-of-laws stance on this matter is firm and relies on an intuitive appeal: if unlawful admission (or unauthorized overstay) is wrong, then “why should people who violated the law be given an opportunity ‘of converting to legal status and earning a path to citizenship’?” Other proponents of this approach go further, arguing that such legalization or “amnesty undermines the rule of law. In the first encounter these people had with our country, they broke our law.” Although bearing moral force, the Achilles heel of this position is its reluctance to see anything beyond the first encounter. It also displays a want of viable alternatives, assuming (as I think we should) that a “roundup republic” option is both unrealistic and undesirable. Under the incumbent situation, “[migrant] workers who seek only to earn a living end up in the shadows of American life—fearful, often abused and exploited. When they are victimized by crime, they are afraid to call the police, or seek recourse in the legal system.” Many, including government officials, have declared this situation “wrong” and “not the American way.” The nation-of-immigrants perspective has a ready-made and potent response to these types of observations. According to its proponents, if America is to remain an open and welcoming nation, it must create a path for undocumented migrants to emerge from the shadows and gain legal status as part of a comprehensive—and humane—immigration-reform project. This position is supported by a wide range of civil society, immigrant, labor, and interfaith organizations. Alas, an emphasis on compassion and human dignity is unlikely to convince the hard-line restrictionists that make up a section of the nation-of-laws bloc. They view any such concession as rewarding

126

Immigration, Sovereignty, and Plural Citizenships

lawbreakers with “the most coveted asset on the planet—permanent residence in the United States.” Thus, we are back to square one in this ideological standoff. The nation-of-laws and nation-of-immigrants positions appear irreconcilable, a dangerous prospect given the momentous social and political ramifications implicated in this tremendously high-stakes debate.

Opening up New Channels for Inclusion in the Political Community In the following pages, I propose a way out of this stalemate, setting out a new theoretical framework that emphasizes the importance of rootedness as a basis for legal title. For those barred from legal membership under traditional principles of citizenship acquisition, the rootedness framework offers a path for earned citizenship arising from the existence of already established, real, and genuine ties toward the political community. The idea of emphasizing actual, continuous, and peaceful presence on a territory as the basis for title finds grounding in various branches of democratic theory that emphasize inclusion and accountability. It also draws significant insights from property theory and doctrine. Despite the centrality of rootedness in these core social and legal arenas, this concept has not gained similar traction in present debates over immigration. This essay seeks to address this oversight. The idea of taking root as a basis for earning entitlement has been familiar to the common-law tradition for centuries. It was brilliantly captured in Oliver Wendell Holmes’s resounding words: “A thing which you have enjoyed and used as your own for a long time, whether property or opinion, takes root in your being . . . , however you came by it.” Placing rootedness at center stage also fits with the growing recognition in law (from modern contract to property theory, family law to private international law) that changes in relationships and expectations over time often can necessitate shifts in legal status. It further offers a concrete legal method to fulfi ll the ideal of inclusive participation in a democratic society. The emphasis on rootedness possesses yet another significant advantage: it holds the key to overcoming the nation-of-laws versus nation-of-immigrants standoff that has repeatedly frustrated attempts at comprehensive immigration reform. I argue counterintuitively that the way out of the immigration stalemate is to turn the restrictionists’ argument on its head, demonstrating that not only as a nation of immigrants but also as a nation of laws do we have an obligation to provide a venue for regularizing the status of those who have

The Missing Link

127

already become part of the country’s economic and societal fabric. This rootedness approach emphasizes the importance of real and established links to the community, which are externally observable and legally identifiable, as a new root of title to citizenship for those who already “practice” it. This framework has the benefit of relying not just on considerations of goodwill or human compassion, as most arguments in favor of legalization do. Instead, it adds a thus-far missing analytical link that reveals an existing legal basis for defending a regulated path to earned citizenship. To address the main argument advanced by the nation-of-laws opponents to regularization, namely, that “all of them who advocate for [an earned path to citizenship] are undermining the rule of law,” I employ the technique of reasoning by analogy. If we can demonstrate that even in the realm of private property—the ultimate Blackstonian bastion of “sole and despotic dominion”—individuals who initially resided on a property without permission can later gain legitimate title to it under specified legal conditions, then a similar logic can apply with at least equal force when the title at issue is a government-issued new property-like good: namely, access to the public entitlement of political membership, a state-dispensed good rather than a privately held chattel. This permits us to see earned citizenship in a fresh light: not as a handout or act of charity but as a legal title that arises from the existence of already-established, real, and genuine ties to the political community. The emphasis on rootedness animates a new legal principle, jus nexi, which is defended here as an auxiliary path for inclusion in the polity that could operate alongside the established principles of citizenship acquisition: by birth on the territory ( jus soli, encoded in the Fourteenth Amendment of the U.S. Constitution and the territorial birthright provision of Canada’s Citizenship Act) or birth to a citizen parent ( jus sanguinis, established by statutory provisions for membership by lineage). The jus nexi principle offers a remedy to some of the most glaring inequalities of the current situation in which those who are ineligible for a nation’s citizenship according to traditional principles—despite sharing in its society and economy— remain shut outside the recognized circle of political members and are denied the basic security and opportunity that is associated with full and equal citizenship. The urgency of reform is undisputed. Almost everyone agrees that the current immigration system in the United States is broken. To this realization we must add that in a world of increased cross-border mobility, the traditional territorial ( jus soli) and parental ( jus sanguinis) principles for

128

Immigration, Sovereignty, and Plural Citizenships

allotting membership no longer serve as sufficiently refined predictors for determining who shall actually reside in “this or that country.” This leads to significant problems of over- and under-inclusion. My focus here is on the latter dimension, arguing that instead of merely focusing on the legalese of a person’s immigration status, there must be a point in time in which the nexuses between right and duty, actual participation and membership status, social connectedness and political voice, gain weight and sway. This shift in perspective enables the development of a legal framework that accounts for actual, on-the-ground (or “functional”) ties that give rise to the jus nexi citizenship principle. I call this new principle jus nexi because, like jus soli and jus sanguinis, it communicates the core meaning of the method through which political membership is conveyed: by connection, rootedness, or linkage. The shift to jus nexi easily gains traction from the familiar ideal found in the nation-of-immigrants position of offering a fresh start to newcomers. The innovation of the rootedness argument lies, however, in its simultaneous reliance on a quintessential nation-of-laws rationale: the idea that we must have a rational and defensible legal system that determines who is (or ought to be) defined as a rights-holder in the first place and under what conditions. This idea is what distinguishes right from might, the rule of law from anarchy or tyranny. Without the provision of title and protection by law, as Immanuel Kant famously observed, we are doomed to a life of lawlessness where no one’s freedom and liberty is ever secure. The nation-oflaws argument thus can be “recovered” from the stronghold of its current restrictionist and doctrinaire vein. Here the conceptual borrowing from contemporary theory and jurisprudence in property proves most helpful. It permits developing an equitable or remedial basis for gaining political membership for those who cannot benefit from the existing citizenship and immigration principles and remain barred from naturalization under current law. The jus nexi principle offers an improvement to the present setup: it accounts for the significance of an immigrant’s actual community membership and the social fact of her attachment to the nation rather than simply relying on the initial moment of entry that fails to account for subsequent immersion and changed expectations over time. As I detail in the following section, the rootedness framework corresponds with the emergent emphasis on social-relational notions of title and membership, requiring that we “look to the underlying human values that property serves and the social relationships it shapes and reflects.” It permits a revival of earlier scholarly attempts to cross-fertilize notions of sover-

The Missing Link

129

eignty with those of property, although my analysis reverses the arrows: I use concepts found in property and related private-law fields to both inform and foster a discussion about the possibilities for public-law reform of citizenship and immigration policy. If we deploy the influential terminology coined by Charles Reich almost half a century ago in his landmark article “The New Property,” we soon realize with some surprise that citizenship— the legal link between the individual and the state—has become “consolidated and reinforced”: guaranteeing security and opportunity to those fortunate enough to hold it as a public, legal entitlement. I also build upon my previous writings on the enduring worth of political membership in today’s world, which highlight the global distributive implications of treating citizenship as a special kind of inherited entitlement. Here I turn my gaze to the domestic arena, arguing that this framework of using analogous insights drawn from property theory yields unexpected insights for our thinking about membership in this context as well and provides the framework for exploring some creative solutions. While the argument I develop bears immediate policy implications for contemporary debates in the United States, the analysis is intentionally cast in broader terms. It draws upon a set of comparative and international examples, as well as engaging with core insights from traditional common-law reasoning and contemporary political theory. This inquisitive method permits us to shed fresh light on some of the oldest and most fraught moral and legal dilemmas facing any immigrant-receiving nation: defining who belongs, or ought to belong, within the circle of full membership and according to what criteria.

Jus Nexi: Rootedness as a Basis for Membership It is against the background of today’s charged nation-of-laws versus nation-of-immigrants debate that the argument in favor of a shift toward a jus nexi, or rootedness, principle of membership acquisition, is advanced. Instead of making citizenship turn solely on the initial, almost frozen-intime moment of entry, some proximity or nexus must be made between taking root and pursuing full membership status in the polity and an actual share in its rights and obligations. This requires us to expand the analysis beyond its current focus on the circumstances of admission by taking into account the establishment of genuine ties and actual stakeholding in the political community.

130

Immigration, Sovereignty, and Plural Citizenships

Placing rootedness at center stage counters the absolutist stance that asks us to refer back to the initial act of unauthorized entry or visa overstay. The jus nexi call for exploring the actual, or functional, conduct and agency of the person seeking legal status in the political community is consistent with the shift away from purely formalist conceptions of title that are familiar to us from other legal fields (from contracts to property to family law) where social-relational interpretations now grant protection to parties in nontraditional contexts. In the same vein, equitable doctrines, such as laches, constructive trusts, statute-of-limitations waivers, and estoppels—to name but a few examples—permit “making good” the imperfection or otherwise incomplete form of title acquisition. The kernel of these approaches is that rights may flow from the way a relationship functions rather than remain forever confined by its legal form.

Citizenship as New Property Property is always subject to legal and philosophical contestation. Modern theories of property apply to concrete and tangible objects (my car, your house) but increasingly also refer to a host of more abstract or “intangible” entitlements (shares in a company, intellectual property in the form of patents and copyrights, professional licenses, genetic information, even folklore practices). Changes in human relations and social values constantly modify our understanding of what counts as protected property. Important questions of allocation come up when we begin to categorize certain relationships as legal property: who owns what and on what basis? Ownership and possession of property affects people’s livelihoods, opportunities, and freedoms. Conflicting interests concerning access, use, and control of goods are therefore likely to arise, particularly with respect to items that are scarce relative to the number of claimants or demands that human desires place on them. Jeremy Waldron usefully formulates property relations as offering a “system of rules governing access to and control of [scarce] resources.” When applying these understandings to citizenship, perhaps the most obvious parallel is that immigration laws create precisely such a system of rules governing access to and control over scarce resources—in this case, membership rights (and their accompanying benefits). This gate-keeping function of citizenship is well recognized in the literature on political membership: “Every modern state formally defines its citizenry, publicly identifying a set of persons as its members and residually designating all others as non-citizens. . . . Every state attaches certain rights and obligations to the

The Missing Link

131

status of citizenship.” Even in today’s world of increased globalization, determining who shall be granted full membership in the polity still remains an important prerogative of the state. Gate-keeping is, however, never absolute or unrestrained, whether in citizenship or in property doctrine. When we explore the realm of citizenship, we soon recognize that what each citizen holds is not a private entitlement to a tangible thing but a relationship to other members and to a particular (usually national) government that creates enforceable rights and duties. From the perspective of each member of the polity, reconceptualizing his or her entitlement to citizenship as a special kind of property fits well within the definition of new property. This influential phrase was coined by Reich, referring to public-law entitlements as serving the traditional privatelaw purposes of ensuring a baseline of security and dignity to citizens under market-based economies. Unlike traditional forms of wealth, which were held as private property, valuables associated with the public title of citizenship derive specifically from holding a legal status that is dispensed by the state alone. Such entitlement to the status of membership in turn bestows a host of privileges and protections (as well as certain civic obligations) on its holders. Although the value of citizenship is communally generated, the entitlement conferred on each member is individually held. This intricate combination of individual and collective aspects makes citizenship a particularly complex type of new property-like entitlement with “priceless benefits,” as the U.S. Supreme Court memorably declared, adding that “it would be difficult to exaggerate its value and importance.” In this legal structure, the state operates as generator and trustee of membership titles, with the critical enabling implications on the life opportunities of its individual members that these titles confer. When citizenship is conceived in this way, the distinction between a narrow (or “rivalrous”) notion of property and a broader one that emphasizes social relations and stewardship becomes highly relevant.

Rivalrous and Social-Relational Conceptions of Property The rivalrous conception of property has become synonymous in both law and economics literature with the values of tradability and alienability, otherwise identified with “sole and despotic” ownership. According to this notion of property, each owner has near-absolute dominion over his or her assets and is free to dispose of these as he or she sees fits. In contrast, a

132

Immigration, Sovereignty, and Plural Citizenships

competing and older vision of property is regaining renewed attention, which I wish to bring to the fore in the context of citizenship, labeling it the broad (or “social-relational”) conception. Here, property is seen as part of a web of social and political relations, wherein people depend on others “not only to thrive but even just to survive.” This view dates back to Aristotle and treats property not as an end in itself but as a means toward advancing human flourishing and building relations of trust. As a collectively generated good that creates a complex set of entitlements and obligations among various social actors, citizenship offers a textbook example of re-emerging interpretations of property as constituting a web of relations that are imbued with obligations toward promoting the public good rather than merely satisfying individual preferences and entrenching existing power relations. This broader perspective permits us to see citizenship regimes not only as generating intricate rules that define the allocation of membership but also as bearing considerable effects on the distribution of voice and opportunity among those residing on the same territory who nevertheless do not share equal access to the government-distributed status of membership. These inequalities are particularly disturbing given that access to the said social good is determined almost exclusively by circumstances beyond our control: where and to whom we are born, or under what circumstances our parents crossed the border many years ago. To acknowledge property (and citizenship) as a human construct that is not impervious to change is to open up the existing system of distribution to critical assessment and innovation. The answer to today’s immigration problems lies not in “devaluing” citizenship or watering down its content or declaring its imminent “death” or “withering away,” as some have suggested. Instead, what is required, and urgently so, is a diversification of the methods of membership title allocation— specifically, the adoption of a framework for inclusion that reflects a socialrelational conception of citizenship and thus complements the traditional jus soli and jus sanguinis mechanisms for defining the legal boundaries of membership. That foundation is defined here by rootedness, or the jus nexi principle of membership assignment.

Rootedness Defended The jus nexi principle is informed by progressive reconceptions of property and related fields of law, spanning from contracts to family law to conflict of laws. These influential accounts have rejected the traditional emphasis on static, blanket formalism, highlighting instead the value of an actual, real,

The Missing Link

133

everyday, and meaningful web of relations of human interaction. Instead of focusing on the formal creation or legalese (of contract, marriage, and so on), this type of analysis looks to acts and conduct in light of the circumstances in which parties operate in order to determine whether or not an implicit promise, property transfer, or permanent relationship has been established by deed. This approach is widely employed in a host of contemporary legal arenas. Consider, for example, the status given to nonmarital cohabitation relationships. Instead of applying a formalist legal interpretation under which such relationships were categorically unrecognized and unprotected, today many jurisdictions treat them as generating a range of actual rights and obligations between partners as well as toward third parties, even without the couple entering into a formal agreement or undertaking registration. On this reading, such factors as the pooling of resources or the sharing of a household for an extended period become evidence of the seriousness of the relationship and, in turn, its legal validity. Another example is found in determinations concerning the best interests of the child for custody or visitation purposes, which today are governed by factual, attentive, case-by-case decision-making procedures rather than a reliance on fi xed and gendered presumptions (as was the case in the past). The growing use of the constructive trust to achieve equitable distribution of shared property among partners based on imputed duties of good faith and fair dealing in the absence of a formal agreement offers yet another illustration of this larger trend. Consider also the relevance of one’s place of abode for determining tax liability for foreign residents, or in defining eligibility for local voting rights, admission to public schools, access to municipal ser vices, and so on. There is also a surprisingly rich body of comparative and international jurisprudence that provides support to the idea of reinvigorating definitions of membership by adopting a social-relational, genuine-connection criterion for defining citizenship. Consider the influential landmark 1955 Nottebohm decision of the International Court of Justice in which the court held that citizenship is not “merely an empty title”; citizenship must reflect instead “a legal bond having as its basis the social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred . . . is in fact more closely connected with the population of the [s]tate conferring [citizenship] than with any other [s]tate.” The International Court of Justice articulates several different factors that need to be taken into consideration

134

Immigration, Sovereignty, and Plural Citizenships

in identifying whether a real and effective link has been established between an individual and a nation, granting that the weight of these factors might vary from one case to the next. This list of factors, which is illustrative rather than conclusive, includes “the habitual residence of the individual concerned but also the centre of his [or her] interests, his [or her] family ties, his [or her] participation in public life, attachment shown by him [or her] for a given country and inculcated in his [or her] children, etc.” This center-of-interests test is pragmatic and social relational; it requires evidence of the establishment of observable, meaningful links between the individual and the political community. Such a connection need not rely on birthright; instead, it traces the attachment between the individual and the political community on the basis of factual membership and affected interests. As one commentator observes, “No matter how strongly our formal laws deny it, our conduct [of having persons live, work, and participate in a community over many years] creates the obligation.” This incremental process, in which one’s center of life-gravity shifts, is central to the jus nexi principle. By focusing on a “genuine connection of existence, interests, and sentiments” rather than merely formal titles, jus nexi provides substance to the idea that real, effective ties fostered on the ground deserve some form of legal recognition—here, by granting a path to earned citizenship based on the social connectedness that has already been established. Such an approach enables us to welcome into the political community those who have already become social members based on their actual participation in the everyday life and economy of the jurisdiction and through their interdependence with its legal and governance structures. As Hiroshi Motomura eloquently observes, this emphasis on the ties that bind allows law to “take time into account by acknowledging and giving legal meaning to what has already occurred.” Instead of focusing on the initial moment of entry or asking whether a person happened to have been born in a given country, the more significant set of questions under the jus nexi framework (understood as a complementary principle to jus soli and jus sanguinis) would include the following: where he or she actually lives; where his or her center of interests lie; and where, as a result, to place “the legal bond [of citizenship] having as its basis the social fact of attachment.” 

Democratic Accountability The importance of real, genuine links to a community as a basis for membership entitlement and political participation is also increasingly

The Missing Link

135

recognized by political philosophers and democratic theorists. As Tomas Hammar observes, “In affluent societies being a member of [the country’s citizenry] is in itself a valuable social asset which is, however, taken for granted by those who already possess it.” The incredibly important propertylike entitlement that we call citizenship “is distributed by [those already counting as citizens] to others, who have not got membership but who would like to get it.” Given this framework, the challenge is to determine the correct regulative principle for such distribution, which, as John Rawls once put it, “depends on the nature of that thing [distributed].” In the context of our discussion, any new principle for bestowing citizenship needs to correspond better with the fact and intent of membership as well as the actual content associated with this legal status. The rootedness principle best addresses situations in which a permanent inconsistency occurs between lack of legal status and the fact of social attachment and an intention to stay. As an equitable framework, jus nexi gives legal validity to the significance of the involvement and stake of long-term residents in the life of the polity, acknowledging these real and effective ties in defining access to the collective good of citizenship for the individuals involved. In a world of growing mobility across borders, we can no longer rely merely on transmission by birthright or ongoing exclusion based on the remote moment of entry, important and meaningful as it might be for determining the initial (lack of) membership status. Instead, any reflective principle of citizenship allotment that fulfi lls the ideals of democratic inclusion and accountability should take into account the interdependence that has developed over time between an individual and society. This requires us to ask whether “an individual’s long-term circumstances of life link her own well-being to a par ticular polity.” If the answer is affirmative, serious consideration must be given to granting her the security and dignity that comes with sharing in the collective rights and responsibilities of citizenship. The ties that bind—factors sufficient to establish retrospective legal recognition— may include instances of civic engagement, such as being an active parent in a child’s school, volunteering for community ser vice, or caring for a needy relative. This kind of determination requires probing beyond the formal status of a person’s admission into a country, looking to the actual conduct of the person in the context of her social attachments and community ties. This shift in perspective flows not just from crystallized positive legal rules and procedures but also from the more foundational values associated with being a constitutional democracy—a regime that is committed to equality among its members and that ideally draws its legitimacy from including all

136

Immigration, Sovereignty, and Plural Citizenships

those habitually affected by its laws and institutions in the decision-making body of members. Categorically denying long-term residents even a chance at establishing eligibility for membership fails to serve this democratic ideal. It further risks transforming settled migrants into pariahs, thus eroding the very preservation of the society at large as a community of equals. This possibility should deeply concern not only those in the nation-of-immigrants camp but also those who hold dear the principles of a nation of laws. We are all too familiar with the painful history of exclusion from citizenship, especially on the basis of race and gender that persisted in different forms for almost two centuries following the birth of the republic. The United States, as American citizenship scholar Rogers Smith elucidates, now has a “potent ‘obligation to include’ that flows from a combination of . . . ethical commitments and [the country’s] past and present roles in constituting the identities of many persons whom [it presently does] not recognize as full citizens or as members at all.” As the interdependence between the individual and the political community deepens, the claim for moving away from today’s hyperlegalistic paradigm toward a jus nexi approach becomes stronger. The government’s prerogative to remove and deport arguably becomes restricted, too. In the old jargon of private law reasoning, “in the eyes of equity,” providing a route to membership (rather than advancing the formalistic resort to deportation) under these circumstances offers a more apt resolution; otherwise the more powerful party, the government, “fail[s] to do what is just.” As historian Mae Ngai observes, older immigration policies that were once prevalent in American history (before the restrictive turn that began in the 1920s) included statutes of limitations that restricted the government’s prerogative to deport those who have already settled in the country as well as various discretionary mechanisms for individuals to adjust their status in cases of long-term residence, marriage to a citizen, or hardship resulting from deportation. These mechanisms served in the past as important correctives to the otherwise harsh effect of the black letter of the law and were seen at the time “as consistent with the general philosophy of the melting pot.” Today’s democratic argument in favor of reviving such restrictions on the power to exclude relies less on the melting-pot ideal and more on the view of individuals as agents who ought to be given an opportunity to participate in shaping the laws and political institutions that affect them most. The point is to ensure that the government is fulfi lling its obligation to include (in Smith’s terminology) by providing a voice in the political process to those whose identity and life prospects largely have been

The Missing Link

137

constituted by its laws and institutions. This can be achieved by giving them a path to earned membership on which they can embark if they so wish. Fulfi lling these equitable obligations does not conflict with establishing or sustaining distinct political communities that define, uphold, and enforce membership boundaries and procedures for regulating immigration. What it does demand, however, is that long-term residents who are already present in the country and have become part and parcel of its social fabric and economy are not permanently excluded from coauthorship of the laws to which they are subject. This is a variant of the oldest participatory and constructive themes of American citizenship, defining and redefining “We the People.” In a democracy, the beauty of the definition of the people or the citizenry body is that it is never closed or fully settled, especially not in such diverse societies as the United States. This makes ever more pressing the need to close the gap between the social reality of membership and the legal bar against admission, especially if we wish to avoid creating the reality of a permanent pariah class of noncitizens. The democratic accountability ideal holds that those who are continuously and habitually subject to the coercive powers of the state must eventually be given the opportunity to gain a hand in shaping its laws. Opening up a path to earned citizenship is crucial for another reason: it permits the admitting society to maintain itself as a community of equals, increases political voice, and reduces social and economic marginalization.

Earned Citizenship To define membership in a manner consistent with the concept of rootedness, we can no longer focus only on the moment of entry as determinative of legal status. Instead, jus nexi demands that we focus on the “actual relationships the individual has developed with a society: a family, friends, a job, association membership, professional acquaintances, opportunities.” This illustrative list of factors was defined many years ago by Alexander Aleinikoff, one of America’s most prominent immigration and citizenship law scholars. It can be further extended and updated to include additional connecting factors, such as volunteering on school boards, providing community ser vices, contributing to the work of religious organizations, and so on. This more varied set of links is designed to ensure a more diverse pool of potential recipients; if, for example, only paid participation in the labor force or business ownership is counted toward proof of establishing the social fact of membership, then we run the risk of disadvantaging stay-at-home

138

Immigration, Sovereignty, and Plural Citizenships

parents (particularly women) and others whose life circumstances may prevent them from fully engaging in the formal, paid marketplace. With this more expansive definition of actual communal ties, even the severity of an initial unlawful entry may be partly diminished over time if one’s status is later adjusted; the deeper the interdependence, the stronger the claim for embarking on the social-relational rootedness-based path to earned membership. These examples illustrate that the logic of jus nexi is already reflected (without being so named) in our legal and political conceptualization of membership. An emphasis on rootedness is important for another reason: it offers a coherent explanation for certain aspects of legal doctrine and positive law that otherwise appear sporadic and without proper conceptual basis. Consider the fact that a period of actual and continuous residence in the United States has been part of the process of acquiring post-birth citizenship in America ever since the enactment of the original Naturalization Act of 1790, one of the most significant and earliest statutes adopted by Congress. The 1790 Naturalization Act held that a newcomer of good moral character who was willing to take an oath to support the Constitution had to first establish that he had “resided within the limits and under the jurisdiction of the United States for the term of two years” before gaining eligibility for citizenship. The residency requirement was later increased from two to five years, and despite the many ups and downs in the history of immigration to America, this five-year requirement has proven remarkably stable and persistent. It remains prescribed by U.S. naturalization law to this date. Although prolonged residence typically plays an important role in defining real and effective links, jus nexi takes seriously the idea that inclusive, democratic citizenship should reflect a nexus between rights and duties as well as between membership and social attachment rather than one that immediately ties long-term settlement with an interest in becoming a citizen. This last point distinguishes the principle of jus nexi from ex lege, or automatic naturalization for anyone whose presence in a polity is deemed permanent. Like the ex lege idea, the jus nexi principle is normatively designed to shrink the gap between partaking in actual membership and gaining political voice; it views every long-term resident as a citizen in the making. By contrast, jus nexi does not force membership on anyone; it requires longterm residents to display both intent and effort to join the collective if they choose to embark on the path of earned citizenship. The rootedness principle creates a presumption of inclusion on behalf of those whose life center has already shifted, but it requires individuals to act in order for this eligibility

The Missing Link

139

to affect their citizenship status. What is required here is not mere physical presence on the territory but also the expression of will to become a full member. In this way, jus nexi differs from a conception of membership that makes territorial presence the all-or-nothing criterion. It thus escapes the autonomy-diminishing aspect of an automatic, ex lege incorporation of individuals into the polity based on the sheer passage of time. In this respect, jus nexi allows both democratic accountability and political equality for those whose well-being is directly affected by the legal authority of the polity—namely, those who reside within its jurisdiction and are regularly subject to the full extent of its coercive powers. Related processes of gradual incorporation through participation in the life of the polity are familiar to us from the naturalization procedure, which typically requires a newcomer to fulfi ll a five-year mandatory residence requirement before she can apply for citizenship. The focus here is on the experience of membership, for which, in the words of one official report on citizenship, “there can be no substitute.” What jus nexi demands is a closer correlation between democratic voice, factual membership, and citizenship entitlement. It offers a path for those whose lives have already become deeply entwined with the bounded community in which they have settled to enjoy full legal rights and protections, allowing them to earn the title of full and equal members.

Jus Nexi in Action The current stalemate extracts a profound human toll. Look around. Each year, approximately 65,000 undocumented students who reside in the United States without legal status graduate from high school in similar circumstances: they have lived in the country for at least five years and have received much of their primary and secondary education here. They were young babies or toddlers when brought to the United States by a parent entering without permission or by a family overstaying the time-limited period of a valid entry visa. In either case, the children, through no choice or fault of their own, become categorized as unlawful or undocumented migrants. The scholarly literature refers to these individuals as members of the 1.5 generation: “They are not the first generation because they did not choose to migrate, but neither do they belong to the second generation because they were born and spent [a brief] part of their childhood outside the United States.” Under current immigration law, there is no path to regularize their

140

Immigration, Sovereignty, and Plural Citizenships

status. Many members of the 1.5 generation “have been in this country almost their entire lives and attended most of their K-12 education here.” Yet, because they are in the country without legal status, “their day-to-day lives are severely restricted and their futures are uncertain. They cannot legally drive, vote, or work. Moreover, at any time, these young men and women can be, and sometimes are, deported to countries they barely know.” Recognition of this situation has led to repeated attempts to respond to the hardships faced by the 1.5 generation in the form of legislation that encapsulates the core idea of rootedness as the basis for legal title. This proposed legislation, the DREAM (Development, Relief and Education for Alien Minors) Act, consists of several cumulative provisions that would permit undocumented students to gain conditional permanent resident status if they arrived in the country before the age of sixteen, have been in the country continuously for at least five years, and are of good moral character. The DREAM Act is designed to overcome the difficult situation that these individuals face under current immigration law, which provides them no route to establish citizenship in their new home country. Their only hope to escape an uncertain future and the fear of deportation depends on resolving the gridlock between the nation-of-laws and nation-of-immigrants policy perspectives. Under current immigration law, if a child is brought into the country undocumented (or falls out of status while in the country), there is no legal method available to overcome the initial illegality of her entrance if her parents themselves are not granted legal status. Put differently, members of the 1.5 generation are ineligible to gain access to American citizenship by themselves. As long as their parents are in the country without permission, so, derivatively and through no fault of their own, are children who were born outside the United States. The interest in seeing the DREAM Act pass is therefore not limited to its potential beneficiaries. The larger political community, too, has an interest in avoiding the creation of a permanent underclass of long-term residents who are by definition excluded from membership, an outcome that would betray the nation’s hopes for democratic accountability and the promise of equal opportunity. Individuals facing this uncertainty of status are keenly aware of citizenship’s value. Members of the 1.5 generation, tired of repeated legislative failures to address their precarious situation, have recently turned to political mobilization and democratic action, which in itself demonstrates just how deeply the admitting society has shaped their horizon of expectations and the lexicon they now utilize to resist the pending threat of deportation.

The Missing Link

141

This grassroots campaign for legalizing undocumented students in the United State has its cues unmistakably taken from America’s rich civil rights traditions and imageries: they engage in sit-ins, march to Washington, escape the shadows by telling their own compelling life stories publicly (while risking harsh consequence by self-identification as one of those lacking legal status), under the slogan of “unlawful and unafraid.” These students draw upon the emancipatory language of citizenship and the promise of a fresh and fair start—the quintessential American Dream—showing just how much this country in which they have grown has shaped them in its image, to challenge their own exclusion from its promised land of immigration. They are living proof of the human costs associated with “exclusion from within” and the misguided vision of separating the nexus of membership from access to the citizenry body, for those who wish or need it desperately. Like so many other once-excluded groups and constituencies who were barred from formal citizenship (on the basis of race, gender, sexual orientation, and so on), the appeal here is to the justice of reforming existing legal categories and their harsh implementation so that the promise of equal membership is extended to new subjects and new domains. For these DREAMers, as they are known, the adoption of jus nexi-like mechanisms for gaining access to full membership in the community in which they live their lives would not only remove the hanging sword of deportation and expulsion from the only country they know as home. It would also grant them a tangible and concrete measure of freedom and security that comes with the acquisition of something so precious and hard to earn for those not initiated by birth into the ranks of entailed citizenship: full and equal membership. Members of the 1.5 generation without doubt represent the most compelling case for applying jus nexi, matching these individuals’ legal realities to social transformations that have already occurred on the ground and putting right a series of wrongs that are not of these young people’s making. For the generation trapped in the midst of the nation-of-laws and nation-ofimmigrants stalemate, the rootedness path to earned citizenship offers a lifeline. It can spell the difference between a bright future, filled with opportunity, and the grim reality of a detention center and a pending deportation order. Gaining access to citizenship under the proposed rootedness principle is not designed to be effortless. Nevertheless, it overcomes the core deficiencies of the present situation by making access to full membership reflective of human agency and actual behavior, in lieu of the fi xed, predetermined, and irrevocable refusal that is all that the law currently offers these young people. Such denial of opportunity due to circumstances that are beyond

142

Immigration, Sovereignty, and Plural Citizenships

our control (where or to whom we are born, or under what conditions we are brought into another country at infancy) goes against basic liberal and democratic principles that seek to minimize the impact of social and structural hierarchy and to relieve us of the weight of accidents of birth. It punishes children for the deeds of their parents, lacks proportionality and human compassion, and is blind to processes of immersion and changed expectations that have already occurred. Instead of a chance to fulfill the American Dream, these young people face expulsion, uprooting, and life-long banishment from the United States. Adding a jus nexi route to citizenship offers the most principled and practical hope for resolving their plight. Lawful admission is generally viewed as a necessary step toward the acquisition of citizenship by those without hereditary membership entitlement. But what happens if this initial condition of authorized admission is violated? Perhaps nowhere is the debate between the nation-of-laws and nation-of-immigrants camps as vexing and contentious as it is around the question of how to treat long-term resident noncitizens who have either entered the country as adults in a clandestine fashion or overstayed a temporary visa. Unlike children who had no control over their parents’ decision to cross the border or those who initially followed the official admission process, the legal status of undocumented adults is “assumed to be a result of their own, voluntary, action.” As such, they are perceived to be responsible, at least in part, for the predicament they currently face as “irregular” noncitizens. Yet opinions diverge significantly about the implications of this initial conduct of unlawful entry or stay. As legal scholar Linda Bosniak eloquently observes, there is “a persistent uncertainty about who really is at fault when it comes to undocumented immigration, and who should properly bear its associated costs.” Advocates of the nation-of-laws position have adopted an absolutist stance in response to this question. They firmly hold that unauthorized migrants should be barred from admission and denied the rights and privileges of membership as a result of their “original sin”: they broke the law by entering without permission and must therefore be barred from any path that could enable them to regularize their status. Some even go a step further and argue that unauthorized migrants should be deported back to their countries of origin, irrespective of any hardships that such removal may cause or the web of relationships they have established in the new polity. By contrast, proponents of a nation-of-immigrants vision emphasize that this country offers its new arrivals the chance of a fresh beginning. They further quibble with the categorization of undocumented entrants as “illegal aliens,” arguing

The Missing Link

143

that, on moral grounds, human beings cannot be defined as illegal. This sentiment is well captured in such slogans as “no one is illegal” or in calls for granting “status for all.” In a rebuttal, however, a sophisticated nation-of-laws backer might point out that it is not the person who is deemed “illegal” but rather the act of entering the country that was unlawful—a point that, at least technically, is valid in a world of regulated migration like our own. Alas, in today’s charged political climate, this answer does not stand up to scrutiny. The strict anti-immigration law passed by Arizona and “copycat” legislation by other states exemplify this last point. What can be done? We saw earlier that there are multiple justifications for adopting a new framework of analysis that emphasizes a social-relational rooted-based path for securing membership. Unlike the absolutist claim of the nation-of-laws, holding that the law does not permit alterations to one’s status and situation based on the combination of conduct and passage of time, there is a wide range of equitable remedies that do just that. Instead of fi xating legal analysis only on the initial moment in time, equitable principles supplement and respond to the effect of use, time lapse, and actual conduct, with the potential to alter the rights and obligations of related parties. This counters the image of an unforgiveable “original sin” (here, overstaying a temporary visa or entering into the country without authorization) that is dear to many who resist the idea of providing a regulated path to earned citizenship. Their claim is that nothing can overturn or mitigate the initial breach of the country’s immigration law, which is nonetheless a civil (not a criminal) public statute. Yet examples drawn from different fields of private and public law demonstrate that painstaking consideration is paid to changed factors and expectations that evolve over time, sometimes even ripening to legal title. This point is crucial for our argument because it offers a legally and historically established counter to the “absolute dominion” stance proclaimed by the hardliners in today’s citizenship debates. What makes the rootedness logic particularly compelling for our discussion is the fact that it cannot be easily dismissed as insignificant or implausible as a remedy. It has been part of legal theory and doctrine for centuries, dating back to the earliest days of the English common law. If the “original sin” of unlawful admission can be forgiven in the context of property, where the titleholder is presumed to have “sole and despotic dominion . . . in total exclusion of the right of any other individual in the universe”—to evoke Blackstone’s magisterial words—then surely a similar logic can apply with equal force to the relations between democratic governments and those who have already established long-term, productive residence in their prosperous

144

Immigration, Sovereignty, and Plural Citizenships

territories. This permits a promising way to finally dismantle the gridlock by providing a foundation for reform that can appeal not only to those in the nation-of-immigrants camp but also to adherents of the nation-of-laws position, especially given that in the context of citizenship the inclusion of newcomers does not dispossess the existing participants or titleholders of their rights and protections. As with the argument that derives from from democratic inclusion, the acquisition of earned membership status would not be open to anyone; happenstance presence in the country, for example, would not qualify a person for the relief of earned citizenship. Ultimately, it is not the mere act of entering into the territory that counts. Rather, “the ties that non-citizens develop over time” are what matter. Such an emphasis on associational ties fits flawlessly with the logic of jus nexi, providing a remedy only after expectations to stay have been established—a process that requires settlement and the passage of a significant amount of time. The “obligation to include” here fits well with a familiar distinction—in property and citizenship law—between initial entry, which any state is permitted to regulate, and the subsequent decision of how to treat long-term settled noncitizens who already reside on the territory, participate in its society and economy, and are subject to the effects of the nation’s coercive legal authority. The nation-of-laws position consistently blurs the latter with the former, as if the initial admission must ultimately and unarguably control the so-called second admission. This locks undocumented immigrants residing in the country into “an inferior position that is also an anomalous situation.” As philosopher Michael Walzer observes, they are “outcasts in a society that has no caste norms, metics [resident aliens barred from membership in ancient Greece] in a society where metics have no comprehensible, protected, and dignified place.” The denial of a legal path to citizenship for this long-settled population relies on a failure to recognize any and all ties or connections established after the initial entry. The consequences of such a policy are potentially far reaching not only for the undocumented migrants but for the receiving society as well. For, as Walzer tellingly asserts, if we persistently disallow those who are living among us—those who “do socially necessary work, and are deeply enmeshed in the legal system of the country to which they have come”—an option to become equal members, we run the risk of, as he puts it, becoming a band of citizen-tyrants. Under current immigration law and policy, none of these real, continuous, and genuine links to the country matter, with the narrow exception of individualized discretionary remedies. It is the initial moment of

The Missing Link

145

unlawful entry alone that counts for setting up the general legal policy, making those who have entered without permission or overstayed their visas members of an underclass that lives alongside, but not in the legal company of, citizens. Rootedness offers a brighter future. It permits a forward-looking exoneration as dictated by the narrative of a welcoming nation of immigrants. Still, we need to adequately address the nation-of-laws claim that there are strong principled and prudential considerations that favor signaling disapproval with the initial unlawful entry or visa overstay. All the major legislative proposals for comprehensive immigration reform in recent years have acknowledged this concern. Because nothing is swept under the rug, legalization of this kind expresses the view that once the person has been publicly reprimanded, it is possible to overcome “previous transgression[s]” and to “start again with a clean slate.” For the long-term residents present in the country without papers, the focus on taking root as captured by the proposed jus nexi principle offers an equitable remedy and lifeline where standard routes to citizenship prove foreclosed.

Conclusion To be sure, the adoption of the rootedness framework would not offer a full resolution to the intense nation-of-laws versus nation-of-immigrants debate. It is part of a larger renegotiation of the borders and boundaries of membership in the twenty-first century. Moving beyond reasons of pure compassion and humanitarian considerations that are abundant among nation-of-immigrants advocates (in themselves providing powerful and sufficiently compelling platforms for reform action), the jus nexi framework developed here enables us to engage in conversation with and ideally convince those who otherwise declare that the host country should never authorize a reform that permits a benefit to those whose first entry into its territory broke the law. Here, the best answer is to turn to the rootedness narrative of earned title. If “regularizing” title and allowing access to the benefits of protected status is permitted in the ultraprotective context of property law, where there is only so much land and the new owner displaces the former, then the weaker claim defended in this chapter—namely, providing a path to legal citizenship to those who have already become social members, without dislocating the membership status of previous titleholders—can be powerfully vindicated.

146

Immigration, Sovereignty, and Plural Citizenships

In this chapter, I have explored the idea of expanding access to citizenship by adopting a new principle of membership acquisition, jus nexi, which offers a route to earned citizenship that is open to those who cannot claim membership based on the traditional jus soli and jus sanguinis tenets of citizenship law. This proposed genuine-connection principle offers a more nuanced and grounded way in which to address the question of boundary-making, based as it is on actual membership and social attachment rather than on mere reliance on the lottery of birthright entitlement or the “original sin” of the unlawfulness of entry. I have supported this argument by looking to legal and moral rationales previously used to justify the earning of legitimate title in the semi-sacred context of private property by those who initially entered without permission. I have also emphasized that these responses recognize the web of relations and expectations informing the social fact of membership. This in turn permits greater democratic accountability, given that all those who reside in the jurisdiction and are regularly affected by the state’s authority and coercive legal powers gain the right not to be excluded and, with that right, gain a hand in shaping and deploying its participatory self-governance. In creating a closer tie between actual membership and access to permanent residence status, the more grounded conception of membership developed here permits us to respond to the new world around us, in which more and more people are likely to spend the bulk of their lives outside the political communities in which chance, not choice, has placed them. By giving weight to their actions, choices, and life circumstances rather than mechanically relying on place of birth, bloodline, or the initial moment of entry, the new rootedness framework holds the promise of providing security and opportunity to those who otherwise remain forever title-less.

Part III On Cosmopolitan Alternatives

This page intentionally left blank

Chapter 8

World Government Is Here! ROBERT E. GOODIN

Diagnostics: Why So Scary? World government has long been the great bogeyman of international political theorizing. It spooked Immanuel Kant. At one point in his essay Perpetual Peace he speaks of it as a “soulless despotism” that would threaten to “choke the seeds of good.” It has similarly spooked generations of writers ever since. But what is it exactly about world government that people find so scary? Maybe what people fear is how it might come about. Suppose, for example, that the only possible way world government could arise would be by some expansionist imperial power swallowing up all in its wake. That would be pretty scary. Ditto if a bloody world revolution were the only way to get there.  World government would be scary if those were the only ways to get there—which, of course, they are not. Neo-Hegelians point to other perfectly coherent pathways, via the dynamics of recognition. Neo-functionalists point to routes whereby the European Coal and Steel Community turned into the European Economic Community (EEC) and then into the European Union (EU). In this neo-functionalist scenario, states would just cede ever-increasing power over functionally demarcated areas to some suprastate entity that is demonstrably capable of coordinating them more effectively, with those multiple overlapping functional jurisdictions eventually forming a consolidated world government. Neo-liberals trace ways in which occasional crises lead to an expansion of the range of people to whom power

150

On Cosmopolitan Alternatives

holders are accountable. A similar logic might lead to an expansion of the range of matters over which central power holders have power and for which they are accountable. Maybe, however, what spooks people about world government is not so much what it would take to get there as what it would be like to be there. In the Star Wars trope, world government could be like the Federation, noble and benign. Or it could be like the Empire, evil and avaricious. And there is no guaranteeing which it will be initially, much less eventually. That thought, too, might well give us pause. It might, until we remember that we already have long experience honing institutional mechanisms to guard against abuses of power by central authorities. The Anti-Federalists—“Brutus,” the “Federal Farmer,” and company—expressed precisely the same fears about the strength of the central government proposed in the U.S. Constitution of 1789. Nobody would pretend that that charter got everything exactly right. But nobody could credibly deny that our long experience of such institutional architecture gives us a pretty good idea how to check and balance power within a large and increasingly strong central state. And the same institutional machinery that is effective in checking and balancing powers within national government can readily be replicated at other levels of government, whether supranationally or subnationally. So I cannot really see how this second worry with world government should unsettle us all that much either. Those brusque dismissals will hardly end all those long and tedious arguments. At this point, however, I am not trying to put arguments to rest. My initial aim here is purely diagnostic. I am merely trying to figure out what it really is that frightens people about world government. And in diagnostic mode, I just cannot bring myself to believe that either of the things mentioned above is what really has them so spooked. Those are the things that people seize upon and dress up as reasons, to be sure, when challenged for reasons to rationalize their reactions. But I just cannot credit those ostensible reasons as the root causes of people’s skittishness. Instead, I suspect people’s visceral fear of world government derives almost wholly from a simple fear of the unknown. World government is unfamiliar. We’ve never had a literal world government. We’ve not seen anything remotely resembling one for fully a millennium or two. And we all know (from postcolonial critical race theory and such like) about the way in which “Othering” can stir up fear and hatred of people of unfamiliar races, religions, and so on. In institutional terms, world government is the ultimate Other.

World Government Is Here!

151

Insofar as that is an accurate diagnosis of contemporary anxieties about world government, a remedy is readily to hand. The standard way to overcome fear of the unknown is to assimilate it to the familiar. The way to desensitize people is to expose them, in limited and controlled doses, to that to which they are overly sensitive. Such is the strategic aim of this chapter. My method will be as my title suggests: to show that in certain essential respects, world government is already with us. We should not fear it because we are already after a fashion (admittedly preliminary in form) living perfectly comfortably with it. Whether world government is or is not ultimately desirable is a separate issue, and one that genuinely needs to be debated separately. But it can only be sensibly done after we’ve dispelled knee-jerk bogeyman responses.

World Government: In the Beginning The fi rst step in my argument is simply to invite you to think what world government would most probably be like in the very beginning. The bogeyman image of it—as a big, elaborate, unified, institutionally dense, allpowerful entity—depicts world government as it might be at the end of the day. But surely it would not start out that way. World government would not spring fully formed from the brow of some global Rousseauian lawgiver or from some conclave of founders in Pristina, or whatever. Instead, world government would surely start small and grow. Consider this analogy. Nowadays, we tend to think of democracy primarily in terms of free and fair elections with universal adult suff rage. Following that definition, global democracy looks pretty hopeless: a single worldwide electorate is nowhere in sight. Notice, however, that that is essentially a nineteenth-century, Reform Act way of defining what democracy is all about. It marked the culmination of many other steps, large and small, that came historically much earlier. Notable among them were things like establishing the principle that the king’s word was not itself law but rather that the king ruled under law (via the Magna Carta of 1215), and establishing the principle that the king was answerable to parliament (via the Bill of Rights of 1689). Judged in terms of those more preliminary harbingers, global democracy may well be nigh. That is an argument about global democracy I develop elsewhere. My central thought is that if we are interested in global democracy and want to know how far along we are toward achieving it, we ought not to fi xate on

152

On Cosmopolitan Alternatives

what global democracy would look like “at the end of the day,” fantasizing about some popularly apportioned, directly elected Second Chamber of the United Nations or some such. That scenario may well be the culmination of the project of democratizing the globe—at the end of the day. But remember, the Reform Act came at the end of the long process of democratization domestically; and, globally, we are only at the very early stages. Modeling like on like, we ought not to be looking for global analogs to the nineteenthcentury Reform Acts. Instead, we ought to be looking for global analogs to the sort of democratic developments (rule of law, accountability) that came domestically several centuries before that. Here, I will be making a similar argument about world government. That, too, is in its early days. Instead of fi xating on what world government might look like in its fullest form at the end of the day, we ought to consider instead what it might look like at the very beginning and ask, “How far are we along that path?” In my companion article, I modeled the steps toward global democracy on early English history. Here, I propose to model the slow growth of world government on early U.S. history: • Maybe world government will eventually have, as the United States now does, a strong central administration. But, in the very beginning, world government will inevitably be as the United States was initially: a loose federation of relatively strong, relatively independent states. • Maybe world government will eventually have, as the United States now has, a large standing army of its own. But in the very beginning, world government will inevitably rely (as the U.S. central government initially did) on member states to volunteer the ser vices of troops of their own. • Maybe world government will eventually have, as the United States now has, broad powers to raise taxes and transfer resources among those under its jurisdiction. But in the very beginning, world government will inevitably be vested with only weak, special-purpose powers to tax and transfer just as the early U.S. federal government (which initially had to rely largely on excise duties at ports of entry or points of production). I take it that those three functions, between them, are sine qua non for a state worthy of the name. They are what distinguish a genuine state (albeit

World Government Is Here!

153

one that is federal in form) from a mere alliance of essentially separate states. 1. A state, to be a state, must have some authority over what it claims as its subordinate jurisdictions. It need not have complete authority: it need not be able to overrule subordinate jurisdictions on any and all topics. (No federal state would count as a state according to that definition.) But for a state genuinely to be a state, there need to be some matters on which it is authorized to overrule its subordinate jurisdictions, intervening to substitute its will for theirs. 2. A state, to be a state, must have some military capacity. It need not enjoy a complete monopoly on the legitimate use of force, perhaps; subunits may also have authority to exercise police and defense powers as well. But a state without any capacity to exercise force does not look like much of a state. 3. A state, to be a state, must be able to raise and spend money. Again, it need not enjoy a monopoly over taxing and spending powers; subordinate jurisdictions might retain substantial powers in that respect as well. But a state without any capacity whatsoever to collect and disperse revenue would not be much of a state. The burden of the subsequent sections of this chapter is to show that these defining features of statehood are found, in at least rudimentary form, at the global level today. In that sense, we already have the rudiments of world government. Indeed, we have about as much of a world government as the United States had a federal government on the eve of the nineteenth century. In my companion article on global democracy, I go on to argue that there is a mechanism whereby democracy, once established after some rudimentary fashion, will basically only ever expand and almost never contract. I will make no parallel argument here in respect to world government. I do have views on the subject. But that issue is beside the point of the present chapter, so it is better for me to remain silent here on those matters to avoid muddying the waters. Remember the purpose of this chapter. It aims purely to desensitize. Its strategy is to dispel fear of the bogeyman of world government by showing that world government in some rudimentary form is already with us. There is no reason to take fright at the familiar; and I will show that familiar features

154

On Cosmopolitan Alternatives

of today’s world can be seen as constituting the rudiments of world government.

Cosmopolitanism, Federal in Form Writers conjuring up the bogeyman of a unitary world government ruling over the whole world are of course being disingenuously inattentive. That proposal is simply not the one on the table.  It is not now, nor has it been at any time in living memory. Arguably, the last time a really serious case was made for a unitary world government was in Dante’s De Monarchia, a fourteenth-century defense of the Holy Roman Empire. From the 1648 Peace of Westphalia onward, a world federation of nation-states rather than a unitary world government has politically been the only remotely serious proposal. Certainly mere world federalism, rather than anything grander, was what was on the agenda the last time anything remotely like world government attracted serious political attention—at the end of World War II. World federalism is what the United World Federalists’ 47,000 members were lobbying for. That is what was being demanded in a 1945 open letter to the New York Times from twenty eminent Americans, including Albert Einstein, Supreme Court Justice Owen Roberts, and senators J. William Fulbright and Claude Pepper. That is what was urged in resolutions passed by legislatures of twenty U.S. states. So too has cosmopolitanism, federal in form, been the long-standing focus of discussions within political philosophy. In his essay Perpetual Peace, Kant famously wrote in favor of federal rather than unitary political arrangements at the global level. William Penn described his own proposal as a “European league of confederacy.” It was a “Federation of Europe” that Abbé Saint-Pierre wrote in favor of (and Rousseau against). Similarly, what Henry Sidgwick hoped for—as “not beyond the limits of sober conjecture as to the probable future of political development”—was “a federation of WestEuropean States at least, with a common government sufficiently strong to prevent fighting among these states.” So too with today’s political philosophers. Michael Walzer’s prescriptions for global governance stop well short of unitary world government. Daniele Archibugi, David Held, and Raffaele Marchetti all advocate arrangements that are (in their very different ways) at root federal in form. James Bohman’s cosmopolitanism is institutionally so thin as to demand

World Government Is Here!

155

only (if only!) that courts protect the human rights of people without regard to their citizenship. Not only is the proposal that is presently on the table from cosmopolitans of virtually every stripe for “cosmopolitanism, federal in form.” Furthermore, at least in the first instance, it would be a very weak federation, characterized by strong forms of subsidiarity. Existing national governments would continue to exist, and they would function essentially the same as they do today. The only difference is that there would be erected over the top of them a light federal structure that assigns specific competences to the various levels of government. Or perhaps, more minimally still, it might merely assign a “fallback” allocation of responsibility, such that responsibility for certain things falls to the higher level of authority, if (but only if) the lower levels fail to discharge them. How exactly to specify those latter powers varies from one theorist to the next. Naturally, there are heated disputes over all that. Do not let the heat of those discussions mislead us into misjudging the magnitude of the powers that world federalists of all stripes envisage being transferred to some central world authority, however. Almost everything that is currently done by existing nation-states would still be done by those nation-states, and in almost no cases would the federal government of the world have any authority to direct them to do otherwise. Nor is this merely some quirk of the proposals that happen to be on the table at the moment. Subsidiarity of some sort is built into the very nature of federalism itself. From Althusius forward, the animating idea underlying all forms of federalism has been one of allowing the lower levels of government to do what they can do well and for the higher levels of government to intervene only when the lower levels are demonstrably unable to discharge some crucial function. Hence, the bias toward localism is built into federalism as such. In adopting the motto of “cosmopolitanism, federal in form,” cosmopolitans thereby concede a strong, continuing role for the nation-state— insofar as that institution is indeed still up to the job.

Minimal Central Authority As William Riker observes, every government has multiple levels. Even the most unitary government invariably operates through local branch offices, and those often enjoy genuine discretionary power (albeit of a purely

156

On Cosmopolitan Alternatives

delegated sort). The mere existence of many different levels of government is not what makes a political system “federal.” What distinguishes genuinely federal governments from unitary-butdecentralized ones is that in a federal system each unit of government (subordinate and superordinate) enjoys constitutionally entrenched sovereignty over at least one policy domain. Were the subordinate units not sovereign over at least one domain, the state would be a unitary rather than a federal one. Were the notional “superordinate” not sovereign over at least one domain, the political system would be a mere alliance rather than a genuine federation with genuinely “subordinate” units. Notice that even weak federations count as federations by that formalistic criterion. The U.S. Articles of Confederation purported only to create a confederation, which is ordinarily taken to be something short of a genuine federation. But notice that even under those articles, the central government most assuredly was sovereign over at least one policy domain (conspicuously, the war power). Of course, the central government was not sovereign over many other domains, raising armies and revenue being ones of particular concern to those who gathered in Philadelphia in 1787 to beef up the powers of the central government. Still, notice that by this, the standardly accepted formal definition, the United States circa even 1781 would have counted as a federation. In the standard characterization of a federation just cited, it is stipulated that the sovereignty of each level of government in at least one policy domain must be constitutionally entrenched. Here is the reason. We would not want to call a system “federal” if the superordinate unit could remove the subordinate unit’s power whenever it so desired. The example ordinarily offered is that of U.S. cities: they are legally creatures of the states, and their charters could be revised or withdrawn by those state governments any time they choose. That example is probably not a very good one, for reasons I shall go on to discuss shortly. Still, the root intuition is a valid one. For a subordinate unit genuinely to have sovereignty over some policy domain, as is required for it to be part of a genuinely federal union, that power must be somehow politically entrenched. It must be the case that its removal cannot be effected just through ordinary political processes (simple majority vote in the legislature, for example). It must be removable instead only through some extraordinary political process (such as a supermajority to amend a constitution). Clearly, what matters is that the powers in question be entrenched in the constitution, not that they be “written” into it. The United Kingdom has no

World Government Is Here!

157

written constitution. But no one can doubt that there are some provisions (roughly speaking, those that Her Majesty’s Stationery Office used to bind together as the first volume of Statutes in Force, which it entitled The Constitution) that are as entrenched as any provision of the U.S. Constitution. In some purely formal, legalistic sense, they may be only statutes enacted by one Parliament that could, in principle, be repealed by any subsequent Parliament. But politically, the facts of the matter are otherwise. Politically, much more would be required to change those provisions than is required merely to repeal any ordinary legislation. Thus, constitution-like provisions can be politically entrenched without being formally inscribed, which is obviously so in jurisdictions with unwritten constitutions. But it even may be so in jurisdictions that do have written constitutions. Some of the political arrangements and delegations of powers that have emerged outside the formal text of the written constitution might, as a political fact of the matter, enjoy such status in practice as to be de facto constitutionally entrenched. As I foreshadowed above, I would actually be inclined to treat U.S. municipal governments as a case in point. True, they exist purely by virtue of a charter from the government of their state. True, that charter could legally be withdrawn at any time. Still, as one savvy commentator puts is, “In practice, when political costs are weighed, it is unlikely.” Indeed, it is so very unlikely that I would suggest that all the major U.S. cities should be considered to be virtually (if not literally) constitutionally entrenched. The reason I am harping on about all this in the present context is, of course, that no constitution has yet been promulgated for the government of the globe. Were it the case that a federal government could only exist by virtue of a written constitution allocating it sovereignty over some sphere, then clearly no such world government could currently exist. But suppose a federal government can exist by virtue of allocations of de facto sovereignty, such that (purely as a political fact of the matter) it would be very, very hard to deny the various levels their respective powers. Then there could already be at least a rudimentary world government, federal in form, with the central authority’s sovereignty over certain affairs being entrenched merely by the firmly settled views of the world community as to what it can and should (and nation-states cannot or should not) do. In that sense, there arguably is already sufficient authority vested in the world community to underpin a world government, federal in form. There are certain policy domains over which lower-level units (the nation-states) do not enjoy sovereign authority. Peremptory norms of international law

158

On Cosmopolitan Alternatives

( jus cogens) identify various things that sovereign states simply are not legally permitted to do. Among them are waging aggressive wars, committing genocide or other crimes against humanity, and violating universal human rights (particularly those against slavery or torture). Nation-states are denied sovereignty over those matters. Nation-states are not legally empowered, in the exercise of their sovereignty, to commit those acts. Not only is it the case that individual nation-states are denied sovereignty over those matters. Agents of the global community are legally empowered to intervene to prevent nation-states from behaving in those ways. International organizations, organized groups of nation-states and perhaps even individual nation-states—acting on behalf of the international community—are legally permitted to engage in “humanitarian intervention” in such circumstances. Supranational actors, acting on behalf of the international community at large, are empowered to impose the will of the world community on any nation-state that itself wills otherwise. And one unit’s being legally empowered to override the decisions of another is, of course, tantamount to the former having (and the latter lacking) sovereignty over that matter. Of course, telling nation-states’ governments what they cannot do is different from issuing orders directly to individual citizens of those nationstates. Some say that being able to do that is an important incident of fully fledged federalism, too; and perhaps it is. But just as when establishing democratic norms, the first thing to get established is that the sovereign rules under law (rather than the sovereign’s word being law); the first thing to get established in instituting some central federal authority is that there is a superordinate authority empowered to overrule (at least in certain circumstances) the decisions of the subordinate unity. And of course there is, at the global level today, no standing entity organized that is capable of systematically exercising this authority. In the absence of that, the authority is institutionally free-floating. It can be, and is, taken up by any grouping that can credibly claim to be acting on behalf of the world community to enforce peremptory norms of international law. Ideally, perhaps the authorization of the U.N. Security Council should be secured. Ideally, perhaps, the United Nations should undertake the action itself. But failing that, a variety of institutional shells have been employed by different groupings engaged in humanitarian interventions under these peremptory principles of international law. There is authority without there yet being “An Authority.” In that respect, perhaps particularly, it may seem a bit odd to say that a world government—even a rudimentary one—actually exists. The

World Government Is Here!

159

institutional apparatus is missing. And surely institutions are the stuff of which governments are made. But even if key elements of institutional architecture are missing, we do have something important, arguably even more important, in place. What we have is the fundamental principle required for a federal world government to exist, the principle that there is some authority at the supranational level that overrides the sovereign prerogatives of nation-states. There are indeed some policy domains over which nation-states do not enjoy sovereignty and in which the global community (through whatever agency it happens upon, on a case-by-case basis) is not only morally but also legally authorized to impose its will instead of deferring to the will of the nationstate. By the “sovereign in at least one policy domain” standard, therefore, the global community (however organized) does indeed have the sort of authority minimally required to constitute a federal government.

Minimal Military Capacity Some capacity to raise and deploy troops against enemies foreign and domestic is a defining feature of statehood. Nowadays, we think in terms of large standing armies, well-equipped and well-trained and under a unified command structure. But once again, those were later developments. At earlier stages of the formation of federal unions, military command structures were often much less unified, and titular heads had to cajole much more than they were able to command. In this respect as well, the capacity of the international community today to raise and deploy troops compares well with that of the U.S. federal government in its early years. At the end of the Revolutionary War, the U.S. army—which in any case consisted merely of the massed militias of the several colonies—was disbanded. Under the original Articles of Confederation, too, the U.S. government had to requisition troops from the state militias as needed. Furthermore, it could not do so lightly: “the number of land or sea forces to be raised” had to be agreed on by a supermajority of nine out of the thirteen states (Article IX). The Constitution of 1789 changed that, formally empowering Congress “to raise and support Armies” and “to provide and maintain a Navy.” But the state militias still formed a key part of the U.S. national military capacity. This is evident on the face of the text. The very same clause of the Constitution goes on to charge Congress: “to provide for calling forth the Militia

160

On Cosmopolitan Alternatives

to execute the Laws of the Union, suppress insurrections and repel invasions”; and “to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Ser vice of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress” (Art. 1, Sec. 8). Both Anti-Federalists and even many Federalists, wary of standing armies, much preferred to rely on state militias instead. It was agreed on all sides that militias were—in James Madison’s language for the Second Amendment—“necessary to the security of a free state.” Even those wary of standing armies in general, however, eventually learned from hard experience the importance of at least a small, welltrained, well-equipped cadre of regular military troops. George Washington learned that lesson early. As Revolutionary War commander, he complained bitterly to the Continental Congress about the quality of the militias. He was hardly more impressed with his experience as the only U.S. head of state to ride at the head of troops in battle, putting down the Whiskey Rebellion with a ragtag collection of state militias. In the War of 1812, the militias again proved unsatisfactory. The U.S. Military Academy at West Point was founded soon thereafter, and a small army of regular troops slowly began to emerge. Still, the striking thing is how very small the federal government’s standing regular army was for so long. By and large it was just deployed on the western frontier. On the eve of the Civil War, there were only 929 regulars assigned east of the Mississippi. With the firing on Fort Sumner, it was to the states that President Lincoln first turned. He asked “governors of the loyal states for 75,000 militiamen to serve for three months, the maximum time permissible under existing laws”; they proffered 100,000. Those troops from state militias were subsequently supplemented. To them were added “40 regiments of U.S. Volunteers (42,034 men) to serve three years or for the duration of the war,” and the number of regulars grew over the course of the war as well. The size of the army declined again after the Civil War (although never to prewar levels), only to rise again with each World War (declining again after each, but never to prewar levels). When we contemplate the military capacity of any serious state today, it is of course those later developments—a large standing army with a unified command structure—that are at the forefront of our minds. My focus here is earlier than that, however: on the military arrangements of the U.S. fed-

World Government Is Here!

161

eral government in the very beginning, at the point most akin to today’s nascent world government. At the very beginning, the U.S. federal government had no army of its own. Under the original Articles of Confederation it had to rely completely—as the United Nations does today—on its military needs being met by member states assigning members of their armed forces to the central authority’s command, for limited periods and for specific purposes. And, while the U.S. federal government soon acquired a small regular army and navy of its own—in a way the United Nations has not (yet)—the size of that force was relatively small, and the U.S. federal government continued to rely on member states assigning their militias to federal command for major operations for a very long time. Much the same is true of U.N. peacekeeping missions today. “The United Nations has no standing army or police force. For every new United Nations Peacekeeping operation, the Secretariat must seek contributions of military, police and other personnel from member states who are under no obligation to provide them.” Notwithstanding that fact, the United Nations has engaged in sixty-three peacekeeping operations since its inception in 1945. It is a particularly telling fact that “only the United States deploys more military personnel to the field than the United Nations.”

Minimal Taxing Capacity Finally, a state to be worthy of the name has to have some capacity to tax and spend, some capacity to raise revenue, spend it, and redistribute it. What revenue source can be assigned to the central authority that has not already been claimed by (or that can be wrested away from) the subunits? And what institution might have the capacity to levy such taxes at the global level? Again, early U.S. experience provides an interesting window on the prospects for world government in this respect as well. Nowadays, mature nation-states typically rely on general taxes on income or on expenditures. They sometimes also collect various other much more special-purpose taxes, charges, fees, and duties. We tend to regard those as inefficient anachronisms, accidental carryovers from earlier times, which is precisely my point. In the beginning—when a new central government is just getting established—it relies almost exclusively on the special-purpose tax sources that we denigrate today.

162

On Cosmopolitan Alternatives

The most important of those sources to the U.S. central government in its early years were tariffs levied on imports at U.S. ports and excises (like the Whiskey Tax, occasioning the rebellion just mentioned) levied at the point of production. In the early days, it was simply “impracticable to raise any very considerable sums by direct taxation.” The fact that Treasury Secretary Alexander Hamilton’s act for laying a duty on goods, wares, and merchandises imported into the United States was only the second law enacted by the new U.S. Congress is testimony to the importance of indirect revenue streams to the early U.S. republic. From then until the eve of World War II, tariffs and excises remained the largest source of revenue for the U.S. national government. Total receipts from excise taxes were not surpassed by those from individual income taxes until 1943. Economists bemoan the inefficiencies and economic distortions associated with tariffs and excises. They give good arguments why it is better for government to rely on broader-based taxes. But, in the very beginning, governments have almost invariably tended to rely on those sorts of specialpurpose taxes instead—not least because they could be collected at a few specific points, like ports and points of production, that could be patrolled relatively easily. My strategy in this chapter is one of modeling like on like. To get a good grip on how a world government would raise revenue in the very beginning, which is where we presently are, consider how the U.S. national government raised its revenue in the very beginning. In light of that comparison, we should not bemoan the fact that there is no immediate prospect for a global tax on personal income tax or on sales of goods and services. As with the early U.S. federal government, a nascent world government will doubtless have to rely initially on some special-purpose source of revenue. What might that be? Let me begin by looking to the medium term. That is to say, I will begin by trying to envisage what sorts of taxes might plausibly get established to fund a modest-sized world government. I shall then return to discuss what precursors of the institutional structure might be necessary for what is already present in the world today. Purely in pragmatic political terms, the sort of tax that world government will have to rely on into the medium term will probably be one that has not yet been appropriated by existing nation-state governments. Various possibilities include a tax on extraction of resources under international waters or in international lands of the Antarctic. New technologies can open up new tax sources, such as licensing the international use of wavebands

World Government Is Here!

163

for communication purposes. But everyone’s favorite is the Tobin tax on international currency transactions. In recent discussions of new sources of international finance (particularly but not exclusively with a view to funding development assistance), proposals that have particular appeal are ones that promise a “double dividend.” That is to say, they “not only raise revenue but also help to internalise negative cross-border externalities.” Among the tax proposals enjoying this advantage are • environmental-/energy-/transport-related taxes, like taxes on maritime transport, aviation, or a CO tax/charge; • taxes on currency or financial transactions, like the Tobin tax; • health-related food taxes, like a tax on the sugar content of food; and • taxes on the trade of arms. In all these cases, significant benefits arise merely from collecting the tax, by providing disincentives to socially deleterious activities. Those benefits are wholly independent of how the revenues thus collected are actually spent. Part of those “other benefits” that come simply from imposing those taxes accrue to the world as a whole. But at least with several of them, there is another part of those “other benefits” that accrues directly to the particular jurisdiction imposing the tax. A nation-state taxing the sale of unhealthy food to its residents reduces public health-care costs in that jurisdiction, for example. And so too with the much-discussed Tobin tax on international currency transactions: it is in the country’s own interest to impose such a tax on transfers into and out of its national currency, purely in order to dampen economically harmful fluctuations in the value of its own currency, quite apart from the good effects of imposing that tax on the global economy overall. Contrary to what it is ordinarily supposed, therefore, most of those sorts of taxes could actually be imposed, one country at a time, without necessarily requiring concerted global efforts—at least in the first instance. The question of what might induce the nation-states collecting such taxes within their jurisdictions to share any of those tax revenues with a world government remains. But here political dynamics of international negotiation might provide an answer. Suppose one nation-state unilaterally imposing those taxes helps it, while harming some non-nationals (airlines, shippers; foreign businesses operating in their currency; arms merchants). Insofar as that is the case, foreign countries inclined to protect their own nationals’ interests

164

On Cosmopolitan Alternatives

would be inclined to protest those taxes and charges. But they would be much more prepared to tolerate those taxes and charges if the funds thus raised were going to some common project (financing world government and its globally agreed-on tasks) rather than just going into the coffers of the national treasury levying the tax. So that is how I would envisage the taxing and spending powers of world government to go, in the medium term. But in the short term, there is the question of how we get from here to there. There is at present no institutional structure at the world level to discharge the functions being discussed. Or so it will be said. And that seems to be an important objection. Onora O’Neill insists that it is pointless to talk about universal human rights without answering the question of agency. Thomas Nagel insists that it is pointless to talk about global justice unless there is some agency to which we could assign the duties to which it would give rise.  Clearly, the financial arrangements made for funding the national government in the U.S. Articles of Confederation were unsatisfactory. Leaving all revenue-raising powers with the lower-level governments and authorizing the higher-level government merely to levy assessments against those lower-level governments will work only if some mechanism will enforce its assessments. A great many countries of the world currently fail to pay their U.N. dues, in just the same way as several states failed under the Articles of Confederation to pay their full assessments to the U.S. national government. Notice, however, that while it is not a satisfactory arrangement in the long term, in the very first instance, newly emerging governments have historically tended to rely on others to collect their tax revenues for them. Such was the way with “tax farming” of old. Such is the way with any state that relies on private debt collectors to enforce tax liabilities today. Thus, there is every reason to suppose that the private collection of public debts would be the model that a nascent world government would employ for revenue raising. Furthermore, it is simply not true—not literally true anyway—that there is “no institutional structure at the international level.” Let a single example suffice in reply. It is an example of private-law enforcement of, in effect, a tax. But it is an international system that is already in existence, one that could be used as a model for others or that could itself be expanded and used for broader purposes. This international system provides for registering patents and enforcing claims for payment of fees arising from other people’s use of patented devices and information. A patent is, of course, a kind of property. And it gives rise, in turn, to a kind of private tax. It allows patent holders to impose a fee on anyone who wants to use the property that they

World Government Is Here!

165

own. Hence, the elaborate institutional architecture surrounding the granting of patents—and the associated system for collecting fees for the use of patented inventions—can credibly be seen as a global system for tax collection.

Oh, My! In saying that the rudiments of world government are already with us, the aim of this chapter has been to reassure, to dissipate fear of the unknown. But the effect might of course be just the opposite. “If what we thought were innocuous features of the status quo are actually precursors to world government,” some might say, “then maybe they are not that innocuous after all!” But why should we worry that that is where it all will lead? The path dynamics in view are reassuring rather than worrying. It is not as if weaker forms of international cooperation would make things worse in ways that only stronger forms of world government would then be able to make better. Instead, the presumptive path would be one of success building on success: the more experience we have of ever-stronger forms of global cooperation, the more clearly we can see its benefits and the more comfortable we become with its further ramifications. Assuming those really are the path dynamics in view—assuming it really is purely a matter of confidence building, where the confidence is well warranted—I simply cannot see anything troubling in them. If a weakly federated form of global governance would lead to more strongly centralized forms of world government through that route and only that route, then we would surely have nothing to fear from such a development.

Chapter 9

If You Need a Friend, Don’t Call a Cosmopolitan JEREMY RABKIN

A

s a political doctrine, cosmopolitanism seems to have two distinct roots. One is dedication to equality. As David Held has put it, “the first principle” of cosmopolitan morality “is that the ultimate units of moral concern are individual human beings, not states or other particular forms of human association. Humankind belongs to a single moral realm in which each person is regarded as equally worthy of respect and consideration.” Apart from dedication to equality, there is a second impulse: disdain for the particular against the universal, the contingent against the systematic. As Harry Brighouse has put it, “National membership is for the most part morally arbitrary. We did not choose our nationality from a range of serious options anymore than we chose our race or sex or the class positions of our parents.” Christine Sypnowich argues, in a similar vein, that egalitarian reasoning should apply even more in international policy than in national policy because the differences between countries seem so morally arbitrary, from an individual perspective: “In the context of a single, affluent national polity, the idea that my ability to be wealthy or poor is the unmerited byproduct of a ‘natural lottery’ is vulnerable to a variety of objections derived from concepts of free will, desert and responsibility. But to be born in a poorly governed drought-stricken country as opposed to an affluent liberal democracy truly does seem to be a matter of plum bad luck.” At some level, these two concerns may seem not only closely related but mutually reinforcing: if one views distinctions between fellow citizens and outsiders as arbitrary, then it will seem morally obligatory to treat people in both categories equally—or rearrange the world so that their differences no

If You Need a Friend, Don’t Call a Cosmopolitan

167

longer have much consequence. There is an obvious problem, however. Most people prefer what is familiar or shared; so they prefer fellow citizens (or fellow nationals) to outsiders. To insist on equality across national boundaries is to give priority to the cosmopolitanism of a relatively small minority. That does not seem very egalitarian. But perhaps that is another appeal of cosmopolitanism for those who regard it as a political imperative. Cosmopolitanism combines the warm glow of egalitarian fellow-feeling—embracing the whole world, as it does—with the secret satisfaction of belonging to an enlightened elite. Socialism once offered a similar attraction to many people: in the name of equality, it empowered an elite of planners, administrators, and official ideologists to tell everyone else how to live. Socialism claimed unheard-of concentrations of political authority with incredible claims to universal benevolence. Perhaps that is why academic advocacy for “cosmopolitanism” only emerged as a broad trend after the collapse of communism, when egalitarian impulses (and claims to special authority) needed a new outlet. Like socialism, cosmopolitanism presents itself as an extension or perfection of liberalism. Starting from the liberal principles of equality and impartiality, cosmopolitanism promises to extend equality beyond the arbitrariness of national attachments, much as socialism promised to extend equality beyond the arbitrary limitations of private ownership. It is true and telling that classical liberalism—the outlook, for example, of the American Founders or the classic works on natural law (in its Enlightenment version)—recognized certain claims of generalized humanity. So, for example, John Locke’s Second Treatise of Government holds that by “the Law of Nature” everyone “is bound to preserve himself . . . and so by the like reason . . . ought he, as much as he can, to preserve the rest of Mankind” but only “when his own Preservation comes not in competition” (para. 6). When there is “injury” to a “member” of an established commonwealth by “those that are out of it,” the “whole community . . . engages in the reparation of it” because the community as a whole retains the primal right to give priority to its own preservation (para. 145). Montesquieu summed up the “law of nations” in a more genial and perhaps more accommodating spirit: “Different nations ought in time of peace to do one another all the good they can and in time of war as little injury as possible, without prejudicing their real interests.” The Federalist opens with the admonition that the failure of the new American Constitution would “deserve to be considered as the general misfortune of mankind.” Therefore, “all considerate and good men” should feel “solicitude” for its success, adding “the inducements of philanthropy to

168

On Cosmopolitan Alternatives

those of patriotism” (no. 1, para. 1–2). But only a few papers further on, The Federalist cautions “men are ambitious, vindictive and rapacious”; so expecting “a continuation of harmony between . . . independent, unconnected sovereignties would be to disregard the uniform course of human events and to set at defiance the accumulated wisdom of ages” (no. 6, para. 2). Classical liberalism could make some place for public assistance to the poor at home, along with some minimal national obligations to foreigners under the law of nations. But classical liberalism still relied on the possessiveness of ordinary people, their general preference for their own. Cosmopolitanism seems determined to undermine or severely limit the political expression of national attachments, as socialism seeks to limit (where it does not abolish altogether) the rights of private owners. Of course, cosmopolitanism, like socialism, comes in many shades or flavors—perhaps more so even than socialism since cosmopolitanism has never been subject to the discipline of a mass party, carry ing its banner in electoral politics. Academics or intellectuals of various persuasions may call themselves cosmopolitans while disclaiming support for particular awkward consequences of the general doctrine. Still, it is not mere speculation that the general doctrine has very troubling implications. If cosmopolitanism as a political doctrine does not limit the moral claims of nations, it has no relevance to political life. In recent decades, cosmopolitan thinking has indeed made a mark on major areas of law and policy affecting the most vital interests of nations. The logic of cosmopolitan stances has proven very hard to manage, and the consequences, in several areas, are very hard to defend. In what follows I will try to illustrate the problem in several different policy fields, starting with the cosmopolitan challenge to the law of war.

The Law of War in Cosmopolitan Perspective The idea that restraints should be respected even in war has roots in the ancient world and was certainly acknowledged in medieval Europe. Medieval knights were supposed to treat captives with chivalry and spare noncombatants from harm, where possible. The basic idea reappears in the Convention Respecting the Laws and Customs of War, adopted at the Hague Peace Conference of 1899, as part of the first attempt to codify restraints in war. The preamble states the aim: “to diminish the evils of war, as far as military

If You Need a Friend, Don’t Call a Cosmopolitan

169

requirements permit” (emphasis added). This qualification, allowing for military necessity, was, in past centuries, understood to allow many exceptions to the principle that force should be directed only at those wielding counterforce. If the aim is to force the enemy to stop fighting, much may depend on what the enemy does and, in particular, on how the enemy conducts its own military efforts. Observing restraints in war is surely much easier when the enemy respects the same restraints. In the history of warfare, departures from restraints on one side usually were met with abandonment of restraints on the other. The rules that had developed among European armies by the eighteenth century were readily abandoned in conflicts with enemies who did not recognize these rules. In such conflicts, European powers felt bound only by “the laws of humanity and the dictates of public conscience” (as the preamble to the Hague convention put it), and these abstractions could prove quite elastic where “military requirements” were thought to demand harsh measures. So far from trying to limit the background notion of reciprocity, the Hague convention codified it. The convention specified that its rules applied only “between contracting Powers [that is, parties to the convention] and then only if all the belligerents are parties to the Convention” (Art. 2). Colonial wars fought in the following decade—by the British in South Africa, by the Germans in Southwest Africa, by the Americans in the Philippines, by all the powers in China (to relieve the Western embassies besieged by the Boxer Rebellion)—were fought with little regard for European laws of war. The British, for example, herded Boer civilians into “concentration camps” (as they called them); the Germans massacred natives of the Herero tribe on such a scale that historians have viewed the event as a “learning experience” for German commanders in what would later be called genocide; Chinese civilians were massacred by all foreign armies on the road to Peking. Yet a second Hague Peace Conference in 1907 simply reaffirmed the earlier convention, as if nothing had happened. The rules were for conflicts among “civilized” states, and even many of these rules were, of course, abandoned in the world wars that followed. In recent decades, a different perspective has come to predominate, at least in formal standards (and even more so in formal standards as interpreted by nonmilitary commentators). Following the extreme tactics deployed in World War II (culminating in the atomic bombing of two Japanese cities), the Geneva Conventions of 1949 did not even try to lay down standards for military operations. They simply sought to standardize protections

170

On Cosmopolitan Alternatives

for injured combatants, prisoners of war, and civilians in occupied territory (that is, civilians no longer in active war zones). But by the mid-1970s, following the end of the long-running conflict in Vietnam, a new Geneva conference again sought to codify restraints on the conduct of war. Two additional protocols were accordingly negotiated in 1977. They were ratified by most countries in the world over the next two decades, and commentators hold that most of their provisions have now become customary law, binding even on nations (such as the United States and Israel) that have not formally ratified the protocols. The new standards, later embraced by international tribunals, were the springboard for the “quantum jump” (as a distinguished Dutch legal commentator has put it) between the atmosphere of the late 1940s and that of the early twenty-first century. Even as late as 1977, the participating nations could not agree on a single, encompassing set of rules. So Additional Protocol I purports to apply only to “international” conflicts, while the much shorter and less demanding Protocol II covers “non-international conflicts.” The distinction reflects the priorities of the Third World nations who formed the majority at the Geneva conference. They wanted protection from more advanced nations in future conflicts and a relatively free hand in dealing with domestic rebels. The distinction does conform to historical practice, however. The Hague conventions and the 1949 Geneva conventions applied, by their terms, only to confl icts between “contracting powers”—that is, international confl icts between parties to these international treaties. The traditional practice was so well established that the leading Englishlanguage treatise on the law of war insisted, in the early twentieth century, that only actual international conflicts could properly be described as “war.” “War,” in this technical, legal sense, usually ended in negotiated peace; so both sides often had incentives to show restraint. Meanwhile, the regular armies of established states could be expected to know and honor restraints in their conflicts with each other. Domestic rebels, by contrast, were usually crushed without restraint: a negotiated peace with rebels would be a defeat for an established government. Nor were improvised rebel forces expected to observe the restraints honored by regular armies. Contemporary commentators nonetheless insist that almost all of the constraints imposed by Additional Protocol I are now applicable to all conflicts—and all combatants, even if their home states are not parties to the treaty—as a matter of “customary law.” The basis for this conclusion cannot be the actual practice of states. Recent civil wars in Africa have been as brutal as any in past history. But the idea of reciprocity has lost much of

If You Need a Friend, Don’t Call a Cosmopolitan

171

the moral force it was once assumed to have. So, too, has the larger notion that different kinds of conflict may rightfully have different rules of war. The traditional approach assumed that established states had a kind of moral priority in warfare. War was supposed to be the prerogative of sovereigns who could handle it most effectively and, in a way, responsibly. For one state to come to the aid of another in war was regarded as perfectly lawful, while to intervene in a civil war or rebellion, particularly on the side of the rebels, was seen as highly questionable. The priority of established states makes some sense if one thinks the international community has a common stake in stability and on limiting resort to force. Who else could maintain stability in a given state if not its established government? From a cosmopolitan perspective, however, it is not at all obvious why an established state can claim moral priority over a group of rebels, nor why an established military force should be more protected under the law of war than a shadowy guerrilla force or even a terrorist network. From a cosmopolitan perspective, any deviation from the rule of equality seems questionable. As a recent work on the ethics of “world community” puts it, “Much of the modern [that is, post-medieval] just war discourse is quite state-centered [following from its] commitment to the principle of state sovereignty as a central feature of international order,” while “cosmopolitanism and pacifism,” by contrast, “seem to share a fundamental commitment to the equal value of every human life.” The Additional Protocols of 1977 took large strides toward the cosmopolitan perspective. They were the first general conventions on the “law of armed confl ict”—a broader term already displacing the traditional term “law of war”—negotiated after the advent of international human-rights treaties. A compendium of “human rights instruments” published by the United Nations in the mid-1990s included the Additional Protocols along with U.N.-sponsored treaties on “Civil and Political Rights,” “The Rights of the Child,” and so on. If human beings in all countries should have the same basic rights guarantees—the premise of human-rights treaties—why shouldn’t all participants in all conflicts (along with all affected bystanders) have the same legal protections? Respected commentators insist that humanrights treaties should indeed apply even in confl ict situations. Even the term “law of armed confl ict” has now been abandoned by many commentators for the still more embracing term “international humanitarian law,” with the implication that “humanitarian” obligations must take precedence over “military requirements” in much the way international human-rights standards are supposed to take priority over national policies.

172

On Cosmopolitan Alternatives

One implication of this new perspective is that members or affi liates of terror networks deserve the same legal protection as citizens in peaceful countries or regular uniformed soldiers in war zones. Almost no Western commentator disputes that a terrorist who attacks civilians has committed a crime. But the International Committee of the Red Cross (ICRC) and many commentators insist that under international human-rights law, accused criminals must be accorded the due process guaranteed by human-rights treaties. The ICRC acknowledges that members of organized fighting forces, like al-Qaeda fighters, might be detained as prisoners of war but insists that if they are, they must receive all the protections accorded to captured soldiers of regular armies under the Geneva Convention. A captured fighter then can either be prosecuted as a violent criminal or detained as a prisoner of war; in the ICRC’s view, there is no third category justifying detention. Hence the controversy about American detention practices at Guantánamo, where detainees have not been accorded all the rights of prisoners of war nor have they all been charged with specific crimes (let alone tried in civilian courts). The 1949 Geneva Convention on Prisoners of War is quite clear in limiting its protections to combatants associated with parties to the convention and even then (if they are not part of the regular military) only when they wear distinctive insignia, carry arms openly, submit to a definite command structure, and conform to the laws of war in their own operations (Art. 4). It is true that Additional Protocol I relaxes these standards to provide greater protection for guerrilla fighters—notably by covering fighters who conceal themselves as civilians until they actually initiate their attacks (Art. 44, Para. 3). But whether even these more relaxed standards apply to al-Qaeda fighters is disputable, and the United States has not, in any case, ratified Additional Protocol I. As a practical matter, one might favor relatively humane treatment of all detainees and still resist application of the full range of Geneva protections. Among other things, the Geneva Convention on Prisoners of War complicates interrogation by guaranteeing prisoners the right to communicate among themselves (Art. 21) or through self-chosen “chaplains” (Art. 36), and by prohibiting rewards (like extra cigarettes or snacks) for cooperation (Art. 28). Geneva rights would also limit the value of information obtained through interrogation by guaranteeing the right of prisoners to communicate with family and friends in their home countries (Art. 71). We cannot expect that by according full Geneva protections to captured terrorists, we will induce their comrades in the field to improve their treatment of captured Americans: these are “combatants” who glorify martyrdom. Meanwhile, we would

If You Need a Friend, Don’t Call a Cosmopolitan

173

reduce incentives to comply with actual treaty provisions by giving the same rights to those who defy treaty conditions of eligibility as to those who conform. Yet for all the cogency of these objections, the cosmopolitan imperative—to treat everyone equally—has made it very difficult for the United States to defend its approach to terrorist detention, even when there are no good alternatives. Despite its initial promise to close Guantánamo, the Obama administration tacitly conceded the lack of reasonable alternatives by continuing to hold detainees there (and declining to mount any strong political advocacy on behalf of proposals to relocate Guantánamo detainees to prisons in the United States). In July 2011, the administration announced plans for the trial of a Somali terror suspect in an American civilian court after he had been held on board a U.S. Navy ship for two months of interrogation (without access to a lawyer or other safeguards of the civilian justice system and without being accorded prisoner of war status under the Geneva Convention). The approach was described in vague terms as “a compromise.” The administration’s reticence in explaining its actual policy says much about the degree to which cosmopolitan assumptions have taken hold in public debate, at least among many constituencies in Western democracies. The next thing that follows, from a cosmopolitan perspective, is that enemy civilians have the same priority as civilians at home. The law of war has, since medieval times, admonished against wanton attacks on churches, schools, and civilian centers. Such cautions, however, presumed that enemies would avoid using such sites to shelter their own fighters. In an era when guerrilla fighters make it a deliberate practice to hide among civilians—making civilians, in effect, human shields for irregular combatants—it is very difficult to avoid harm to civilians. Additional Protocol I, while acknowledging that civilian casualties do not disqualify attacks, goes further than any previous treaty in trying to shield civilians. Not only does it “prohibit” attacks “not directed at a specific military objective” (Art. 51, Para. 4), but it emphasizes that such attacks are equally prohibited “by way of reprisals” (Para. 5); so an enemy may make such attacks without fear of retaliation in kind. And the prohibition extends not only to civilian lives but also to “civilian objects” (Art. 52); so buildings and installations, even when they might be attacked without loss of life (as by attacking at night or after warning of an impending attack), are still protected from retaliation. Even “incidental loss of civilian life” and “damage to civilian objects” is prohibited when “excessive in relation to the concrete and direct military advantage anticipated” (Art. 51, Para. 5b). When there is

174

On Cosmopolitan Alternatives

“doubt whether an object which is normally dedicated to civilian purposes . . . is being used to make an effective contribution to military action, it shall be presumed not to be so used” (Art. 52, Para. 3). Attacks on food supplies of enemy fighters are forbidden if they “may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement” (Art. 54, Para. 3b; emphasis added). There is much room for disagreement on how these requirements might apply in any particular case. The Obama administration has claimed, for example, that the rules do not prohibit missile attacks on civilian houses when there is intelligence indicating the presence of prominent terrorists. The claim has been disputed by some commentators, including a special rapporteur for the U.N. Human Rights Council. But clearly the general thrust is that bad conduct by one side does not justify the other side’s endangering of civilians, nor does protecting one’s own troops, in circumstances of guerrilla conflict, justify putting civilians from another country in further danger. If a ruthless enemy acts in ways that systematically or deliberately endanger civilians—by, for example, situating its own fighters, rocket launchers, or weapons stores in densely populated civilian areas—that does not absolve the opposing forces of their own obligation to protect civilians. Writers who invoke Geneva standards to condemn Western military tactics commonly pay no attention to the practices of the opposing side, let alone to prevailing practice among non-Western fighters. Almost all Western states have gone still further in endorsing a cosmopolitan perspective on combat. Egalitarian sentiment has not only demanded open-ended (and, if need be, entirely one-sided) solicitude for civilians in foreign battle zones but also insisted that soldiers of national armies be judged in the same terms as guerrilla fighters. If it is wrong for guerrillas or terrorists to target civilians, it is wrong for national armies to do so. There is now an International Criminal Court (ICC), launched at an international conference in Rome in 1998. The court’s independent prosecutor can enforce these and other prohibitions (drawn from the Additional Protocols and other treaties) against anyone who violates them. There are certain jurisdictional limits, but they do not prevent the prosecutor from attempting to prosecute soldiers (or civilian superiors) of nations that have not endorsed the ICC treaty—as the United States has not. More strikingly, there is no acknowledgement at all in the ICC statute that the same action might have a different legal or moral significance depending on its political context—whether, for example, it was perpetrated by a regular army fighting a lawless enemy or whether perpetrated by nihilistic forces recognizing no law of any kind.

If You Need a Friend, Don’t Call a Cosmopolitan

175

The ICC has not yet proven itself very effective. Among other things, the court has no way of actually arresting those it might choose to indict. But the mere existence of the ICC, which all European nations have now joined, reflects a remarkable change in outlook. In the early twentieth century, the prevailing doctrine was that no one could be held guilty of a “war crime” if his action was sanctioned by the policy of his own government. The remedy in such cases was diplomatic protest between states or resort to military reprisals (perhaps in kind) against the offending state. Though it is often said that the Nuremberg trials, after World War II, eliminated the defense of “following orders,” the Allied powers who organized those tribunals carefully limited their jurisdiction to officials and soldiers of the Axis powers. Perhaps the lesson is that regular armies should not tangle with enemies that don’t fight by regular means. Following the drafting conferences for the Additional Protocols, the ICRC’s senior legal adviser reportedly explained the underlying point of the new rules: “If we cannot outlaw war, we will make it too complex for the commander to fight!” That might seem a worthy aim if all sides conformed to these rules and all sides therefore found it impossible to engage in war. But when one side is held to these constraints and the other exploits them for advantage, the rules might seem to be encouraging and privileging the most ruthless. Why is that moral? One could say there is a certain Kantian logic to insisting on the rules regardless of the outcome—if one regards moral standards of warfare as morally obligatory. But it is not, to say the least, clear why we should regard victory for the most ruthless as the moral outcome. To see the point, we might turn to the UN Charter. It is often conceived as a highly idealistic, even overly idealistic, document. But the principal drafters were the powers that were just then, in the spring of 1945, achieving a hard-fought victory in a terrible war. They were not at all squeamish about their tactics, and they wrote into the Charter a blanket exemption for any UN interference with the last campaigns of that war (Art. 107). Going forward, the Charter empowered the UN Security Council with authority to impose blockades of offending states by air, sea, and land (Art. 42)—that is, economic sanctions—with no restriction at all to prevent harm to civilians ( just as the wartime blockades of Japan and German-occupied Europe made no exceptions for food and medical supplies). More strikingly, the Charter authorized the Security Council to unleash an international bomber force to compel obedience to its commands (Art. 45). Again, the Charter makes no exception or restriction in favor of protecting civilians. The drafters of the Charter can hardly have been unaware that bombing (particularly with the

176

On Cosmopolitan Alternatives

limited targeting capacities of that era) would often cause much harm to civilians. This provision was agreed on only a few weeks after the fire-bombing of Dresden in which, of course, most of the casualties were civilians. The framers of the Charter assumed the Security Council would only use force in a good cause. But who decides what is a good cause? The cosmopolitan perspective implies that no state can decide that for itself since it would be bound to favor the security of its own people, neglecting the equal rights of everyone else to safety. Of course, that makes it easier to insist on rules that may be ruinous to the side that observes them. From a cosmopolitan perspective, however, that objection may not seem decisive. In earlier times, serious political thinkers, even serious theologians, did not view the consequences of moral doctrines with such loft y indifference. But cosmopolitanism encourages a perspective that abstracts from stubborn realities, like the reality that different nations or different sides in conflicts are not always morally equivalent.

Strategic Perspective and National Honor In medieval Europe, theologians emphasized that the use of all-out force—that is, war—should only be deployed in a just cause. But in a truly just cause, everyone who could lend assistance had some moral obligation to do so. Hence, the most characteristic political phenomena of that era were the Crusades, which were transnational and yet voluntary (in the sense that no international authority, like the Papacy or the Holy Roman Empire, could force kings or knights to participate). Down to early modern times, treatises on war took a dim view of neutrality since it implied indifference to whether the just side would prevail. Thinkers of the Enlightenment shuddered or laughed at the Crusades, not least because they assumed governments must think about hard-headed interests of their own nations. The idea of sovereignty seemed to imply that each state had the right to decide for itself whether to participate in war. Jean Bodin’s sixteenth-century treatise Les Six Livres de la Republique, often taken as the first systematic account of sovereignty, explicitly defended neutrality as an honorable posture because both sides in a conflict would have reason to treat the neutral with respect. But this would be so, as Bodin recognized, only if the neutral were strong enough to defend itself and its capacity to take sides held out as an implicit threat. Two centuries later, Alexander Hamilton seemed to be expressing the common sense of the era when he

If You Need a Friend, Don’t Call a Cosmopolitan

177

warned that the “rights of neutrality will only be respected when they are defended by an adequate power.” So the neutral must be capable of fighting either side when others are at war. From that premise, it might seem only a short step to the conclusion that the neutral should be prepared to take the side whose victory would be most advantageous to its own interests. But there is a claim that steers between the selfless enthusiasm of the Crusader and the cold calculation of the neutral—the claim of national honor. Treatises on the law of nations, while insisting on the rights of each sovereign state to decide for itself, still reserved praise for the nation that displayed its honor by adhering to its commitments and assisting its friends. Even Hamilton, while warning against sentimental impulses in foreign affairs (and defending the Washington administration’s policy of neutrality toward the French Republic and its enemies), acknowledged that a sound policy must uphold the nation’s honor. Down to the early twentieth century, writers on international law acknowledged that nations could not be expected to submit questions of “national honor” to international arbitration. Neutrality—in the sense of not favoring some nations over others— might seem entirely consistent with national honor if all nations could agree on the same standards and procedures for resolving disputes. After the devastating and seemingly pointless carnage of World War I, even neutrals in that war joined the new League of Nations, headquartered in neutral Switzerland. Members of the League could simultaneously affirm their commitment to the security of all while declining to commit themselves to help any particular threatened nations. Whatever its moral appeal, “collective security” failed to work in practice. By the mid-1930s, a revived Germany showed its contempt for the postwar peace settlement by withdrawing from the League and defying treaty constraints on its rearmament. Those nations remaining in the League did not rally to the defense of fellow member Czechoslovak ia in 1938. The desire for peace was so strong that it overwhelmed any concerns about the rights and wrongs of German demands. The Czechs were forced to cede strategic borderlands without any intervention by the League. When Germany invaded Poland the following year, Britain and France declared war, while other members of the League insistently maintained their neutrality. When it was their turn, invaded neutrals (Norway, Denmark, Belgium, and Holland) collapsed without serious resistance. They had trusted in neutrality and never prepared themselves to defend their borders. France itself, which had trusted to its Maginot Line fortifications, collapsed in six weeks and

178

On Cosmopolitan Alternatives

then declared itself neutral in the ongoing war between Britain and Germany. The lesson of this experience was remembered for some time after World War II. Those European neutrals that had been overrun by Germany in 1940 declined, after the war, simply to trust their security to the new universal peace organization, the United Nations. These former neutrals became participants in an alliance, the North Atlantic Treaty Organization (NATO), which bound them all to respond to an attack on any one of them, without waiting for the United Nations to approve their defense efforts. But the appeasement of the 1930s was not irrational, especially if one adopted a cosmopolitan perspective on international conflict. If war could be avoided by ignoring the claims of the weak, might that not result in a greater good overall, considering the terrible carnage sure to ensue in an allout war? The Czechs agreed not to fight and suffered few casualties. The Poles mounted heroic resistance in 1939 (and in their 1944 uprising) and suffered staggering losses. After their own surrender in 1940, French political leaders denounced Britain for prolonging the agony of war. London was bombed. Paris never was. Similar logic could counsel full-scale collaboration. The Dutch, proud hosts to international peace conferences and international courts, were of all European nations the most dutiful and effective collaborators in the Nazi-directed genocide. Why risk more bloodshed by trying to resist? Collaboration in evil might be discreditable, but didn’t the collaborators have as much claim to save themselves as those they gave up to be murdered? The traditional answer to these quandaries was that a nation must defend its own people. When a government can’t defend its people, it must do what it can to defend the national honor. It is true that “national honor” is a rather amorphous consideration. It is often an ineffectual appeal and may sometimes be a dangerous one if it rouses nations to an excessive degree of prickliness or belligerence. It is also true that national honor is often invoked as a moral reinforcement for policies already counseled by self-interest. But in novel or extreme situations, it is often uncertain where self-interest lies because it is so uncertain how things will play out. The British could not be at all sure of their prospects in 1940. But they certainly understood that if they acted a weak part, they would forfeit any future claims to special respect in the world. The resistance of the Poles and the Finns did win those peoples more respectful treatment from Soviet victors after 1945, securing them a greater degree of national independence, certainly compared with other nations that had shown themselves easier to

If You Need a Friend, Don’t Call a Cosmopolitan

179

overawe. Nations not yet facing such extreme challenges can hope to deter potential enemies through strategic alliances, as nations in Western Europe did with NATO. But what holds alliances together when the interests of the members diverge? Without some sense of national honor—the idea that the nation must play an honorable part in international affairs—the temptation to calculate on short-term advantage may be much harder to resist. Honor was important in premodern societies (and still is in less developed societies) because the known readiness to fight and to keep one’s word helps maintain order when there is no central enforcement authority. Given the chronic paralysis of the U.N. Security Council, nations are still in that situation: they cannot assume their security will be reliably assured by global authority, so they must worry about their own national standing in the community of nations. Cosmopolitanism, however, sets itself against something so particular as national honor. National honor appeals to a sense of pride and distinctiveness, to the reputation of the particular nation in the wider world. The cosmopolitan looks to the imagined concerns or interests of humanity at large. Not so long ago, the implications were readily grasped, even in Europe. When Western Europe felt most threatened by Soviet aggression, in the first decades of the postwar era, politicians spoke not of “humanity” but of “the Free World”—understanding that the Free World might need to threaten devastating nuclear retaliation to deter its enemies, even if that meant threatening to kill millions of Russian civilians. Even in the 1950s, there were those who took a more universalist perspective: “Better Red than dead” was not an endorsement of communism but a plea for escape from confrontation, effectively a plea for neutrality. By the 1980s, “peace movements” in Western Europe were more insistent in their opposition to preparations for defense. With the collapse of the Soviet Union, a certain kind of disengagement from conflict came to be regarded by many more Europeans as morally compelling. The results were on display in the first decades of the twenty-first century. The new European Union was strongly attached to international institutions but more so to the supposed safe haven of neutrality. Some European states joined the Anglo-American coalition against Saddam Hussein in 2003, but France and Germany and a number of others refused to participate in a war that had not been sanctioned by the United Nations. Within a few years, however, an elected government in Iraq, whose sovereignty was recognized by the United Nations, faced a vicious guerrilla insurgency, drawing nihilistic Islamist extremists from across the world. Even with U.N. sanction for

180

On Cosmopolitan Alternatives

assisting the new Iraqi government, most European states remained effectively neutral. The same pattern emerged with the war in Afghanistan. That war was sanctioned by the UN Security Council from the outset and formally endorsed by NATO. But apart from the British, no NATO nation made more than a token contribution to the military effort, despite continued pleas from NATO commanders for reinforcements. The Netherlands did make such a gesture. The Dutch government then became the first NATO participant to order complete withdrawal of its forces from Afghanistan at a time when American military planners were trying to organize a “surge” of troop reinforcements. One could argue that the Afghan war was mismanaged. One could argue that Afghanistan did not have sufficient strategic importance to justify continuing Western military efforts there. But was it really of no consequence to Europe if NATO were shown to be an alliance whose commitments could not be trusted? A similar pattern was evident in the ongoing conflicts between Israel and terror forces on its borders. European Union officials and European governments have routinely condemned terror attacks on Israel and rocket attacks on Israeli civilians from Lebanon and Gaza. But European authorities were much louder in their condemnations of the military responses that Israel has periodically adopted to suppress suicide bombing or rocket attacks, as if there were some well-proven nonmilitary way of stopping such attacks. In effect, Europe has adopted a stance of neutrality in the conflict between a fellow democracy and the terrorist forces seeking to destroy it. Do Europeans imagine this posture will discourage the terrorists? Such cosmopolitan detachment now seems quite engrained in European strategic thinking. War is wrong—no matter who started the violence, no matter what the purpose of the fighting might be, no matter what the actual result of condemning violence on all sides might be. European states gathered with others in the summer of 2010 to consider an amendment to the Statute of the International Criminal Court, extending the court’s jurisdiction to cover the previously undefined crime of “aggression.” Europeans agreed to endorse a definition of “aggression” that tracks a 1974 General Assembly resolution—from the era when Third World majorities railed against Western “neo-colonialism” and “Zionist racism.” This definition of “aggression” makes no reference at all to the purposes or provocations that might justify force; it seems to allow the use of military force (when not authorized by the Security Council) only for resisting a full-scale military invasion by

If You Need a Friend, Don’t Call a Cosmopolitan

181

another state. Terrorism is excluded from the definition of “aggression,” as if terrorist attacks were unworthy of the court’s attention and, therefore, as a matter of legal principle, unworthy of an armed military response. In the spring of 2011, Britain and France took the lead in a NATO bombing campaign in Libya. Though authorized by the United Nations as a humanitarian measure to protect civilians in the midst of a rebellion, Western leaders were clear from the outset that they sought the removal of longtime dictator (and recurrent sponsor of international terror attacks), Muammar Gaddafi. But British leaders also emphasized that all their actions would be consistent with the contemporary law of armed conflict and the prohibitions enforced by the ICC. The ensuing campaign did not go smoothly. Even with crucial American assistance at the outset (to knock out Libyan air defenses) and in the last stages (to pinpoint the location of military units loyal to Gaddafi), the Anglo-French air campaign dragged on for six months, while Libyan rebels on the ground struggled with Gaddafi’s “ragtag army.” As the New York Times noted, NATO operations were “plagued” by deficiencies in “specialized aircraft, bombs and targeting specialists”; so the “wealthy nations of Europe” proved unprepared even for “a limited mission in their own backyard that involved no commitment of ground troops.”  How would European governments respond if their own cities or their own citizens were attacked? Recent experience does not inspire confidence. Following terrorist attacks in Madrid in 2004, Spanish voters elected a new government that promptly sought security by withdrawing the Spanish military contingent then fighting with Anglo-American forces in Iraq. Peace would be sought through neutrality. Or perhaps by tilting a bit to the side of potential attackers. In 2005, a Danish newspaper published satirical cartoon depictions of Muhammad. Mobs attacked Danish embassies in a string of Muslim countries. More than a hundred people died in the resulting melees. The European Union promised to take more active measures to restrain “Islamophobic” expression. In 2004, a Moroccan immigrant murdered Dutch fi lmmaker Theo van Gogh for making a fi lm critical of the Koran. The Dutch government duly arrested and prosecuted the perpetrator. A year later, it revoked the citizenship of Ayaan Hirsi Ali, a Somali refugee who had collaborated with van Gogh in making the fi lm, although Hirsi Ali was by then a member of Parliament. Then the Dutch government spent three years trying to prosecute Geert Wilders, leader of the country’s third largest party (advocating restrictions on immigration) for “hate speech” against Muslims. After disorderly protests from pro-Palestinian demonstrators at The Hague, the

182

On Cosmopolitan Alternatives

mayor tried to prohibit a Christian group from displaying pictures of Israelis killed by terror attacks on the grounds that such a display would provoke more disorder. In 2010, Frits Bolkestein, elder statesman (and former leader) of the Dutch Liberal Party, advised “identifiable Jews” to leave the country because the Dutch government could not be expected to take the measures necessary to protect them from violent attacks. A shrewd British writer summed up the pattern as “the new Vichy syndrome”—the impulse to seek safety by refusing to confront enemies. As in the past, however, there is a certain logic to such stances. If you are not willing to confront those who threaten you, it is best to come to terms with their demands or at least try to avoid offending them. Confrontation and conflict could cause much bloodshed and suffering. If you are committed to the cosmopolitan idea that every human life has equal moral value, how can you embark on a policy that risks that result? From a cosmopolitan perspective, it might seem especially questionable to resist enemies who extol casualties on their side as heroic martyrs and so will likely continue fighting until casualties (even on their side) have run to very considerable numbers. You might resist this logic by arguing that the cause of liberal democracy is a just cause. You might argue that your way of life is worth defending, even if that defense may require you to confront force with greater force. But how can a cosmopolitan say that Western democracies are worth defending, if that requires doing great harm to people in other nations or to adherents of rival political visions? If cosmopolitan principle requires us, as David Held says, to regard “each person as equally worthy of respect and consideration”— that is, “each person” in the world, because “human kind belongs to a single moral realm”—how can Western democracies insist on defending themselves, even at home, if that risk conflicts with more numerous followers of alternative political visions? You might say, even if reasonable people may disagree about the best political doctrine, your national honor requires that you not give in to intimidation. But isn’t that placing your nation’s honor above the claims of humanity? How can that be consistent with cosmopolitan thinking? There may be plausible arguments for reconciling the moral claim of self-defense with a cosmopolitan vision of universal political equality. There are, no doubt, other factors now drawing Europeans toward disengagement and appeasement, as there were in the 1930s and 1940s. But a certain hazy cosmopolitan faith seems to make it easier to imagine that all conflict is imaginary and readily resolved with cosmopolitan pieties. If cosmopolitans

If You Need a Friend, Don’t Call a Cosmopolitan

183

refuse to recognize any enemies, a cosmopolitan outlook is the enemy of strategic thinking.

Peaceful Cosmopolitan Projects Cosmopolitan thinking looks more plausible in a world at peace. If cosmopolitan thinking makes it hard to engage in armed confl ict, you might think writers who embrace this vision would focus on other topics. In fact, debate about the law of war and overall security strategy in Western nations seems to reflect background cosmopolitan assumptions more than particular programs of particularly well-recognized thinkers. Do cosmopolitan prescriptions look more compelling when removed from the shadow of war? There are certain trends in other areas that might seem to justify cosmopolitan optimism. Peter Spiro points out, in his provocative book, Beyond Citizenship, that even the United States has been moving toward a world where the “rights and obligations attendant to citizenship” seem to matter less and less. He argues that the “declining significance of the status betrays and reinforces the waning intensity of bonds among members.” Among other changes, foreigners (at least those from a growing list of other countries) can attain U.S. citizenship without renouncing citizenship elsewhere. Even so, long-term foreign residents of the United States have become less likely to seek American citizenship: the proportion of those in residence from ten to fourteen years seeking citizenship dropped from 64 percent in 1970 to only 37 percent by 2003. Laws prohibiting discrimination protect foreign residents from most sorts of economic hardship. Most government ser vices remain available to noncitizens. Noncitizens cannot vote, of course, but Spiro questions whether even that limitation can be maintained for long: “areas with concentrated immigrant populations,” he notes, will start to look like “ ‘rotten boroughs’ in which a rump group of citizens . . . is overrepresented relative to citizens in other districts and is able to exercise preferences without regard to the noncitizen community in its midst.” On the other hand, if there are difficulties absorbing or accommodating large numbers of noncitizen residents, Spiro argues that restrictions on continuing immigration still seem “suspect” under “liberal” views of “equality.” The obvious objection to this trend is that Western political institutions, guaranteeing democratic accountability and individual rights, are not universally respected. What if immigrants, who choose not to become citi-

184

On Cosmopolitan Alternatives

zens, also choose to reject or oppose the constitutional principles of host nations? In Europe, there is now open debate about whether populations from Muslim countries, with their very different traditions, are prepared to support Western-style democracy and free speech. From a cosmopolitan perspective, however, there is no need to worry: international human-rights norms, Spiro insists, “affect state behavior, even without the establishment of a global super-state,” so much so that “it is possible to conceive domestic institutions [of rights protection] as agents of the international system and domestic rights as complementary to international ones.” So if violence and the threat of violence intimidate Dutch officials into imposing more constraints on open debate about Islam, those who care more about free speech can simply appeal to . . . the United Nations? But Muslim states already dominate the Human Rights Council and clamor for international controls on Islamophobic expression. Perhaps people who preferred the liberal traditions of the Netherlands will receive a more sympathetic treatment from the European Court of Human Rights. But why would a government intimidated by immigrant thugs not prefer to risk defying the judges in Strasbourg? Even Spiro concedes, however, that “the retreat of the nation-state and the rise of some sort of universal citizenship would lay a blow to public welfaretype undertakings” since “it is unlikely that state-to-state subsidies (a.k.a. ‘foreign aid’) will ever amount to much; there is no prospect of direct global taxation on individuals to support redistributive programs, even looking to the long run.” But Spiro has less imagination than other advocates of cosmopolitan thinking. A recent volume, bearing the imprimatur of the UNESCO “Philosopher’s Library” and published by Oxford University Press, showcases the thinking of an international array of professors in Freedom from Poverty as a Human Right. Stéphane Chauvier of the University of Caen insists that “people are in no way responsible for their poverty,” and so they have a right to demand that governments cure it. Unfortunately, Chauvier does not explain the mechanism by which this right would be enforced. Osvaldo Guariglia offers a concrete suggestion: the monitoring committee of the U.N. International Covenant on Social, Economic and Cultural Rights should be empowered to hear individualized complaints. That mechanism, as he notes, is now in place under the parallel committee monitoring compliance with the International Covenant on Civil and Political Rights. Guariglia does not, however, devote any space to explaining what it is, in the experience of

If You Need a Friend, Don’t Call a Cosmopolitan

185

this latter committee, that gives any reason to expect U.N. monitoring to change the actual policies of governments. The most careful and articulate writer on this subject is Thomas Pogge, who edited the Oxford volume. He wants more direct aid from rich countries to poor countries on the theory that “human rights” claims should be addressed, not only to each person’s own country but to all “moral agents” who might assist. In more detail, he urges changes in the standards for international trade currently set by the World Trade Organization. He concedes “most severe poverty would be avoided, despite the current unfair global order, if the national governments and elites of the poor countries were genuinely committed to ‘good governance’ and poverty eradication.” But he then argues, “Oppression and corruption, so prevalent in many poor countries today, are themselves very substantially created and sustained by central features of the present global order.” So Pogge demands that international economic institutions be restructured to ensure such things as a global minimum wage and various economic sanctions on corrupt governments. One might question whether these proposals would actually be helpful. Many experts, for example, think a global minimum wage would stifle development in the poorest countries. One might also wonder whether corrupt governments would really reform their ways in response to such pressures since economic sanctions have not had a particularly good record in other contexts. Corrupt officials, after all, would find ways to shield themselves, as Saddam Hussein did in the 1990s when Iraq was supposed to be subject to economic sanctions. As it is, other critics already protest that the World Bank is now too much under the control of rich nations (who provide the funds) and demand more “accountability”—that is, more control in the hands of poor countries (the borrowers). If the World Bank tried to follow Pogge’s demands— refusing, for example, to loan money to the most corrupt governments—why wouldn’t these governments simply join with others to redirect the bank’s policy? That is certainly the history of UN committees on human rights: the most repressive governments routinely get themselves elected to these bodies and then use their position to stifle potentially awkward inquiries about their own human-rights records. Even if there were more reason to be confident that Pogge’s prescriptions are sound, how to persuade rich nations to go along? He assumes that not only the World Bank but also the World Trade Organization and other institutions can be refashioned into a system for implementing the good

186

On Cosmopolitan Alternatives

suggestions of cosmopolitans. Perhaps this new system would be fair. As Pogge notes, direct financial aid from Western states to poor countries actually “shrank through the prosperous 1990s” and reovered only somewhat “in the aftermath of the invasions of Afghanistan and Iraq,” remaining very far below levels of aid recommended by the United Nations. Still, what if important governments resist? What if some important states, like China or even the United States, refused to go along with cosmopolitan prescriptions? Wouldn’t this, as in proposals to deal with global warming, discourage serious concessions from others? Or would there be some mechanism to compel recalcitrant states to respect rules and standards they had not actually endorsed in international negotiations? Could there be some mechanism to force them to continue providing resources for programs or priorities they had rejected in international bargaining? Where would that leave those national constitutions that require legal standards and financial appropriations to be approved by national legislatures? Could national constitutional barriers simply be overridden by global cosmopolitan authority? What then would stop the majority of poor countries from imposing more extreme policies designed to transfer wealth from the rich to the poor without limit? Gillian Brock concedes that “in the real world most people have strong attachments to their own nations and a realistic utopia must accommodate this.” But she cautions that before we can “focus on the needs of our compatriots,” we may “first need to answer questions about the fair ownership of resources. We cannot presume that the resources currently under a particular nation’s control constitute a defensible allocation. So we must settle the issue of fair distribution of resources and along with it the issue of what we owe others because what we may spend on co-nationals can be decided in a morally acceptable fashion only if we have settled the issue of what resources we legitimately have at our discretion.” Brock does not explain what authority would be empowered to “settle” these “resource” issues for the whole world. Even this program of “realistic utopianism” seems to skimp a bit on the “realistic” part. If the world is going to be organized to transfer resources on this scale, without (it seems) requiring the specific consent of the paying nations, the world must be organized in ways that far exceed what now exists or ever has existed in human history. Democratic governments do not even presume to undertake this sort of ground-up reconsideration of all claims to the private ownership of “resources” within their own countries. How easily could a world authority determine a fair reallocation of territory and resources across the whole world? Who would control this new global power? Who would

If You Need a Friend, Don’t Call a Cosmopolitan

187

guard it from abuse? Who would be bound (or able) to support it when its allocations were challenged? During the banking crisis in 2010, Germans resisted the allocation of national tax dollars to Greece, a fellow EU state. They had other priorities at a time of economic strain. And they worried that bailouts would subsidize bad economic policies in Greece and encourage other debt-ridden E.U. states to behave irresponsibly in expectations of a future bailout. If Europeans have trouble agreeing on their obligations to relatively small, relatively similar, and relatively affluent countries in the same political “Union,” how ready will they be to accept a global reallocation of resources to billions of poor people spread through Africa, Asia, and Latin America? To say that cosmopolitan projects of this sort are utopian does not go far enough. They seem premised on the notion that incantations like “global justice” or “human rights” will override all competing concerns; so merely identifying a problem will guarantee an adequate response, mobilizing vast resources and coercive authority from nations around the world. How we actually get from here to there is not of much interest to such writers, still less whether there are disturbing dangers on the route—or at the supposed final destination. Major questions are not just left unanswered. The implicit answer—assume a different world—scarcely helps us frame reasonable questions. Perhaps it is a harmless thought experiment. But it risks encouraging a  general mood of escapism. By making impossible moral demands, such cosmopolitan appeals may actually encourage an atmosphere of retreat from reasonable responsibility. Elsewhere, for example, Pogge tries to stir the conscience of contemporary readers with this analogy: if citizens of affluent democracies remain passive in the face of terrible afflictions in the poorest countries, they will be like Germans who remained passive in the midst of the Holocaust. Germans have spent many decades trying to reassure themselves and their neighbors that they have repudiated their terrible past. More than fift y years after the end of the war, the German government set aside a sizable tract of land in the center of Berlin to memorialize the victims of the war time genocide. On Pogge’s telling, all that handwringing about past German crimes was a pointless exercise, since people in Omaha and Winnipeg are just as guilty—having read about suffering on the other side of the world and done nothing. If we are all responsible for everything, are any of us really responsible—really—for anything? No doubt Pogge (and others who cite his analogy with approval) mean to make a different point. They do not mean to minimize the actual histories

188

On Cosmopolitan Alternatives

of actual nations but to mobilize the conscience of today’s more enlightened humanitarians. Still, the sting of the analogy is the implication that affluent nations in today’s world are on the same plane morally as Germany during the worst period in its history. Germany and its war time partners have, in fact, managed to maintain relatively stable, tolerant democracies for many decades now—a remarkable achievement given the depths to which they had fallen. The United States, Britain, and Canada contributed the military force that made this recovery possible and then, unlike all past conquerors, allowed Germany and its wartime vassals to recover their independence and their dignity. Together, these nations organized effective resistance to communist tyranny in the East, and that resistance made possible the liberation of Eastern Europe, too, decades later. To say that the nations of the Western alliance are at some level no better than the Nazi tyranny is to say that they are not worth defending. The point, no doubt, is to demand that liberal democracies cede their independence to the coming order of cosmopolitan justice. What is it that makes cosmopolitans think that by characterizing liberal democracies as unworthy of defense, they are preparing for a better world? History suggests otherwise. But it is a history of particular nations. Cosmopolitans seem to pride themselves on indifference to the actual history of actual nations. Those who lived in these nations lived there by chance, as cosmopolitans tell us. In cosmopolitan thinking, the abstract doctrine of equality displaces the actual human experience of all previous generations of human beings.

Chapter 10

The Physico-Material Bases of Cosmopolitanism PHENG CHEAH

A

s children of globalization who are accustomed to celebrating the virtues of deterritorialized flows, we sometimes forget why in the history of the Western world, a territorially bounded form, the polis, emerged as the norm for the political organization of collective life. In Hannah Arendt’s admittedly idiosyncratic view of things, the binding of human action to the bounded, enclosed place of the polis by nomos was necessary to check the otherwise limitless unpredictability and lack of moderation of human action. By means of this enclosing, actions could be given an enduring form that would enable their survival beyond the corrosion of finitude. The Greeks . . . set limits to action by means of the nomos [in den Nomos einzugrenzen] and . . . interpret[ed] the law not as a link [Bindung] and a relationship but rather as an enclosing border [eine Grenze und etwas Einschließendes] that no one should overstep. . . . The relationships arising through action are and must be of the sort that keep extending without limits [Grenzenlose]. By linking men of action together, each relationship established by action ends up in a web of ties and relationships in which it triggers new links, changes the constellation of existing relationships, and this always reaches out ever further, setting much more into interconnected motion than the man who initiates action ever could have foreseen. The Greeks countered this thrust toward limitlessness [Grenzenlose] with the nomos, limiting [beschränkt] action to what happens between men within a polis. . . . This is how . . . action becomes

190

On Cosmopolitan Alternatives

political in the first place, which is to say bound to the polis and thus to the highest form of human communal life. The nomos limits [beschränkt] actions and prevents them from dissipating into an unforeseeable, constantly expanding system of relationships, and by doing so gives actions their enduring form [die bleibende Gestalt], turning each action into a deed that in its greatness—that is, in its surpassing excellence—can be remembered and preserved. Thus the nomos becomes a counterforce to the transience [Flüchtigkeit] of everything mortal. . . . to the transience of the spoken word and to the fleeting moment of the accomplished deed. The boundlessness of human action means that it needs to be territorially fi xed and bounded so that it can leave a permanent mark. This is the original meaning and end of territoriality, the legal-political rule of a territory that establishes ties between its inhabitants in order to constitute them as citizens or members of the political body. Arendt’s remarks indicate that there is something inherently proper about the territorial state form, so much so that we regard extraterritoriality as improperly excessive because it extends political control beyond the proper borders of a political body. We clearly live in an era where this norm is being eroded. The processes of deterritorialization that characterize globalization challenge the territorial state’s ability to regulate various kinds of flows that traverse and exceed its borders. But deterritorialization could only be given a positive valence because the delegitimation of the territorial state had already begun in the nineteenth century, when it was viewed as an institution with oppressive practices toward noncitizens as well as its own citizens. Particularistic states often secured their authority by means of the equally particularistic ideology of official nationalism. In this context, deterritorialization is said to generate the material conditions that produce paradoxical and even impossible forms of national-state belonging that render it aporetic (for example, long-distance nationalism, multiple citizenship, and binationalism) and pave the way for the emergence of a form of political belonging that is universally inclusive and genuinely human because it transcends borders and the particularistic interests that invest and maintain these borders. Even when the old-fashioned name “humanity” is no longer used, we see this theme of political belonging with global reach in recent arguments about global citizenship, such as Michael Hardt and Antonio Negri’s suggestion that the global multitude should have a right to citizenship based on work.

The Physico-Material Bases of Cosmopolitanism

191

In the past two decades, another philosophical term has been transformatively revived and used as a name for this emergent form of globalized political belonging: cosmopolitanism—literally, the principle of world citizenry or the ethos or consciousness of belonging to a world or being a citizen of the world. Strictly speaking, cosmopolitanism is an effect of deterritorialization, although it has been confused with the latter. Cosmopolitanism is also not identical to humanity but is instead an institutional means for the self-making of humanity insofar as belonging to and sharing (in) the same world brings out and enables us to recognize our common humanity that is the basis of this sharing of the world. Th is is why cosmopolitanism is always viewed as intersecting in some way or other with human rights. In this chapter, I argue that we cannot take for granted this assumed continuity between deterritorialization, cosmopolitanism, and humanity. This is because the deterritorialization of biopolitical technologies have not led to the rise of cosmopolitan belonging but instead to a curious alignment between the territorial state and the making of humanity that has effectively shored up the state’s authority by regrounding it in human rights. At the same time, this interpenetration of state power and human rights has aporetic consequences for subjects of transnational labor today. The first and second sections of this chapter elaborate on the continuity between deterritorialization, cosmopolitanism, and humanity assumed by the discourse of new cosmopolitanism and the roots of this assumption in the writings of Immanuel Kant and Karl Marx. The third section looks at the oppressive consequences of the complex making of humanity through second- and third-generation human-rights instruments understood as technologies of global governmentality.

Cosmopolitanism, the Very Idea It is by now commonplace for proponents of new cosmopolitanisms to distinguish between cosmopolitanism as a normative idea and a set of experiences and real practices, cosmopolitanism as an ideal project, and actually existing cosmopolitanism. It is argued that growing cosmopolitan connections at the level of everyday life brought about by globalization supplies the material basis for the development of cosmopolitanism at the level of political consciousness and institutions, thereby rendering obsolete the merely ideal-normative cosmopolitanism of philosophical discourse. The motif of vision or perspective is central to this argument insofar as a new scopic

192

On Cosmopolitan Alternatives

regime must be set in place so that we can perceive this everyday cosmopolitanism and grasp its implications for the actualization of a political cosmopolitanism that is superior to the merely ideal cosmopolitan perspective of the moral imagination. Ulrich Beck’s exemplary work brings out the three moments of actually existing cosmopolitanism’s scopic regime succinctly. In a 2004 article entitled “Cosmopolitan Realism,” Beck exhorts us to distinguish normative philosophical cosmopolitanism from existing practical cosmopolitan processes and argues for the importance of a third form of cosmopolitanism that can mediate between the two. The cosmopolitan reality of the twentyfirst century, he suggests, can only be properly understood and, indeed, perceived if there is a methodological or epistemological form of cosmopolitanism in the social sciences. This epistemological cosmopolitanism is not only a means of representing cosmopolitan reality. It is also an indispensable component of an active process of cosmopolitanization because it creates a new objective field, or better yet, brings into clear focus, into the light of phenomenality, a field that both exists and is in the process of becoming. With the concentration of on analytic-empirical cosmopolitanism— that is with the demonstration that a cosmopolitan perspective is epistemologically necessary for a world without frontiers—a new field opens up [to the light of day!] for research and controversy: the real-world cosmopolitanism of the early twenty-first century. . . . A new way of constructing sentences must be found: this is the stirring task that remains to be fulfi lled in the face of the reality of cosmpolitanization. In the age of national modernity, cosmopolitan realism could hold sway only in people’s heads; it could only be conceptualized, not experienced. Nationalism, on the other hand, resounded in people’s hearts. This dualism of head and heart has been reversed in the second modernity where everyday life is banally cosmopolitan, while in the head . . . the conceptually suggestive power of the national dimension continues to work its hidden tricks without interruption. In accordance with the philosophy, or practice distinction . . . I will distinguish between cosmopolitanism and actually existing cosmopolitanization. The starting point here is a rejection of the claim that cosmopolitanism is a conscious or voluntary (or even

The Physico-Material Bases of Cosmopolitanism

193

elitist choice). The term “cosmopolitanization of reality” is meant to signal that we are talking also, or even mainly of a compulsory choice or a side effect of unconscious decisions. . . . ‘Cosmopolitanization’ means latent cosmopolitanisms, unconscious cosmopolitanisms, passive cosmopolitanisms, which shape reality as a side effect of world trade or global dangers (climate disaster, terrorism, financial crisis). Without my knowing or explicitly willing it, my existence, my body, my “own life” become part of another world, of foreign cultures, regions and histories and global interdependence risks. Despite Beck’s repudiation of the philosophical approach to cosmopolitanism, the allusions to Marx and Freud in this remarkable passage are unmistakable. In the contemporary world, he argues, the nation-form functions as an ideology that prevents us from seeing and cognizing cosmopolitanism, despite the fact that it has been actualized in everyday life. The mystificatory forms of an outmoded national perspective (national ideology) make us blind to the global forces that have created everyday cosmopolitanism, effectively repressing them into the unconscious and preventing us from regulating them. Hence, our everyday cosmopolitanism is merely necessitated or dictated to us. The importance of Beck’s cosmopolitan vision lies in the fact that a methodological cosmopolitanism will dissolve these ideological blinkers and lift the bar of repression. It will bring these merely unconscious global forces into the light of consciousness. Once we can recognize ourselves as members of a cosmopolitan reality, we can better understand our cosmopolitan existence from a practical standpoint and transform it progressively. In subsequent work, Beck has somewhat tempered his cosmopolitan vision by emphasizing that radical uncertainty, the hallmark of modernity, is a fundamental feature of global forces. Although this uncertainty cannot be overcome by more knowledge, we have responded to it through the concept of risk, which “amalgamates knowledge and non-knowing within the semantic horizon of probability” and promises a degree of control through calculation. Hence, societies, insofar as they are based on a “risk contract,” a promise to control and compensate for the insecurities and dangers created by modern industrial life, ought to be regarded as “risk societies.” As an analytical category, “risk society” enables us to reflexively thematize and, therefore, to problematize “the assumption that it is possible to control and compensate for industrially generated insecurities and dangers.” “The dynamic of risk

194

On Cosmopolitan Alternatives

society rests . . . on the assumption that . . . we live in a world that has to make decisions concerning its future under the conditions of manufactured, self-infl icted insecurity. Among other things, the world can no longer control the dangers produced by modernity; to be more precise, the belief that modern society can control the dangers that it itself produces is  collapsing—not because of its omissions and defeats but because of its triumphs.” What distinguishes world risk society from risk society is its cosmopolitan dimension. The recognition that there are global risks that cannot be regulated by individual nation-states leads to new cosmopolitan solidarities around how to respond to such global threats as environmental crises and global economic threats. Hence, in Beck’s view, “world risk society sets free a ‘cosmopolitan moment.’ . . . Global risks force us to confront the apparently excluded other. They tear down national barriers and mix natives with foreigners. The expelled other becomes the internal other, as a result not of migration but of global risks. Everyday life is becoming cosmopolitan: human beings must lend meaning to their lives through exchanges with others and no longer in encounters with people like themselves.” What remains constant throughout Beck’s writings is his faith in the rationalreflexive construction of cosmopolitan solidarities and the regulative power of such solidarities, however qualified, over global forces. The final line from the previous quotation suggests that exchange with others can help us develop cosmopolitan solidarity. Elaborating on this point, Beck’s earlier essay reveals the kernel of truth contained within the outer shell of banal everyday cosmopolitanism. “The cosmopolitan perspective and cosmopolitan sensibility open up a space of dialogic imagination—as a practice in everyday life and in the sciences relating to it. Cosmopolitan competence, everyday and social-scientific, forces people to develop the art of translation and bridging. This includes both the location of one’s own lifestyle within the horizon of other possibilities, and the ability to see oneself from the viewpoint of those who are culturally other—as well as to practise this within one’s own experiential space through the imaginative crossing of boundaries.” The cosmopolitan perceptual regime produces nothing other than the classical idea of universal humanity, now injected with an appropriate dose of multiculturalism insofar as humanity is reconceived as the open space or terrain of dialogue and translation that can be inclusive of the otherness of each and every cultural other. The scopic regime of the new cosmopolitanism has three fundamental traits. First, it is informed by a classical conception of the attainment of human progress through rational insight, figured as vision, namely, the

The Physico-Material Bases of Cosmopolitanism

195

importance of a new way of perceiving things. Second, actually existing cosmopolitanism is an important material support for the genesis and actualization of humanity. Third, universal humanity, the community of all human beings, is reconceptualized as a dialogical space of strategic negotiations in which cultural differences can be recognized, accommodated, and respected. What is striking about the new cosmopolitanism’s scopic regime is the fluency of the development of cosmopolitanism from deterritorialization and the genesis of humanity from actually existing cosmopolitanism. Existing cosmopolitanism and the rational insight and competence we gain from it are the means for reconfiguring a more sensitive, fuller sense of humanity. Humanity is the telos or idea, both ground and horizon, the “for the sake of which” of existing cosmopolitanism, which is the material, practical means for the realization of humanity. Since humanity is now reconceptualized as an ethical (sittlich) space of dialogue, it is not a set of natural essences but an ongoing rational project of collective human self-making. Cosmopolitanism is a fundamental instrumentality in this project. It is a form of mediation through which each individual can recognize him- or herself as part of this self-making of humanity.

The Cosmopolitan Character of Society and the Delegitimation of the Territorial State Despite the claims made about the novelty of these arguments about actually existing cosmopolitanism—indicated by such terms as manifesto or new cosmopolitanism—and despite their attempts to distance themselves from philosophy, the new cosmopolitan vision would not have been possible without the delegitimation of the territorial state and the nation and the elaboration of cosmopolitanism’s material basis initiated by Kant and Marx. The fundamental role in the self-making of humanity that they both attribute to cosmopolitanism derives from the fact that they characterized the extensiveness of true sociality as “cosmopolitan.” In other words, the real basis of the cosmopolitan perspective is the form of collective human existence we call society. In Kant’s philosophical system, the cosmopolitan world federation is a regulative idea whose function or end is to organize individual human lives so that they can approximate the systematic totality of an empirical human consciousness in general. Kant calls this human consciousness in general humanity, stressing that it is merely an idea or abstraction. Although he

196

On Cosmopolitan Alternatives

primarily discusses cosmopolitanism in terms of the institutionalized right to hospitality, hospitality is patently a form of sociality because it is something due to a neighbor. Cosmopolitan right (Weltbürgerrecht), Kant suggests, has come into being and now governs relations with foreigners or strangers because our contemporary existence is such that nations or peoples form a worldwide community (Gemeinschaft). In his words, “individuals [Menschen] and states, standing in the relation of externally affecting one another [in äußerem auf einander einfließendem Verhältnis stehend], are to be regarded as citizens of a universal state of mankind [als Bürger eines allgemeinen Menschenstaats] (ius cosmopoliticum).” For Kant, the basis of cosmopolitanism is a form of society that extends throughout the physical world. Despite his endorsement of absolute state sovereignty, the gradual process of the delegitimation of the territorial state is actually set off here. Kant suggests that a state can only be genuinely legitimate if its constitution respects not only the right of its own citizens (civil rights) and the right of other nations in interstate relations (international right), but also cosmopolitan right. The accord between a constitution and these three kinds of right would correct and temper the absolute sovereignty of the state and save it from despotism. This (re)legitimation of the state through right is also a delegitimation because it is a sharing or dividing of legitimation. Kant figures this delegitimation as obeisance on the part of the state. People within a state as well as states in their relations with one another must act in accordance with those [pure] principles [of right], regardless of what objections empirical politics may bring against them. True politics can therefore not take a step without having already paid homage to morals. . . . The right of human beings must be held sacred, however great a sacrifice this may cost the ruling power [der herrschenden Gewalt]. One cannot compromise here and devise something intermediate, a pragmatically conditioned right (a cross between right and expediency); instead, all politics must bend its knee before right, but in return it can hope to reach, though slowly, the level where it will shine unfailingly. Cosmopolitan society can temper state sovereignty because in Kant’s view, sociability is the internally defining characteristic of humanity. Hence, a sociability that is cosmopolitan in its reach can be a power for the institutional organization of humanity. As he puts it in the third Critique, “humanity [Humanität] means on the one hand the universal feeling of participation

The Physico-Material Bases of Cosmopolitanism

197

[das allgemeine Teilnehmungsgefühl] and on the other hand the capacity for being able to communicate one’s inmost self universally [sich innigst und allgemein mitteilen], which properties taken together constitute the sociability [Geselligkeit] that is appropriate to humankind [Menschheit], by means of which it distinguishes itself from the limitation of animals.” Sociability is enhanced by cultivation through the fine arts and sciences because they instill in us “a universally communicable pleasure [eine Lust, die sich allgemein mitteilen laßt]” that makes us want to communicate with others at the same time that cultivation make us more refined and “better mannered for society [gesittet machen].” The optimal state of cultivation is achieved under a cosmopolitan federation since it brings about a state of peace in which states can then devote themselves to cultivating their citizens instead of going to war. In this way, the predisposition to unlimited sociability that defines humanity is facilitated by a positive form of society. Even though it is an instrument that is not internal to humanity but something that arises from self-interest, the cosmopolitan federation brings out our predisposition to sociability. Cosmopolitan society is the institutional framework for the self-making of humanity, the means by which we can recognize ourselves as members of humanity. In Kant’s view, its material basis is trade. Commerce is the primary form of existing intercourse that encourages the formation of a rightful cosmopolitan whole. It is nature’s way of guaranteeing peace because it makes a people want to be neighbors with other peoples. It brings them “into a peaceable relation to each other and so into understanding, community, and peaceable relations with one another, even with the most distant [in ein friedliches Verhältnis gegen einander, uns so, selbst mit Entfernteren, in Einverständnis, Gemeinschaft und friedliches Verhältnis unter einander gebracht werden].” The spirit of commerce (Handelsgeist), which is antipathetic to war, thus works through the self-interests of nation-states to unite the world into a peaceful whole. Hence, although humanity and the cosmopolitan federation are ideas of reason, they can find material support in existing forms of commercial intercourse that allow us to hope that the cosmopolitan federation can be approximated in order to serve as the institutional basis for the idea of humanity. In Marx’s writings, the delegitimation of the territorial state develops into a radical critique of the state as an instrument of the interests of the ruling class that will wither away with the cosmopolitan proletarian revolution. As it was for Kant, the basis of Marx’s critique of the territorial state is likewise a form of society that is global in its reach because Marx also

198

On Cosmopolitan Alternatives

distinguished human beings from animals because of their sociability. Hence, it is from society that the destruction of the state as that which fetters society’s true extensiveness must originate. The radicality of Marx’s cosmopolitanism lies in his materialist understanding of society. Sociability, he argues, is rooted in the fact that human beings are actual (wirklich) beings whose activity is material because it is directed toward the external material conditions of their lives, conditions they can modify and produce through their activity. Human reality is first the immediate facticity of the material environment in which human beings live insofar as they are finite, sensuous beings that have to interact with external nature in order to survive. Second, human reality can be transformed and remade according to the image of human ends through the mediation or negativity of labor. This remaking of the external world or production is also the process of human self-actualization in which human beings produce not only their material life but also their human nature. Now this process of active human self-actualization is necessarily cosmopolitan. Production is a social or cooperative activity because the production of others is required to satisfy one’s needs. As Marx puts it, “the production of life, both of one’s own in labour and of fresh life in procreation, now appears as a double relationship: on the one hand as a natural, on the other as a social relationship. By social, we understand the co-operation of several individuals, no matter under what conditions, in what manner and to what end. It follows from this that a determinate mode of production [eine bestimmte Produktionsweise], or industrial stage, is always combined with a determinate mode of co-operation [eine bestimmten Weise des Zusammenwirkens], or social stage, and this mode of co-operation is itself a ‘productive force’ [Produktivkraft]. Further, that the multitude of productive forces accessible to men conditions the social state of affairs [daß die Menge der den Menschen zugänglichen Produktivkräfte den gesellschaftlichen Zustand bedingt], hence, that the ‘history of humanity’ must always be studied and treated in relation to the history of industry and exchange.” Sociality is immanent to the production of human life. Accordingly, production is also a  socializing and potentially humanizing activity, the means for the selfactualization of the human being as social or human insofar as he can only attain his full human individuality in society as it is shaped by historical conditions of production. Alluding to Aristotle, Marx suggests that “the human being is in the most literal sense a ςϖου πολιτικον [zoon politikon, political animal], not merely a gregarious animal, but an animal which can individuate itself only in the midst of society. Production by an isolated

The Physico-Material Bases of Cosmopolitanism

199

individual outside society . . . is as much an absurdity as is the development of language without individuals living together and talking to each other.” Herein lies the cosmopolitan vocation of production. The maximum development of productive forces to fulfi ll the needs of every human being requires the integration of the entire world into the system of production. More important, such world integration will bring about the universal intercourse of all men, which should optimally lead to the remaking of the world according to universal human ends. Production should generate a borderless society since only such a society can have humanizing powers. Thus, commenting on civil society, Marx notes that it “embraces the whole material intercourse of individuals within a determinate stage of the development of productive forces. It embraces the whole commercial and industrial life of a given stage and, insofar, transcends the State and the nation.” Human reality and cosmopolitanism thus presuppose each other. It is tautologous to say that human reality is or should be cosmopolitan because human reality is necessarily social and social intercourse and society transcend the borders of nation and state. Hence, instead of rejecting Kant’s argument that world trade is the material basis of cosmopolitan society, Marx deepens Kant’s argument by embedding world trade in a more fundamental set of material processes: a global mode of production. A global mode of production gives rise to a material cosmopolitanism (a world society of associated producers) that is a direct component of the self-actualization of humanity. Spiritual cosmopolitan formations, such as world literature and world history, are merely the epiphenomena of the material world brought into being by industrial capital’s global mode of production. However, this material world created by industrial capital is only an alienated world, a world without actuality in which humanity cannot recognize itself because it has failed to actualize itself or, more precisely, has only actualized itself in an alienated shape. The world then appears not as a product of united social power but as a monstrous force that cannot be controlled because under the regime of commodified labor, the world is alienated in a subjectivating and objectivating sense. Producers are atomistic abstract individuals who compete with each other in the labor market, and the objects they produce are merely the private property of others. In Marx’s words, the productive forces appear as a world for themselves [eine eigne Welt], quite independent of and divorced from the individuals, alongside the individuals: the reason for this is that the individuals,

200

On Cosmopolitan Alternatives

whose forces [Kräfte] they are, exist split up and in opposition to one another, whilst on the other hand, these forces are only actual forces [wirkliche Kräfte] in the intercourse and association [Verkehr und Zusammenhang] of these individuals. Thus, on the one hand, we have a totality of productive forces, which have, as it were, taken on a material form [sachliche Gestalt] and are for the individuals no longer the forces of individuals but of private property. . . . On the other hand, standing over against these productive forces, we have the majority of individuals from whom these forces have been wrested away, and who, robbed thus of all actual life-content [wirklichen Lebensinhalt], have become abstract individuals. What is significant about Marx’s account of cosmopolitanism is his conceptualization of actuality as a dynamic process that is set in motion by social cooperation. In the above passage, he emphasizes that productive forces “are only actual forces in the intercourse and association of . . . individuals.” The socialist revolution is the reappropriation of productive forces in a process of human self-activity that is simultaneously world-destroying and world-creating. As he puts it in Capital, “Socialized man, the associated producers, govern the human metabolism with nature in a rational way, bringing it under their collective [gemeinschaftliche] control instead of being dominated by it as a blind power; accomplishing it with the least expenditure of energy and in conditions most worthy and adequate to their human nature.” Marx’s cosmopolitanism therefore inherits from its Kantian predecessor the motif of the cosmopolitan whole as a means of human self-actualization. But as a direct result of his materialist conception of human activity, cosmopolitan society is no longer a mere external support for actualizing humanity. It is an integral process that expresses and makes explicit the universal sociality internal to production whereby sociality, world, actuality, and humanity form a constellation of mutually defining terms. What is decisive in this conceptual nexus of proletarian cosmopolitanism, what braids its key terms together, is nothing other than the figure of sovereignty. Proletarian cosmopolitanism is not political in its essence. It exceeds the connections established through cosmopolitan institutions of right. Such institutions are merely the alienated shape of the true sociality of production and a cosmopolitan association of producers will arise from their sublation. At the same time, insofar as the society of human producers will govern the world created after the revolution, socialized humanity is nothing other than an absolute sovereign who has become deterritorialized. It is the world sovereign

The Physico-Material Bases of Cosmopolitanism

201

who governs world political economy. Real cosmopolitanism is the process of universal humanity as a sovereign subject actualizing itself in the world.

Global Governmentality: Syntheses of the Population, Syntheses of Humanity Proponents of the new cosmopolitanism do not add much to the conceptualization of cosmopolitan reality. While they modify the arguments of Kant’s and Marx’s philosophical cosmopolitanisms by qualifying their universalistic thrust, they subscribe to the same principle of cosmopolitan reality as the world-making and self-making of the universal human sovereign. This philosopheme of reality as sovereign self-actualization always irrigates any discourse about real cosmopolitanism. Marx’s cosmopolitanism merely articulates the most powerful sense of reality where the only real world is a world that has been materially remade according to universal human ends. The urgent question that confronts us today is not whether cosmopolitanism is real or ideal but whether this philosopheme of reality still remains plausible in contemporary globalization. Marxist theory explains the vicissitudes of the existing capitalist world economy in terms of alienation, as the consequences of a deviation or fall from the active sense of reality as the ongoing process of human selfactualization in the world. Varieties of new cosmopolitanism, such as theories of global democracy (Habermas), world governance, or cosmopolitan sensibility, have a less robust sense of world-making and no longer point to the sublation of global capitalism. But they still believe that a cosmopolitan association based on humanity’s powers can regulate the forces of globalization. Skepticism about this human power to regulate the global whole is generally attributed to deficiencies of intellectual insight, vision, perception, or imagination. However, what the philosopheme of reality as the selfactualization of sovereign humanity never addresses is the issue of how these human powers of world-making—the ground of real cosmopolitanism—are constituted. How do we become human and come to be endowed with all the fundamental human capacities, such as labor and sociability, from which we develop the traits we recognize as the markers of our humanity, such as dignity and freedom, qualities that cosmopolitanism is supposed to affirm and protect? To raise these questions is to respond to the provocation of Michel Foucault’s account of biopolitics, which does not take for granted any of the

202

On Cosmopolitan Alternatives

material and rational capabilities and needs and interests of human subjects but instead views them as being shaped by political technologies and mechanisms that respond to and regulate the nature of human beings as living beings. As Nikolas Rose aptly puts it in his interpretation of Foucault, “Humans are essentially machinated. And so is the capacity for freedom. Freedom does not arise in the absence of power: it is the mobile historical possibility arising from the lines of force within which the human being is assembled, and the relations into which humans are enfolded.” We would then need to locate the material basis of cosmopolitanism at an even more fundamental level than a globalized mode of production, namely, in the global biopolitical making of concrete human beings with all their capacities and needs who constitute the most fundamental of resources in the global competition between states. As I will suggest, real cosmopolitanism, when considered in terms of its biopolitical basis, does not necessarily lead to a cosmopolitanization of consciousness but can intersect in troubling ways with territorialized forms of politics. As is well known, Foucault’s analysis of disciplinary power problematized Marx’s conceptualization of labor as the concrete essence of the human being. The capacity for labor, Foucault argued, was synthetically produced by micropolitical technologies that he called infrastructural power (infrapower, or sous-pouvoir). Labor is absolutely not man’s concrete essence or man’s existence in its concrete form. In order for men to be brought into labor, tied to labor, an operation is necessary, or a complex series of operations, by which men are effectively—not analytically but synthetically— bound to the production apparatus for which they labor. It takes this operation, or this synthesis effected by a political power, for man’s essence to appear as labor. . . . [I]n order for there to be hyperprofit, there had to be an infrapower [sous-pouvoir]. A web of microscopic, capillary political power had to be established at the level of man’s very existence, attaching men to the production apparatus, while making them into agents of production, into workers. This binding of man to labor was synthetic, political; it was a linkage brought about by power. . . . I’m referring not to a state apparatus, or to the class in power, but to the whole set of little powers, of little institutions situated at the lowest level. What I meant to do was analyze this infrapower as a condition of possibility of hyperprofit.

The Physico-Material Bases of Cosmopolitanism

203

We can make a similar argument about the sociality of production, which Marx notes, “makes its appearance with the increase of population. In its turn this presupposes the intercourse [Verkehr] of individuals with one another. The form of this intercourse is again conditioned [bedingt] by production.” For Marx, the population is not a natural entity but something shaped by socioeconomic factors for the end of extracting surplus value. It is “a rich totality of many determinations and relations,” primarily those of social class, which in turn break down into other categories, such as labor, capital, and exchange. Because bourgeois political economy views the population only as the material support for commodity production, it obscures the population’s socializing dimension qua population of workers. As the young Marx puts it, “The worker has the misfortune to be living capital, and hence, capital with needs, which forfeits its interest and hence its existence every moment it is not working. . . . The human properties of man as a worker—man who is nothing more than a worker—exist only in so far as they exist for a capital which is alien to him. . . . Therefore as far as political economy is concerned, the requirements of the worker can be narrowed down to one: the need to support him while he is working and prevent the race of workers [Arbeitergeschlecht] from dying out.” Proletarian cosmopolitanism seeks to overcome the worker’s alienation and to reaffirm the humanizing sociality of work on a world scale. In contradistinction, Foucault suggests in his provocative interpretation that one finds in the discourse of political economy a thematization of complex political technologies that are not repressive but instead treat the population as a collective biological being that needs to be governed, managed, and augmented because it is a fundamental resource of the state. Such technologies are the material conditions of the exploitative relation between capital and labor power because they generate the capacities of the population from which surplus value can be extracted. However, they do not themselves extract or diminish the powers of the population. To the contrary, their aim is to produce and augment human life as a resource, including the power of labor as a productive force. The population, which Foucault defines as “a multiplicity of individuals who are and fundamentally and essentially only exist biologically bound to the materiality within which they live,” is not a juridical subject of right. But it is also not the self-actualizing human subject of living labor that has been alienated in the capitalist mode of production. For while the population is a multiplicity of living beings, what Foucault emphasizes is the biological or natural character of life, which needs to be rigorously distinguished from the teleological understanding of

204

On Cosmopolitan Alternatives

life that Marx inherited from German idealism. According to Foucault, the population must be managed and governed, not by the external imposition of laws, regulations, or even norms by a sovereign, but by respecting and working within what is natural in the population qua a set of processes that includes the natural milieu of its existence. The natural dimension of the population must be respected precisely because the population is a living force that must be enhanced and optimized even as this living force is by its very nature not completely amenable to rational calculation because it is endlessly alterable by virtue of being subject to variations and accidents. Governmental technologies therefore create the population as a surface where the optimization of human capacities and the regulation of individual interests and needs take place. These technologies intersect with disciplinary technologies that optimize the capacity for labor of individual bodies. This surface is thus the material basis of the human subject of labor living. Hence, Foucault claims that “man, as he is thought and defined by the so-called human sciences of the nineteenth century, and as he is reflected in nineteenth century humanism, is nothing other than a figure of population.” What then of the socializing and cosmopolitanizing dimension of human activity that Marx, following the Scottish Enlightenment, called “civil society” and viewed as the true source of the power of the territorial state whose borders it transcends? Where Marx began from the premise that civil society is a sphere of autonomy vis-à-vis the state, Foucault suggests that the historical development of governmentality leads liberal political economy to conceptualize the population as a collection of economic subjects who must be left alone to freely pursue their own individual interests because the art of governing that respects the natural integrity of the relations between men in collective life is the most effective way of government. Hence, far from being opposed to government, “civil society is what governmental thought, the new form of governmentality born in the eighteenth century, reveals as the necessary correlate of the state. . . . The state has responsibility for a society, a civil society, and the state must see to the management of this civil society.” Civil society is a technology of government, a new reality that emerges so that governmentality can legitimately maintain its hold over an existing territorialized space of sovereignty inhabited by a population of economic subjects who must be governed minimally, that is, in a way that respects the nature of economic processes. Civil society is an object that puts the population of economic subjects in relation to juridical subjects of right. The liberal regime of governmentality is the paradigmatic form of biopolitics and the key to its analysis. Because it respects the natural character of the popula-

The Physico-Material Bases of Cosmopolitanism

205

tion as a living species and makes the freedom or independence of the governed an indispensable component of good or effective government, liberal governmentality is the most effective way of increasing the forces of the state. Three features of Foucault’s account of governmentality are important for present purposes. First, the concrete capacities, powers, needs, and interests of human individuals are optimized and even fabricated at the most physical or material level by biopolitical technologies in their deployment to manage a population of living beings as forces of a state. Second, the importance attributed to the freedom of members of a population and the elaborate codification of these capacities, needs, and interests in the juridical form of civil rights is part of a regime of governmentality. Governmental technologies are thus the basis of civil society, the general object to which rights and liberties are attached. Third, governmentality is not an all-encompassing totalitarian web of coercive power over life. Precisely because biopower has as its target a set of living beings whose forces it seeks to enhance, its calculations are unable to saturate its object by virtue of the radical incalculability or unpredictability of life. Accordingly, governmentality erodes sovereign power. Whereas sovereignty implies absolute control over the whole, governmentality is premised on a structural blindness or stupidity, a radical acknowledgment that there is something about the processes of living nature that governmental reason cannot and must not control and must therefore leave to take its own course. Any whole composed of biological or living beings, as exemplified by homo oecononomicus, is not totalizable. Such a whole is instead an “indefinite field of immanence.” We should understand real cosmopolitanism today in terms of global governmentality instead of the self-actualization of humanity. We generally regard globalization as Marx did in terms of the global spread of modern forms of economic production and the financial, population, and cultural flows that accompany them. What has been less commented on is the global dissemination of governmental technologies for the management of populations that serve as the basis for contemporary economic globalization. The discourse of human development that gradually gained ascendancy in the late 1970s emphasizes the importance of improving the well-being of populations to any program for global economic growth. What is especially significant about the discourse of human development is that it seeks to resolve the apparent tension between economic growth and the ideals of fairness, justice, and equity by suggesting that the cultivation of human capacities facilitates and is coextensive with sustainable economic development. In the words of the International Development Strategy for the Th ird United

206

On Cosmopolitan Alternatives

Nations Development Decade, “The development process must promote human dignity. The ultimate aim of development is the constant improvement of the well-being of the entire population on the basis of its full participation in the process of development and a fair distribution of the benefits therefrom.” The globalization of governmentality had begun earlier. It is a gradual process that includes the establishment of socialist countries, post–World War II decolonization, the fall of the Eastern bloc, and the ascendancy of neoliberalism in the post–cold war period. Whether they adopted socialist or liberal constitutions, newly created states formulated constitutional protections of citizens’ rights that were not restricted to individual civil and political liberties but also included social and economic rights, such as the right to food and the right to work. Although they are often justified through natural-law theory as deriving from original rights, civil liberties and other rights of citizenship can be regarded as part of the regime of governmentality, that is, as the codification of the capacities for various forms of freedom and other powers and needs that governmentality creates in members of populations in a juridical form. What is decisive here is the link between economic growth and the concerted cultivation of the population as a valuable resource. This link receives its fullest articulation in the contemporary discourse of human development propagated by countries in the economic South at the directive of international agencies. Where governmentality at the level of the territorial state produces civil society, global governmentality produces humanity as its object. There are at least two components to this process: first, some of the capacities and powers formalized through constitutional guarantees are recognized as the powers of a humanity that exceeds state borders. These powers are codified as “human rights” in international human-rights instruments administered by the United Nations and other related international bodies, such as the International Labor Orga nization. Second, although states are supported by governmental technologies, these technologies are detachable from them and can also be deployed by nonstate actors. Transnational nongovernmental organizations (NGOs), which are often viewed as constituting a so-called cosmopolitan civil society, deploy governmental technologies when they seek redress for groups whose human rights have been violated or when they engage in humanitarian activities. These NGOs therefore participate in the global governmental production of humanity. The absence of a world state means that the ultimate effectiveness of the two arms of global governmentality requires the acquiescence and participation of states. This consensual participation is brokered through state calculations of self-interest, in terms

The Physico-Material Bases of Cosmopolitanism

207

of whether adopting a human-rights regime will serve the ends of increasing the state’s forces in the long run, for instance, to facilitate foreign trade or to attract transnational capital. The play of the self-interest of states is best seen in cases where having a good human-rights record is a condition for a country’s entry into the World Trade Organization. In other words, transnational human-rights regimes can be integrated into the internal biopolitical management of a state’s population for the end of economic development. A biopolitical analysis seems to me to lead to a more accurate understanding of the nexus between liberal governmentality, transnational capital flows, and the opening up of new markets outside the economic North than a Marxist theory of neoliberal capitalist imperialism. If we approach real cosmopolitanism through an analytics of global governmentality, then it cannot be regarded in an unproblematic way as a process for the self-actualization of humanity. To return to Beck’s allusion to Freud that I quoted at the start of this paper, the indefi nite immanent field of global governmentality is not an unconscious that can be penetrated and revealed by rational consciousness so that it can be rationally regulated by humanity because this field is not in the final analysis something that rational insight can regulate. Or better yet, the inhabitants of this field are living beings whose optimal regulation requires that we leave them be to pursue their natural course. But optimal regulation also means that we should try to encourage and facilitate this natural pursuit by enhancing their powers for doing so. The indefinite field of immanence of global governmentality is not reducible to a mere function of global capitalism, nor is the humanity that it produces a mere ideological fiction. But at the same time, the governmental production of humanity can also have coercive consequences, especially when the discourse of human rights intersects with the economic development policies of states in the global South. Since human-rights regimes are often regarded as an example of real cosmopolitanism that weakens territorial state sovereignty, I want to illustrate how this kind of real cosmopolitanism can be deployed in the biopolitical strategies of states and secure their authority by analyzing how the International Covenant on Economic, Social, and Cultural Rights (1966) (ICESCR) and the Declaration on the Right to Development (1986) (DRD) can ironically make acceptable the deployment of various modalities of feminized labor by states in the postcolonial South (women factory workers in free-trade zones, foreign domestic workers, sex-workers both within developing countries and transnationally) in ways that make these female subjects structurally vulnerable to human-rights violations. As is well known,

208

On Cosmopolitan Alternatives

these two instruments prescribe positive duties to states to recognize a large number of concrete second- and third-generation rights. They are the best example of the production of humanity by global governmentality because they are informed by three axioms: first, the human being with all its capabilities (and all the fundamental elements of her makeup as a physical being, such as physical needs and the enjoyment of social goods) is a subject worthy of investment; second, there is a reciprocal relationship between the concrete well-being of the individual and that of the community; and third, the state plays an important role in fostering both kinds of well-being. Article 1 of ICESCR states that the right to the free pursuit of economic, social, and cultural development of a people flows directly from the right of self-determination. This free pursuit of development includes the ability of a people to “freely dispose of their natural wealth and resources.” Article 2 substitutes “state” for “people” as the holder or owner of “resources” and elaborates on the state’s positive duty to fully realize the rights recognized by the Covenant. This duty to fully realize the human rights in question is limited by the resources available to the state. Article 2(3) stipulates that developing countries can determine the extent to which they will guarantee economic rights to non-nationals by giving “due regard to human rights and their national economy” (emphasis added). Hence, it is logically implied that the state ought to maximize its resources so it is better able to meet this positive duty or at least to loosen the limitations placed on it by its degree of economic development. The reference to the free disposal of “natural wealth and resources” in Article 1 suggests that unlike natural resources, human beings are not resources that can be freely disposed of. However, they are certainly resources that deserve to be enhanced, maximized, and developed. Hence, the “full realization” of the capacities of human beings, in the form of rights, explicitly involves a positive duty to augment these capacities through training and formal education. Article 13(1) recognizes the universal right to formal education, the end of which is the cultivation of the individual’s capacities. The framing of the articles by the preamble’s recognition that the individual has duties “to the community to which he belongs” and the derivation of the economic, social, and cultural rights of all individuals from the right of self-determination of all peoples (Article 1[1]) emphasizes the reciprocal relation between the development of each member and the development of the community. The idea of development in the ICESCR is continuous with the understanding of the individual as a member of the population qua resource of the state. This view of the human being as a resource is expressed

The Physico-Material Bases of Cosmopolitanism

209

even more clearly in the DRD in terms of the positive duties of states to implement development policies aimed at the maximization of the well-being of their populations and its individual members since the development of these capacities are a crucial component of the realization of the right to development of individuals and nations. Unfortunately, this view of the human being as a resource is continuous with the concept of human capital articulated in the neoliberal economics of the Chicago School. To be sure, the elaboration of the right to development is framed by the guiding vision of humanity as the ultimate end of development. Hence, the preamble “recogniz[es] that the human person is the central subject of the development process and that development policy should therefore make the human being the main participant and beneficiary of development” and “that the creation of conditions favourable to the development of peoples and individuals is the primary responsibility of their States.” However, the position that the best kind of development is not merely economic development (development solely in terms of criteria of economic growth) but human development (development of, in the ser vice of, and for the sake of humanity) is already anticipated by the Chicago School definition of the worker as an entrepreneur or capitalist who can capitalize on his own abilities by investing in his own education. The concept of human capital is based on the idea that the best form of economic development is precisely human development. Within this framework, the duty of states to “undertake at the national level, all necessary measures for the realization of the right to development” (DRD, Article 8[1]) can legitimize state policies of labor exportation as a de facto transnational subcontracting of the governmental cultivation of human resources. The active encouragement of labor migration by countries in the economic South is invariably justified in terms of realizing the right to work and the right to education: providing fruitful employment where none is to be had in a home country or positions where higher wages can be earned, and the enhancement of the skills and capabilities of the migrant worker by on-the-job training in these overseas positions or other vocational training. It is suggested that in the long run, labor migration optimizes the means for realizing the labor-exporting state’s right to development and improves the well-being of the population and its individual members because it increases the labor-exporting country’s resources through the encouragement of savings and foreign-exchange remittances and their conversion into fi xed capital and through the enhancement of the worker’s abilities and her future prospects of work on repatriation. However, as NGOs that focus on the consequences of labor migration have noted, labor-exporting states can also be

210

On Cosmopolitan Alternatives

seen as violating the human rights of their citizens. Aggressive policies to export labor create conditions that increase the vulnerability of migrant workers to human-rights violations in their host countries. Hence, the stipulation in the DRD that “effective measures should be undertaken to ensure that women have an active role in the development process” (Article 8[3]) has viciously ironic consequences for countries for which women citizens form a significant component of exported labor. What we have here is an aporetic scenario where instruments for the protection and realization of transnational human rights can have aporetic effects in their constitutive intermeshing with the biopolitical strategies of territorial states. For if the human being’s capacities to produce for use and even his or her capacity for freedom are synthetically generated by governmental technologies, then the producing of people as resources who can be deployed by their states to be used by transnational capital in the name of human development is always a possible outcome of this immanent field of the production of humanity. Human development is generally regarded as a humanization of merely economic development. But for that very reason, the humanity that is produced can also be deployed by states in their strategies for increasing their resources, thereby aporetically infecting the human face of development. This contamination and compromise is structural to the discourse of human development as a mode of global governmentality and the humanity it produces. Governmentality is precisely what makes people useful but in a way that makes them infinitely usable (and used). Economic and social rights and the right to development merely codify the production of useful humanity in the form of rights. With the globalization of governmentality, what we have is a global system of, not only as Marx saw it, people creating products as a means of using others, but one of creating human beings for use. But this immanent field is also the site in which we are concretely endowed with whatever concrete capacities and, therefore, needs and rights we have that subsequently become enforceable within a juridical discourse. Here, a methodological cosmopolitanism is not about imagining solidarities beyond the nation-state but about tracking a global milieu of interconnectedness at the most physical level, a global material a priori, if you will, in which humanity is produced as useful before we can say that this or that specific use of human beings is a violation of their universal human rights.

Chapter 11

Citizens of the Earth Indigenous Cosmopolitanism and the Governance of the Prior ELIZABETH A. POVINELLI

W

hat is it to be a citizen of the earth? What social imaginaries animate cosmopolitan citizenship—the desire to situate political belonging in a global context, from the perspective of the earth, a restricted cosmos to be sure, but one that could be expanded infinitely as new earths were found in far galaxies—such that it might provide a way of being from a place whether a resident or not? This openness of attachment is, of course, also an injunction. Even a political form of inclusion that welcomes all without regard to their state papers has its own forms of exclusion, its own constitutive forms of territorial (en)title(ment), its own nomos. After all, the earth does not exist in a universe without cosmological construction. The earth is an artifact of a certain dominating cosmogenesis. Not everyone has, or had, earth as a specific kind of reference—a specific cartological imaginary—in which a round orb has been appropriated from the point of view of space. As Evelyn Edson argued in relation to medieval mapmakers, “real space” is not an achievement of a geographically precise truth carved out of previous, clumsy, and approximate mapping techniques and cultures. Rather, real space is one of a series of territorializations of space, what David Harvey sees as a social formation enabled and mediated through capitalism’s territorial productions. And so it is with liberal democratic citizenship. It might appear from one perspective to free a person’s political and social destiny from her social identity and relations. But from another perspective, it demands that all

212

On Cosmopolitan Alternatives

social identities and relations be suspected of constraining an original free and unencumbered human being. In different words, the fantasy of a free, socially unencumbered person is encountered as a mode of domination for those for whom the disembedded self is a violation rather than a liberation of being. Specific colonial techniques were developed to disembed colonial subjects or, more precisely, to reembed them in a colonial order. The hut tax, the boarding school, linguistic restrictions, and marriage laws were all means of disembedding subjects from one life world and reembedding them in another—all of which is to repeat a commonsense. Cosmopolitan citizenship has its nomos, its social histories, it genealogies. Thus, the question of what it is to be a citizen of the earth, to be part of the cosmopolity, is not merely a question of whether one can or should scale political association at the level of the local, the nation-state, or the earth or whether it is possible to develop an alternative cosmopolitanism. It is what one is already presupposing in the concepts of the citizen and the earth before one decides whether this citizenship should have a national border or not. How might an alternative cosmopolitanism be constructed, when the earth and citizenship have already been absorbed into, and express, a specific formation of power that I will describe below as the “governance of the prior”? In the wake of an enormous literature on cosmopolitanism, cosmopolitics, and a host of counter-cosmopolitanisms, what might critical indigenous theory contribute to the problem of cosmopolitanism? This problem of the nomos of the earth is of particular concern to indigenous critical theory, where the coordination of citizen and earth reaches a certain crisis. What might it mean, what sense does it make, to lay a claim to an indigenous cosmopolitanism, when, as Tim Ingold argues in his relational model, “cultural knowledge and bodily substance are seen to undergo continuous generation in the context of an ongoing engagement with the land and with the beings—human and non-human—that dwell therein”?  Australian philosopher Helen Verran has called this way of being and knowing “embodied in-place.” For some of my indigenous colleagues in Australia, for instance, a person cannot be separated from an entire host of relations with place, including material transfers (foods taken into the body; pissing, shitting, sweating in a place) and semiotic transfers (speaking to place and reading the semiotic interplay of place). And it includes forms of embodiment over time that non-indigenous strangers may think is a cultural way of referring to memory. While cognitive approaches might view memory as being a psychological state of storing, retaining, and recalling information, embodied places are not memories for my colleagues. Places absorb the

Citizens of the Earth

213

spirit of specific people, nyuidj, who then appear to living people. Over time, the specificity of the person is slowly lost and absorbed into a more general kinship or linguistic category. How would Kant’s distinction, fundamental to his cosmopolitan polity, between the freedom of travel and the right to settlement make sense in this geontology? Whatever Kant might make of these life-worlds, the portrait of indigeneity as spiritually rooted in specific territories through kin-based obligations and ritual actions hardly seems to lend itself to the classical forms of cosmopolitanism in which globally oriented citizens break the ties of kin and state and open themselves to the foreigner. Are indigeneity and cosmpolitanism two different ways of being a citizen of the earth? Are they two different territorializations of the earth? Is there something about the analytical task critical indigenous theory sets that provides a new spacing within cosmopolitanism? It is not surprising, given that being cannot be separated from place, that critical indigenous theory has placed at the center of its considerations the mode of sovereignty presupposed by the nation-state and subsequently the cosmopolitan alternative. If, as Patchen Markell has argued, liberal sovereignty presupposes a self that is able to disembed itself from the “web of interlocutions” and the nonsovereign nature of human agency, could there be an indigenous sovereignty? What would a sovereignty that foregrounded not merely a different ontology of dwelling but a different geontology look like? This alternative geontology would base the circulation of knowledge on thickly embedded social relations that are constantly negotiated within and across the social categories that compose them and their territorial substrate and expression. In this world no one is fi xed in any singular identity and humans are and can become nonhuman agents because the persons are not abstracted but rather constantly expressing their geosocial skin? Dale Turner has argued that those forms of belonging have made the role of “word warriors” simultaneously more vital and more fraught to the project of an alternative indigenous mode of sovereignty. Indigenous intellectuals who seek to constitute a vigorous, practical alternative to the concept of sovereignty must understand indigenous philosophy and worldviews, ideally as they are articulated in indigenous languages; understand Western European philosophy in its own terms; and engage these Western European philosophies from the vantage of indigenous philosophies in such a way that the engagement constitutes a real political activity. That such a “red pedagogy” will often as not remain an aspirational horizon does not diminish its actualworld effects.

214

On Cosmopolitan Alternatives

In this essay, I outline a few issues that emerge when we bring critical indigenous theory into the vicinity of national sovereignty and cosmopolitanism. In particular, I will describe a form of governance that subtends indigeneity as both a social and a conceptual terrain. I argue that settler-state sovereignty is animated by what I have been calling the governance of the prior—the containment of the priority of the prior across political, market, and social relations in the settler state. In particular, I want to examine two aspects of the governance of the prior in the contemporary settler state, its territorial and temporal apprehension of the earth and citizenship. And I hope to show how key spatial and temporal imaginaries of the governance of the prior are conserved in the nation-state’s overthrow in liberal cosmopolitan imaginaries. In other words, the governance of the prior provides an essential formation of tense and event—a chronotrope—to the governance of difference in late liberalism. When I speak of the governance of prior, I am specifically interested in the political theoretical abstractions on which assessments about the time and place of indigenous people on the earth are made. There is not enough space here to discuss at length the conditions that gave rise to the governance of the prior in the modern settler nation-state, the nation-state system more generally, or the indigenous as a specific and general formation within the history of colonial settlement. Th is much I can say, if all too briefly. The conditions of the governance of the prior were in place before the emergence of the modern liberal nation-state. And this statement is true whether we believe that the modern nation-state emerged in the eighteenth-century Americas, as does Benedict Anderson, or only after World War II, as do John Kelly and Martha Kaplan. What matters is how nationalisms emerged. And what Anderson emphasizes is that “one of the justifications, sooner or later” for the new nationalism was their creole nature: “their distinctive history, and especially their demographic blending of settler and indigenous peoples, to say nothing of local traditions, geographies, climates, and so forth.” This manner of strategically claiming a priority of inhabitation on a continent against a foreign colonial homeland became the modular form of the modern national imaginary. Projecting themselves against the metropolitan state, Americans could claim and experience themselves as the prior occupant of the Americas. But in acceding to the logic of the priority of the prior as the legitimate foundation of governance, the settler state projected the previous inhabitants as spatially, socially, and temporally before it in the double sense of before—before it in a temporal sequence and before it as a fact to be faced. Susan Scheckel examined

Citizens of the Earth

215

this dynamic in the American literary nationalisms of the early nineteenth century. Anxious that the Revolutionary War would lead not to a new and lasting peace but to an endless series of subsequent revolutions, “many literary nationalists of the early nineteenth century suggested that the history and myths of American Indians could provide the new nation with a sense of ‘primitive’ origins.” But while solving one problem, literary creolization created another, namely, the governance of the prior as a temporal sequence and event: “Who had the right to own and govern the land originally possessed by Indians and inherited through the Revolution?” Thus, I am not so much interested in the difference between national and cosmopolitan versions of the citizen nor, initially, in the difference between liberal cosmopolitanisms and alternative (indigenous) cosmopolitanisms. Prior to these problems is another—another problem particularly visible in the light of the settler state. This essay can thus be understood as preamble to the development of the groundwork of an (im)possible indigenous cosmopolitanism.

Those Who Are First and Those Who Are Prior To see what is at stake here let me begin with a set of essays, written by the political theorist Jeremy Waldron, addressing the question of how the duty of the nation-state to do justice to all of its citizens within its territorial jurisdiction (not all its citizens in other territorial jurisdictions and not all people within its territorial jurisdiction?) is compromised by the special duty to indigenous people. At its core, Waldron’s argument is a performative perspective on the settler constitutional state and its duty to its indigenous subjects. Waldron concedes that the settler state was constituted in a violent act, the constitutional creation of the jurisdiction of the law of sovereignty. This form of “taking” was saturated with injustice in terms of the racist imaginaries that subtended it, the horrific violence that enabled it, and the moral stain that accompanied it. These injustices are particularly pertinent to the legitimacy of liberal democratic sovereignties because for liberalism, unreasonable, forcible taking is a deep normative violation. As Richard Rorty argued, there is nothing more painful for a liberal than causing unwarranted pain to another. Put a different way, there can be a warrant to cause others to suffer an injustice and to cause the warrant against the injustice to expire. The question is what is this warrant or its expiration clause.

216

On Cosmopolitan Alternatives

Though deeply influenced by Rawls, Waldron’s argument has an uncanny resonance with Walter Benjamin’s famous distinction between the law-making and law-preserving function of violence. Law-making violence creates a set of new conditions and mutandis mutandi, a new law. Thus lawmaking violence is constitutional in the sense that it resets the grounds and languages of legitimate violence even as it immediately transforms into a law-preserving tool. Law-making violence may be, perhaps always is in retrospect, an instance of a “historical injustice.” Waldron certainly admits that settler constitutions were such a kind of violence for indigenous populations. But this historical injustice is a kind of event whose tense is written in the grammatical past and whose force is performative. It happened. And this grammatical past creates another, a past perfect in which this past is looked at from a constitutional past. The existence of a constitution demonstrates that the injustice happened before or perhaps at the instance of the ratification of the constitution. As a consequence, the special rights carved out to the indigenous from the general constitutional goods and hospitality the state is obliged to give all its citizens must be situated within the past perfect of these harms. What special duty the state owes indigenous people must be asked in this way: “Given what we know were historical injustices that happened back then, what special duties does the nation-state owe indigenous people?” Within this temporal framework, Waldron must answer whether the denial of the state’s special duty to indigenous people is warranted. To answer this question, he argues that one must first distinguish between two kinds of occupancies: first occupancy and prior occupancy. Both kinds of occupancies fail Rawlsian principles of justice. But how they both fail sheds light on the migration of a state territorial and temporal imaginary into cosmopolitan dreams. Waldron argues that indigenous claims made on the basis of first occupancy face the problem of evidentiary proof. First occupancy is nearly, if not by definition, impossible to prove because its truth conditions stretch into the prerecorded past. In this past lies the Kennewick Man, a prehistorical remainder whose patrimony cannot be settled. Or it can only be settled if the competing parties agree on the epistemological, ontological, and evidentiary principles relevant to remainders in the earth—or, more fundamentally, agree that the earth is, as it is understood in the natural sciences, to be a thing in which people can “occupy” (to make use of, to take up tenancy in), and remainders can be extracted without a subsequent geontological transformation. Lacking this agreement, the propositional force of proof itself begins to crumble. And yet proof is indeed what

Citizens of the Earth

217

Waldron says that indigenous claims must have. And because arguments about first occupancy cannot manufacture this kind of proof, they fail to fall within the parameters of Rawlsian justice. Prior occupancy, he says, does not suffer the same necessary evidentiary failure. But claims based on prior occupancy face another hurdle. Prior occupancy is simply one of many kinds of historical injustices brought before the court of law. And it is here that we see the stakes of the temporal imaginary of Waldron’s understanding of “historical injustice.” What appears to be a concession, an acknowledgment of settler harm, reappears as a foundation for exculpating the state from this harm. Even if indigenous people could prove prior occupancy, a less onerous form of proof than first occupancy, it would still need to be weighed in relationship to a contemporary field populated by multiple forms of harm and injustice. Indigenous claims based on prior occupancy might gain moral force from “the human interest in stability, security, certainty, and peace, and for the sake of those values it prohibits overturning existing arrangements irrespective of how they were arrived at.” But they suffer from an ever-decreasing moral weight as the event of dispossession recedes into historical time. The longer a morally unjust settlement goes on, the less important is the injustice of the settlement— the more the warrant wears thin. Perhaps it should be noted, Waldron is not merely thinking of indigenous claims in the United States, Australia, Canada, and New Zealand, but about Palestinians and Israeli settlements in the West Bank. Are Palestinians indigenous? And as indigenous people, do they have a weightier moral claim on the territories of Israel and Palestine than Jewish settlers? Waldron aligns this temporality of territorial and social justice with a reading of the legal doctrine of treaties, rebus sic stantibus (“while things stand thus”). Rebus sic stantibus is a legal doctrine that allows treaties to be annulled when the circumstances to which they referred have changed significantly. In other words, treaties can suffer the same kind of legal-moral erosion as the contextual event of their signing recedes into historical time. Waldron does not skirt controversy to make this point. His presentation of “The After-Life of Treaties” at the Otago Law School in New Zealand centered on the Treaty of Waitangi signed in 1840. Waldron begins by noting it might be uncomfortable to question whether the Treaty of Waitangi currently meets the standard of rebus sic stantibus, given the importance it has in the national political imaginary of biculturalism. Nevertheless, he claims, if the treaty is examined from a strictly legal point of view, then the treaty has been undermined by the erosion of its context, and subsequently all

218

On Cosmopolitan Alternatives

programs for social justice based on it fail. On the one hand, Waldron argues, in the act of signing the Treaty of Waitangi, the chiefs compromised their claims about state sovereignty—that they constituted one state in relation to all other states. Rather than an international issue, the Maori became an intranational issue. The Maori were no longer a state in relation to other states but a people in relation to the British state. But even leaving this issue of state jurisdiction and address aside, on the other hand, Waldron claims there is a deeper problem with the continuing legal standing of the Treaty of Waitangi. Remember that to violate the standard of rebus sic stantibus, fundamental “material changes” must occur. And surely, Waldron argues, fundamental material and social changes have occurred within the Maori life-world. It is self-evident, he claims, that the social obligations of tribes for such things as health and welfare embedded in treaty concepts of iwi and hapu have been absent for two or more generations. These changes are due, according to Waldron, to the urbanization of the Maori and their intermarriage with pakeha (European New Zealanders) but also to a shift in the “political mentality” of most Maori, who now believe that health and welfare are state duties. Rather than seeing Waitangi as a treaty removed from time, Waldron urges his New Zealand audience to join the United States, where native treaties are on par with federal statutes, a status that allows Congress to abrogate the treaties as social histories change. We might ask, what of state constitutions themselves? Don’t they suffer the same moral erosion over time, constantly threatening the state with its own internal decay? As Waldron notes, “If the Treaty of Waitangi is to be treated as a constitutional charter . . . then we ought to acknowledge that there too there is a need to distinguish between features of our constitutional heritage which are up to date and those which have been superseded by circumstances.” Why does the U.S. Constitution not suffer a similar retardation given the vast changes in territory and history it has witnessed? On the one hand, Waldron dismisses the longevity of the U.S. Constitution as an exception since “most constitutions don’t last anything like that long.” On the other hand, he acknowledges that no treaty or constitution can be endlessly revisable because the endlessness of present interpretations “can become an obstacle for updated relationships rather than a facilitator of that evolution.” We see three things from Waldron relevant to the governance of the prior. First, constitutional and state justice leans on a temporal division projected into social space. It presupposes and entails two times—the time before and the time after the constitutional state. Waldron’s argument depends

Citizens of the Earth

219

on us understanding “historical injustice” as an event that happened in the past and can thus become historical. And it depends on us somehow averting our eyes to endless new dispossessions, such as the annulment of the Treaty of Waitangi because of its failure to meet the legal standard of rebus sic stantibus. Rather than an event that happened, such scholars as Patrick Wolfe, Glen Coulthard, Audra Simpson, and J. Kehaulani Kauanui have shown how indigenous dispossession is an ongoing process. Indigenous dispossession did not happen. It continued to happen—and is still happening. Second, a second-order temporal division organizes this first order. This second-order division locks the indigenous prior—all nonliberal cultural orders—in the past perfect in which change can never occur without the suspicion of a violation of true cultural being, while it casts the settler state into the future horizon, where all change demonstrates it progressive truth. Third, in a brilliant critique of Waldron, Robert Nichols notes that in order to divide indigenous claims into the categories of first and prior occupancy, Waldron must assume that contract theory, the principles of personhood it presupposes, and the ontological categories of being it projects are also indigenous categories—that is, universal, general epistemological and ontological categories. The disembedded national subject is situated in an earth whose fundamental cartological perspective is from the view from nowhere— with this view from nowhere interpreted as an objective rather than subjective framework.

Citizens of Nationalized Earths Not only does a temporal division, constituted by the law-making violence of the constitution, qualify justice; it absorbs an entire range of social life-worlds into this division. In the latter is the division between the traditional and modern, the backward past-perfect civilizations, those whose authenticity can and should be judged on the basis of what they were before the act of violent law-making and the forward future progressive civilizations, those whose truth and task is to disembed themselves from the past—to adjust and adapt. I have elsewhere described this division as the division of the genealogical society and the autological subject. As Benedict Anderson argues, nationalism reorganized the territorial imaginary from a hierarchical, radial scheme to a homogeneous space-time defined not by its center but by its borders. Everyone defined as within its borders (the citizen of those borders) is defined against those outside its borders (the

220

On Cosmopolitan Alternatives

foreign). But within the borders, no one should be defined—or, more accurately, have their life possibilities defined—by any aspect of their social being. In the matters of the polity and economy, of intimacy and destiny, the citizen should be a stranger to her social skin. The earth is not an effect of our social relations. Nor are our social relations an effect of our being-inthis-somewhere, except for state belonging and the subsidiary feelings of localisms and regionalisms. But space itself is ontologically neutral. It is a container for an emergent human, that liberal being freed from the world so that she might make a home in the world. Numerous refinements and critiques of Anderson have been written since the publication of Imagined Communities, many of them quite incisive. But Anderson’s basic point remains quite important: the diff use imaginaries of stranger sociability, value abstraction, and social objectification that emerged in settler nations came to provide a meta-framework within which the discussion of sovereignty persists. The problem with Anderson’s account of the imagined political community of nationalism is not that it locates the origin of the nation-state at the wrong moment or in the wrong place. Rather the problem is that Anderson does not account for a division that emerged internal to the otherwise homogeneous space-time of nationalism. When we look at these differential narrative structures we find that although all people may belong to nationalism, not all people occupy the same tense or geography of nationalism. This occupational difference is clear when we examine stranger sociability, kinship, and the foreigner within the governance of the prior. Since Georg Simmel’s writings on the subject, the stranger as a phenomenon of modernity has been opposed to older premodern kin-based socialities, a point that Anderson also assumes. But this division—the claim that the modern shattered the premodern enclosure of the social by the family—already partakes in the narrative organization of tense and voice as defined by the politics of the governed. Remember that the modern is said to consist of voices freed from the constraints of kinship, the premodern to consist of those constrained by kinship. The one is said to confront the other as two different ways of life—and the prior became the foreign without ever moving. This difference makes a huge difference in how indigenous sovereignty is articulated and apprehended in the double sense of apprehension, an understanding and arresting, a moment of perception and criminalization. To be customarily prior within the governance of the prior all aspects of one’s social life and imaginary must be apprehensible within a specific, seamlessly coherent narrative tense—or, that is, the norm against which deviations are

Citizens of the Earth

221

read. Take, for instance, the gestures of social inclusion within the politics of recognition in Australia. From the 1970s through the turn of the twentyfirst century, Australian law and publics were seen to be newly inclusive of a variety of local modes of gender, kinship, and the family. Indigenous forms of kinship and the family were allowed to be the basis for land and property claims. But stranger sociality quickly absorbed local and regional imaginaries and practices of kinship. To be recognized by state and public, indigenous forms of kinship and the family had to conform to the social imaginaries of stranger sociability mentioned above. It had to be based on rules and norms that persons outside the group and independent of immanent group dynamics could apply to the group as logical principles of inclusion and exclusion. In the parlance of social anthropology, kinship had to become a matter of descent rules viewed from the position of nowhere rather than densely situated and emergent social affiliations. Indigenous people had to say how the descent (inclusion and inclusion) worked rather than say how they decided who “picked up” the negotiated obligations and possibilities within the general field of local social belonging. In other words, kinship and the family, by being defined by abstracted rules of descent rather than immanent practices of affi liation, were made to conform to the tense of the other within the governance of the prior. Affi liation is after all oriented to the present emergent, whereas abstracted rules of descent are oriented to the past perfect. The governed would never be allowed to sever its relation to the past without negating its claim on the customary and thus its difference with the governance of the prior. Indeed, the question of how to constitute local principles of social inclusion and exclusion is one of the most heated fields of debate within and across indigenous communities—dispersing in the process the very notion of a community as such—say the Zapatistas who might be seen as trying to  create a different imaginary of citizens of earth in which the choice is neither the negation of the methods of belonging and being responsible for maintaining the earth nor the state-based ideas of bordered fiefdoms. Those indigenous men and women who understand practices of obligation as more primary than abstract rights of inclusion are constantly confronted by a variety of laws in a variety of state contexts that demand some abstract principle of kinship and descent as the basis for organizing legally productive difference. But every principle of inclusion is a social division that opens the group at the very moment its borders are sealed. This sealing as opening was dramatically witnessed in Seminole and Cherokee debates about the indigenous status of black freedmen and the politicization of these debates and

222

On Cosmopolitan Alternatives

decisions within the U.S. Congress. Thus, when the Cherokee Nation of Oklahoma voted to limit tribal citizenship to those who could trace their heritage to the Dawes Rolls of 1906 (thereby automatically disenfranchising most freedmen who were placed on separate rolls irrespective of their kinship and descent), members of the Black Congressional Caucus led by Diane Watson sought to deny federal funds to the Oklahoma Cherokees. Her office petitioned to withhold funding under the Native American Housing Assistance and Self-Determination Reorganization Act of 2007 until it reinstated the black freedmen. But surely this ontology does not saturate all geontologies. The earth is  made and conquered by making this ontology the true measure of all geontologies—the cardinal index and technique of knowing who has a sovereign claim and how that claim is or is not restricted; the theories and practices of being that subtend human-human and human-nonhuman relations, say, western ontologies of land and various indigenous geontologies; and the ethical obligations these ways of knowing and being entail. As Robert Nichols has shown, the principles of personhood they presuppose, and the ontological categories they project, assume that all geontologies can be placed on the same balance and weighed. Numerous indigenous studies scholars, from Vine Deloria to Dale Turner in the United States and Deborah Bird Rose to Irene Watson in Australia, have decisively demonstrated this not to be the case. What the soil is, what the territory, the sky, and the land are, cannot be disembedded from the obligations of belonging that are incommensurate with the disembedded “free” citizen-subject. This knitting of sky-human and nonhuman animal, soil and flesh must first be dispossessed in ways that ramify across epistemological, ontological, and deontological grounds—the techniques of knowing who has a sovereign claim and how that claim is or is not restricted; the theories and practices of being that subtend human-human and human-nonhuman relations, say, western ontologies of land and various indigenous geontologies; and the ethical obligations these ways of knowing and being entail. The problem is not, however, merely anthropological: the demonstration that various indigenous categories and metaphysics are not compatible with the categories and metaphysics of contract theory. The problem touches a deeper question that is as relevant to critical indigenous theory as it is to liberal political theory. What is the “territory” of theory? What are its reach, scale, domain, and reference? Should indigenous critical theory claim only the restricted territory of indigeneity, a specific and particular region of thought, society, ethics, or politics? If not, how does critical indigenous

Citizens of the Earth

223

theory belong to the kinds of dwelling that make critical indigenous theory different? Does it want to claim a general economy of sovereignty—an ability to be untouched by the demands or obligations of any specifiable sphere, boundary, or scope producing in its wave a new type of universal lordship— that political theorists like Waldron claim? In other words, critical indigenous theory does not merely provide endless accounts of alternative philosophies. It problematizes as a territorialization political and social theory itself. Waldron is already “cosmopolitan” insofar as his description of personhood and society breaks with any and all kinship to a specific place or people. Contract theory treats the foreigner as if he were not foreign, as if his language was a universal translator.

Cosmopolitan Earths Of course, Waldron’s theoretical cosmopolitanism is met by a variety of approaches that directly address the problem of the foreigner as a problem of encounter, dialogue, and translation. For example, in a compelling reading of the stoic cosmopolitanism advocated by Martha Nussbaum, David Harvey slowly unpacks the tensions—if not downright contradictions— between the demands of cosmopolitanism to be an ethics of universal fellowfeeling based on a territorial imaginary of the cosmos and to be a politics of geographical and anthropological specificity and difference. Nussbaum’s solution to determination of local cultural territorialism on the ethical and political imaginary is an educational scheme that foregrounds the geographical and anthropological knowledge necessary for cultivating a cosmopolitan form of public deliberation. True cosmopolitanism cannot treat citizenship or the earth as if they were already agreed-on categories. And the proper, liberal way of adjudicating these various life-worlds is to approach them in a manner that would allow for a robust public deliberation over the warrant of their life-form. “To conduct this sort of global dialogue, we need knowledge not only of the geography and ecology of other nations— something that would already entail much revision in our curricula—but also a great deal about their people, so that in talking with them we may be capable of respecting their traditions and commitments. Cosmopolitan education would supply the background necessary for this type of deliberation.” Anthony Appiah has likewise noted a universal concern for others beyond those to whom we are related by the ties of family or even the more formal ties of a shared citizenship. In other words, cosmopolitanism is the

224

On Cosmopolitan Alternatives

term we use to indicate the challenge of, rather than the solution for, squaring universal concern with particular differences. And Appiah suggests that even within a globalized world, where the cultural referents and backdrops are increasingly shared and traded, this problem of squaring universalism with particular life-worlds will not be solved. Here he reflects on the meaning that the moral philosopher Bernard Williams gave to the concepts of moral projects and actions. Responding to utilitarian understandings of the good, Williams argues that moral projects cannot be measured, as many utilitarian approaches would have it, by assessing happiness or pleasure, or any action for that matter, from the point of view of a systemized impartial perspective. And this is because happiness depends on a person “being taken up or involved in any of a vast range of projects” and commitments. “To be taken up” and “to be involved” has a much stronger meaning for Williams than to be merely interested in something. Projects are the thick subjective background effects of life as it has been lived, and these thick subjectivities provide the context of moral and political calculation. As a consequence, happiness, goodness, and justice are never judged by the consequences of a set of impartial decisions or from the perspective of “the view from nowhere.” These judgments and views always occur within thick and particular life projects. As a result, in any given social world, multiple moral and political calculations proliferate because no one ever lives the exact same project. Here we begin to see the strange relationship that critical indigenous theory has to cosmopolitanism, sovereignty, and the governance of the prior. Critical indigenous theory is in, and tangential to, a social world whose moral and political calculations seek to inculcate presuppositions about territoriality and sociality set at odds with the governance of the prior and the trap of sovereignty it projects. The need to create new languages of territoriality and sociality is why Turner coins the phrase “word warriors” to specify a specific political activity. And this is why, while vital, an ethnographic project is not sufficient: that is, critical indigenous theory is not reducible to the anthropology of indigenous worlds. Simply describing what actually exists in the world is not sufficient for a critical project that seeks to examine the potential that every actual world contains. Instead, critical indigenous theory works between these worlds as alternatives to (settler) state sovereignty and the cosmopolitan difference it projects and the actual struggles of indigenous people to bring this alternative reckoning of what being is when figured as belonging in an earth. I would say that there are three key aspects of this critical work that are relevant to any attempt to create a globally grounded and harmonious political system.

Citizens of the Earth

225

First, critical indigenous theory refuses the division between the universal and the particular, including any feeling-form that claims to be based on such a division. It does so for two reasons. On the one hand, critical indigenous theory refuses to think land as truthfully apprehended through the geographically correct, and especially to think geography in the cartographies of capital and state. On the other hand, critical indigenous theory refuses to locate the good of liberal cosmopolitanism or alternative cosmopolitanism in a timeless tradition—whether universalism or tradition. It rejects both the fantasy of the free subject detached from social worlds and the fantasy of the subject constrained by traditional worlds; and so it refuses a variety of possible distinctions that arise from this difference. Instead, it seeks to situate something like Dasein, or human ontology, into a geontology that would refuse the divisions of the human and nonhuman, animate and inanimate, and organic and inorganic on which the governance of life operates within capital and state. Second, critical indigenous theory locates the source of these alternate vocabularies of being as belonging to an earth in the practices of the self being cultivated in actual living indigenous worlds, even if those practices are only potentials. This means that within this “theoretical” domain lies no real theory at all, not overall, but instead a tendency, a route, a path that one can walk or not. Whatever the major points of critical indigenous theory are, the ends of indigenous critical theory are to make this spacing practical in a world in such a way that they make the content of statements and practices practical and sane rather than impractical and mad—or if not mad, then mythological. This becomes especially clear if we understand alternative cosmopolitanisms from the perspective of askesis rather than culture and semantics. When understood as askesis, the project of critical indigenous theory is not merely to be a wordsmith but to understand words as practices of the self that build the background, which in turn creates an ease of unreflective action in the associations of desire and the uses of ethical substance. Words provide a dexterity of being that emerge from daily practices of mouth, eye, and ear that trace and retrace the movements of meaning, script, and sensory embodiment. And in relating these substances, memories, and dispositions, they create practices of caring for and being obligated to each other and the world in a new way. In other words, the purpose of these theoretical exercises is not to discover knowledge and truth, and certainly not to discover identities, though these aims are not excluded from the exercise. The conversations are about the conditions of care and obligation that emerge when the world is knitted together and

226

On Cosmopolitan Alternatives

animated in a specific way. They create new bodies in which new desires dwell. This approach to being as belonging in an earth may or may not be cosmopolitan. It certainly would not be able to make sense of Kant’s distinction between the freedom all should have to travel anywhere and the rights of only some to settle somewhere. Travel would itself be saturated with askesis, with an embodied theory or obligation of conditions, not merely of moving across a place but of being and relating to a place. It would demand a transfiguration rather than a transport.

Chapter 12

The Idea of Global Citizenship DAVID MILLER

T

he idea of global, or world, citizenship is a very old one, but it has recently come back into fashion. To avoid a possible source of confusion right away, it is not equivalent to the idea of global, or world, government. If some form of global government were to be created, then perhaps it would have global citizens to go with it. But enthusiasm for global citizenship reaches far beyond support for world government, whose feasibility problems and practical limitations are widely recognized. The thought is that it may be possible for people to be and act as global citizens even in the absence of political institutions at a global level that are sufficiently like those that presently exist at a national level to qualify as government in the normal sense. One of the questions I shall be addressing is what this might mean. To anticipate the main idea of the chapter, I am going to argue that citizenship is a political idea—the relationship that holds between co-citizens must be a political relationship whether or not it involves institutions of government in their familiar form—whereas the idea of global citizenship is essentially apolitical. Whatever merits it may have in other regards, global citizenship is damaging if it comes to be seen as a substitute for or alternative to our political relationships. I want, in other words, to defend real citizenship against its ghostly shadow, which is what I believe the idea of global citizenship amounts to once we understand it properly. My starting point will be a short passage by Hannah Arendt that sets out in its starkest terms the position I have just outlined. It comes from an essay she wrote about her friend and mentor Karl Jaspers entitled “Karl Jaspers: Citizen of the World?” “World citizen” was a title that Jaspers liked to apply

228

On Cosmopolitan Alternatives

to himself and, indeed, an idea that informed much of his philosophical writing, which involved an attempt to write a unifying history of world philosophy, to portray the different currents of thought stretching back across many centuries and different continents as flowing into a single stream. Arendt in the larger part of the essay praises this endeavor, but it is the opening passage that caught my eye and that is most relevant to my present argument. It begins succinctly: “Nobody can be a citizen of the world as he is the citizen of his country.” And then after claiming that any world government whatever its form would be “a forbidding nightmare of tyranny,” Arendt continues: “A citizen is by definition a citizen among citizens in a country among countries. His rights and duties must be defined and limited, not only by those of his fellow citizens, but also by the boundaries of a territory. Philosophy may conceive of the earth as the homeland of mankind and of one unwritten law, eternal and valid for all. Politics deals with men, nationals of many countries and heirs to many pasts; its laws are the positively established fences which hedge in, protect, and limit the space in which freedom is not a concept, but a living, political reality.” I am not in the business here of defending Arendt’s contributions to political theory in general. Recall Isaiah Berlin’s damning verdict: “She produces no arguments, no evidence of serious philosophical or historical thought. It is all a stream of metaphysical free association.” The passage quoted above illustrates well both her strength and her weakness. It is a bold and challenging claim about the nature of citizenship. But the claim is simply asserted; there is no supporting argument. “A citizen is by definition a citizen among citizens of a country among countries.” But is that really so, or is it just stipulation on Arendt’s part? Consider citizenship under the Roman Empire, whose aspirations were unlimited (sine fine) in scope. People proudly proclaimed their status as Roman citizens (a famous example is the Apostle Paul, whose ability to travel around and spread the gospel was in part due to his having inherited the status of Roman citizen, despite having been born in what we now call Turkey). In doing so, they no doubt implicitly recognized that there were many other human beings who were not citizens; the valued status of citizen was contrasted with its opposite (being a slave, for example). But did Roman citizens also recognize the existence and standing of other, rival citizenships to their own? Would they have had any compunction in extending the Empire to incorporate hitherto independent cities or regions on the grounds that such action would involve denying the rights of citizens in other places? Surely not. If I am right, then we cannot say that the very idea of citizenship in place A depends on the recogni-

The Idea of Global Citizenship

229

tion of other citizenships in other places. So we cannot rule out global citizenship by definitional fiat, which is what Arendt seems to be doing here. We cannot say that the very idea of world citizenship is incoherent because there is no place other than the world from which it can be separated by territorial boundaries. But there is another idea in the passage above that is more fruitful and provides the thread for my paper. Arendt draws a contrast between politics and philosophy, and suggests that citizenship is a political concept and not a philosophical one. What this statement means, however, is not very clear, and I hope to make it a bit clearer as I proceed. So let’s begin to think about what the idea of world or global citizenship actually means or could mean. Its origins are usually traced back to the Greek Stoics and especially to their Roman successors, including Cicero in the first century b.c.e. and later Seneca and the Emperor Marcus Aurelius. After that period, the idea of global citizenship was largely submerged until it reappeared in the work of certain Enlightenment philosophers, especially in that of Immanuel Kant. It enjoyed political popularity in the middle years of the twentieth century, when various world-citizenship organizations were established—you could, for example, add your name to the International Registry of World Citizens, established in 1949 and now claiming to have 900,000 members—and supported by such prominent philosophers as Bertrand Russell. So it is an idea with a long history but without, in general, any very clear meaning. I have suggested already that it should not be confused with advocacy of world government, an idea popular mainly in the middle decades of the twentieth century among certain intellectuals, including Russell himself. This expresses one specific version of global citizenship but by no means the only one possible. The concept originates, I believe, from something much less tangible, the idea of human beings as forming in some sense a single community. There is such a thing as mankind over and above the many and various peoples of the earth. Cicero expresses this idea using the metaphor of concentric circles. The innermost circle is made up of our family and friends. Next comes the city, where we enjoy a complex set of economic, legal, and political relationships with fellow citizens. Then there is the wider group which we would now describe as a nation or people: Cicero describes it as the fellowship of those of the same “race, tribe and tongue, through which men are bound strongly to one another.” Finally, there is the fellowship of all people with each other. Here, Cicero claims “the bonding consists of reason and speech, which reconcile men to one another, through teaching, learning,

230

On Cosmopolitan Alternatives

communicating, debating and making judgements, and unite them in a kind of natural fellowship.” This basic idea is, in fact, the one that Jaspers was later to pick up and express in his claim that the unity of mankind was to be found in the possibility of universal communication between people. Although we may speak different languages, our common capacity for language and reason makes communication between us possible (in a way that it is not possible with animals, for example). Moreover, it is not just possible but something we should positively aim to achieve: we owe it to our fellow human beings to try to understand them, to make sense of what they are saying. Notice, however, that although Cicero is telling us not to lose sight of the outer circle, he does not see it as competing with or displacing the various inner circles. The picture is one in which we recognize human beings first as close relations; then as fellow citizens in the strict sense, related to the city itself; then as members of the same tribe or language community (as Greek, for example); then finally just as members of the human species. Here, there is a contrast with those early expressions of world citizenship that seem to have involved freeing oneself from all of the inner circles and deliberately positioning oneself as an outcast, a person with no specific city or country. Diogenes the Cynic is supposed to have said, when asked where he came from, “I am a citizen of the world.” The main point of this remark was just to deny the relevance of any particular personal facts, such as where he was born or where he happened to be living. Diogenes saw this perspective as essential to his philosophical activity. But it had no political content: there was no political relationship between Diogenes and those other persons (if there were any) who joined him in declaring themselves citizens of the world. I shall come back to this point about the apolitical character of world citizenship shortly, but for now, I want to underline that we have already uncovered two different versions of global citizenship as a form of personal self-identification with the rest of humanity. In the Cicero version, global citizenship exists alongside, and apparently in harmony with, a number of other affi liations of more limited scope; whereasin the Diogenes version, it involves renouncing all the more specific identities that human beings normally enjoy. I don’t want to imply, however, that for these ancient philosophers, global citizenship was purely a matter of identity. For Cicero at least, it had certain concrete ethical implications. First and foremost it involved a requirement to avoid inflicting harm on other human beings. As he puts it, “of

The Idea of Global Citizenship

231

justice, the first office is that no man should harm another unless he has been provoked by injustice.” And this principle is clearly meant to apply throughout the fellowship of mankind. Beyond that, however, is an interesting second requirement, which states that one must allow others to benefit from one’s actions where one can do so at no cost to oneself. So, for example, where there is plenty of water in the stream for all to drink, it would be wrong to deny another person his draught. Or, in another of Cicero’s examples, if one has lit a fire and somebody else wants to take a light from it, one should allow him to do so. Th is requirement is something less than what we would now recognize as a duty of aid, but it does set certain limits to what an individual person or a community can claim as their exclusive property. And Cicero goes on to talk about other duties with universal scope, for example, those having to do with the treatment of defeated enemies in war. I have been using Cicero to illustrate the interpretation of global citizenship as an ethical idea, even though he does not, as far as I know, use the phrase “citizen of the world” himself. Other Stoics, especially Marcus Aurelius, were more forthcoming on that score, perhaps because Marcus was an imperialist whereas Cicero was a republican. But if we read the Meditations to see what Marcus is actually recommending when he tells us to think and act as though we are members of the universal city of mankind, we see that what he is expressing is a philosophical idea. He assumes that his readers have a clear sense of what is owed to the other members of a real, concrete city, such as Rome. And then he says that we should try to think about our relationship to the human species as a whole in an analogous way. Reason, Marcus says, is the common possession of mankind, and so “the reason which enjoins what is to be done or left undone is common to all.” In other words, there is a universal morality. Because as rational creatures we are subject to this common moral law, we are all citizens of the universal city. But Marcus never suggests that we are therefore required to enter into a political relationship with human beings at large, in the sense of establishing common institutions or practices. Indeed, it is not clear whether any practical consequences follow at all. The Meditations were written while Marcus was acting as Roman commander-in-chief in the so-called Marcomannic Wars, a series of sometimes brutal engagements with Germanic tribes (vividly depicted in the opening scene of the fi lm Gladiator) that earned him the title “Germanicus”—conqueror of the Germans. His Stoicism appears not to have deterred him from ordering the slaughter or brutal punishment of his enemies as the occasion demanded.

232

On Cosmopolitan Alternatives

I have said that when Stoics in the classical period talk about world citizenship, they are not using citizenship in its normally accepted sense as involving a political relationship between human beings. But I need now to explain more fully what I mean by a political relationship and therefore why these ancient cosmopolitan ideas do not imply one. I assume, fi rst of all, that when standing in a political relationship, people are committed to resolving their disagreements in certain ways and not in others—in par ticular, not by fighting or by the direct application of coercive force. Political relationships are necessary because it is always possible that people will disagree about how to order their other relationships and that this disagreement cannot be resolved by rational discussion alone. So politics must involve the idea of an authority whose decisions on some contested issue are generally taken as binding—either an individual arbiter, such as a Hobbesian sovereign, or an institution that uses a procedure, such as majority voting, to determine the outcome. It is then a condition of A and B standing in a political relationship to one another that even if in other respects they are fierce rivals or competitors, they should be willing, in general, to accept the decisions made by the authority as having normative force. I insert “in general” here because a political relationship can coexist with specific instances of dissent, that is, cases where people reject the decision, disobey the law, and so forth. What can’t be the case, if the relationship is to hold, is for the involved parties merely to pick and choose which rulings to comply with and which to ignore. It follows that all political relationships involve a certain weak form of reciprocity, in that those who are party to them must generally be willing to accept authoritative decisions that go against their wishes in the expectation that they will benefit from later decisions. There is also a further form of reciprocity involved, namely, that participants should avoid pressing for decisions they know in advance will prove completely unacceptable to other parties. This holds even in cases where the relationship is a very unequal one. A king who rules his subjects politically—as opposed to dominating them by the use of brute force—must recognize certain limits to his rule, avoiding measures that would be so repugnant that those subject to them would be moved to end the political relationship through rebellion or secession. To put the point differently, political relationships must meet certain legitimacy requirements, such that reasons can be given to those subject to them to accept the terms of the relationship; these will typically include limits on what can be decided, for example, a set of customary or constitutional rights that must be respected.

The Idea of Global Citizenship

233

Citizenship is centrally a political relationship between co-citizens (it is usually also a legal status and a social role—see further below—but these are derivative features). As such, it involves the weak reciprocity that, I have suggested, all political relationships must involve, but it also requires, by its nature, stronger forms of reciprocity. How strong this requirement is depends on the form that citizenship takes. The common feature is that citizens aim at reaching an agreement with each other so that each can accept the authoritative decisions that are made. In liberal understandings of citizenship, this takes the form of an agreement on basic principles of justice, which form a kind of boundary within which other matters can be decided procedurally, for example, by majority voting with each citizen supporting his or her preferred option. In republican understandings, the aim is to achieve a consensus on what is to be done by an exchange of reasons that allows participants to modify their initial positions and reach a compromise. It would be wrong to assume that global citizenship must mirror in all respects the forms of citizenship that have so far been achieved at citystate or national level: that would be to impose too demanding a standard. Nevertheless, if it is to be a form of citizenship at all, the relationship between co-citizens must be reciprocal. To create such a relationship in turn requires two things. First, citizens must know who their fellow citizens are and must expect them to act as citizens, that is to say, be motivated to achieve whatever form of political agreement is appropriate to the particular relationship in question. Second, each must know enough about the others— about their beliefs and their interests—to know which outcomes are ones they could possibly accept and which are not. We could again restate these conditions in terms of legitimacy: all forms of citizenship presuppose principles of legitimacy that are common knowledge among the citizen body and that limit the demands that can be pressed. To be clear, when I claim that to be a citizen, one must stand in a certain kind of political relationship with fellow citizens, I do not mean to imply that a citizen is only a citizen when acting politically. By virtue of the relationship that exists between citizens, each acquires obligations to the others that are not only political but also ethical in nature. Thus, as I suggested in an earlier discussion, many of the concrete actions that a person is likely to perform as a citizen have no direct political component: they may involve, for example, going to the aid of a fellow citizen who is in some kind of trouble, or taking part in volunteer work to provide local amenities or help conserve the environment. What makes these activities elements of citizenship, however, is not simply their ethical character but their “public-spirited”

234

On Cosmopolitan Alternatives

character. The person who performs them has a sense of the “public” on behalf of whom he acts, and this public is formed by the political relationship between its members. There is a difference between volunteering to help repaint the classrooms in your local school and volunteering to travel abroad to repaint classrooms in Quito, say—the relevant difference being that the second activity is purely charitable in nature, whereas the first is undertaken as part of a “cooperative venture for mutual advantage,” to use Rawls’s phrase, to which fellow participants can also be expected to make their contributions when the occasion arises. The problem, therefore, with the ancient conception of world citizenship as found in the work of authors I have referred to is that it does not entail a political relationship of any kind. At most, it involves assuming a cosmopolitan identity and an ethic of universal respect for human beings. These qualities may be desirable in themselves, but we now have clear grounds for saying that global citizenship so conceived cannot be a genuine form of citizenship. My argument is not merely that it is not citizenship in the same sense as city-based or national citizenship; that much even its defenders would probably concede. My argument is that since it does not presuppose any kind of political relationship, and therefore any kind of reciprocity between people, it cannot be citizenship at all. If we took his words literally, there would be something very odd indeed about Diogenes the Cynic sitting in his wine barrel and proclaiming himself a world citizen without asking the question, who exactly are my fellow citizens and what can I expect them to do for me? But perhaps this critique applies specifically to the ancients. So let me now run the clock forward and consider the case of Kant, often regarded as the leading figure in the modern revival of cosmopolitan citizenship. Kant was evidently influenced by the Stoics, as Martha Nussbaum has shown, but also further developed their thinking in ways that might seem more congenial to world citizenship as a version of the genuine article. He dealt with the subject under the general heading of Recht, a term that is rendered into English sometimes as “right” and sometimes as “law” (I shall use the former). He divided public right into three branches: the first covering the internal constitution of the state; the second concerning the rights of states in relation to one another, or, as we might now say, international law; and the third involving the relations between nations and their members at a global level, which he calls cosmopolitan right. Here we are interested in the second and third branches, and we see already that Kant gives the state a much more prominent role in his cosmopolitanism than did the ancients. Much of

The Idea of Global Citizenship

235

what they might have included as part of a cosmopolitan ethic for individuals— for example, the laws of war—Kant treats as a duty of states, as collective bodies. Kant’s main concern in this part of his political philosophy is to find a way to prevent states from going to war with each other; he looked upon war with utter repugnance. And so under the heading of international right, he proposed that states should form a league or association with each other, under whose terms they would renounce the use of military force within the association and establish diplomatic institutions that could be used to settle disputes between them. This association is sometimes described as a federation of states, but the term is misleading since Kant makes it clear, first, that membership in the league is voluntary and states can decide to leave at any time and, second, that the purpose of the league is specifically to prevent war: there is no transfer of governmental powers to a federal body. It is true that there are places in his writing when he seems to think that only something like a universal state could fully achieve the aim of perpetual peace. But this idea is equally firmly rejected not only on the grounds that such an institution would turn into a “soulless despotism” but also because it denies the moral personality of each independent state. If one is a citizen of a state that has entered into such a league, does this in any sense amount to global citizenship or even a step toward it? I cannot see that it does. One’s relationship to people in other parts of the league is entirely mediated by the par ticular state one belongs to. Kant gives clear hints that the business of the league would be conducted through ministers and officials. There is nothing inherently wrong with Kant’s proposal in itself, but to dress it up in the language of world citizenship would be wholly misleading. Perhaps then we should look instead to the third branch of Recht, cosmopolitan right. Kant begins here with the idea that the surface of the earth is originally the common possession of mankind, and he derives from this concept the proposition that each of us has the right to travel in order to interact with people in other lands and specifically to attempt to engage in commercial relations with them. How far this right extends is again a little unclear. Kant speaks of hospitality, which he interprets to mean “the right of a stranger not to be treated with hostility when he arrives on someone else’s territory.” But he immediately goes on to say that such a person can be turned away so long as doing so would not cause his death. He is also explicit that the right to travel and engage in commerce is not equivalent to the right to settle in perpetuity. Here again, Kant displays a perhaps surprising

236

On Cosmopolitan Alternatives

tenderness toward the idea of national autonomy, even if tempered by a qualified right to freedom of movement of the kind just described. Once again there seems to be nothing in Kant’s conception of cosmopolitan right that deserves to be called “global citizenship.” He gives us the right to move around on the surface of the earth and to enjoy the presumption that wherever we decide to land we won’t be received with hostility. But in what sense is this citizenship? Are frequent flyers citizens by virtue of the freedom they enjoy? It hardly seems so. Once again what we find missing here is any political relationship between would-be “citizens” and specifically any reciprocity in adjusting to the demands of others. It begins to seem somewhat mysterious as to how Kant gained his reputation as a far-sighted cosmopolitan, over and above the fact that he liked to think and speak of himself as a world citizen and, as we have just seen, introduced the unfamiliar notion of “cosmopolitan right.” But there is one further aspect to his thought that may help explain why he has been so regarded. Kant certainly had a vision of the unity of mankind, of nations drawing closer to one another gradually over time, of increasing levels of international commerce and communication of other kinds, culminating eventually in a peaceful, orderly world. He believed that this unity would happen not because anyone willed it directly but as an unintended by-product of the pursuit of economic and security interests by states. We can, therefore, say that Kant exhibited what Catriona McKinnon has recently called “cosmopolitan hope.” And we might also want to say that anyone who shares this vision and tries to hasten it along a little by their own actions could be described, with a stretch, as a “global citizen.” As I will argue later, I do not favor this usage, which, I believe, dilutes the notion of citizenship too far; but if the question is whether Kant has any claim to the title, it would be on this basis rather than on the basis of his claims about international and cosmopolitan right. So far, I have been looking backward in an attempt to throw light on the meaning of “global citizenship,” and what has emerged is that this concept appears to have been applied to three different things, none of which, I’m arguing, amounts to citizenship in any recognizable sense. The first is simply a matter of identification: we should identify with humanity as a whole, either alongside or instead of identifying with specific groups of human beings, such as our nation or our city. The second is recognition of ethical duties toward all human beings as such, for example, the duty not to cause them avoidable harm. The third is the idea of states coming together and agreeing by treaty or in some other way to respect each other’s rights, avoid

The Idea of Global Citizenship

237

recourse to war, and submit their disputes to arbitration. Each of these proposals may be valuable in itself, I have said, but they do not, either separately or together, constitute a form of citizenship. But these ideas were expressed in past centuries. Has the world now changed in such a way that real global citizenship is for the first time possible? I want to explore three avenues down which we might look to reach this conclusion. The first avenue points toward international law and human rights. There is now, for the first time in human history, something that we might describe as an international legal regime for individuals, as opposed to the older idea of the law of nations as a set of rules governing the relations between states. Starting with the United Nations’ Universal Declaration of Human Rights in 1948 and continuing through the various later declarations and protocols, signatory states have bound themselves to treat their citizens in certain ways. Moreover, these rights and obligations are potentially enforceable inasmuch as when one state defaults and begins to violate the rights of its own subjects, other states are permitted, even perhaps required, to take steps to put this situation right. They can make such a correction, for example, by imposing sanctions on the offending state or, in the most extreme cases, by engaging in acts of humanitarian intervention to prevent further violations from taking place. And although the international legal regime in this way depends largely on states acting singly or together to make it effective, there is also now the International Criminal Court, an independent body charged with bringing those who have violated human rights on a large scale to justice. Let’s set aside any doubts about how effective this international regime really is and focus on the question of whether it provides us with reasons for thinking that global citizenship is at last becoming a reality. Clearly, having civil and political rights is an important part of what it means to be a citizen, at least in modern understandings of citizenship. So any moves toward strengthening those rights are also moves to strengthen citizenship. But the question that has still to be asked is citizenship of what? Being a citizen involves being a citizen of somewhere—a specific political community. It is possible to be a citizen within more than one unit at the same time—our city, our nation, and now perhaps Europe, for example. The question I am asking about international law, when it is used to protect the rights that make up citizenship, is within what unit are these rights being defended? And the answer, in nearly all cases, is that the rights in question are the rights people enjoy, or should enjoy, within nation-states. If, for example, Britain were to apply sanctions to Burma in order to protest against the denial of basic

238

On Cosmopolitan Alternatives

political freedoms in that country, what it would be doing is trying to protect the rights of Burmese people as Burmese citizens; it would be trying to secure for them rights that would then be enjoyed and exercised within that country. What international law is primarily doing, therefore, is not creating a new form of citizenship but creating instruments that can help support national citizenship in different places by giving people new rights or by turning rights that only exist on paper into real ones. I say “primarily” because there are a limited number of rights that are not in this way linked to national citizenship, most notably, the rights of refugees. When a refugee arrives at the borders of a state and makes a claim based on the so-called principle of non-refoulement—that is, a claim to be taken in rather than to be sent back to a place where his life will be in danger—he is plainly not claiming this right as a citizen of anywhere in particular. He is not claiming already to be a citizen of the state he hopes will take him in. But even if we were to focus attention on this limited set of human rights that are not implemented through national citizenship, it is pretty clear that they do not add up to a new and separate form of citizenship. What is missing once again is the political relationship between fellow citizens that I have argued is an essential component of that idea. Enjoying the protection of a legal regime, although it can provide the basis for citizenship, is something different from citizenship itself. Let us try a second avenue that might appear to lead us toward global citizenship proper. Here we start from something that plainly does have a political character, namely, the ever-expanding network of international groups and organizations trying to advance political objectives at a global level, or what is often now referred to as global civil society. I am thinking here of such bodies as Greenpeace, Amnesty International, and Oxfam, bodies that are not created by states or coalitions of states and so for that reason cannot simply be treated as extensions of national citizenship. The suggestion is that when people join such groups and take part in their activities, they are at the same time becoming and acting as global citizens. They are engaging in activities whose nature is essentially political, and they are doing so on behalf of people everywhere. In a concrete case, you may be supporting food aid to Mozambique or helping a political prisoner in China, but that is accidental; tomorrow your energies could be directed toward somewhere entirely different. The responsibilities you acknowledge are global in character. What should we make of this? It’s important not to confuse the question of whether these groups and activities are things we approve of with the question of whether they are manifestations of a new form of citizenship

The Idea of Global Citizenship

239

beyond the nation-state. Given the examples I’ve cited, most of us would no doubt wholeheartedly endorse what these groups are doing (it is characteristic of those who want to portray global civil society as a new arena of citizenship to refer only to those actors within it who have nice, humanitarian aims). But should we call it citizenship? One question that immediately arises once again for participants in such groups is who their fellow citizens are supposed to be. One could perhaps speak, a bit unnaturally, of cocitizenship within each of these organizations, but what about the relationship between the members of the group and their political targets, that is to say, either the powerful bodies they are likely to be opposing, such as states that violate human rights or damage the environment, or the people they are trying to help? This relationship does not seem to be that of citizen to citizen. There is no reciprocity involved. Of course such organizations may decide to engage in forms of consultation with their client groups. Oxfam, for example, has adopted an Accountability Charter that commits it to consulting with a range of groups and individuals who it defines as its “stakeholders,” including people in developing countries to whom it is supplying aid. This approach makes perfectly good sense, but I doubt that it establishes a form of relationship that can adequately be described as citizenship. In the end, Oxfam and the people who contribute to it will decide on its priorities. If for any reason they decide that their food-aid program to a particular country is not effective or is helping prop up a repugnant regime, they will withdraw. In that sense, the relationship between the nongovernmental organization (NGO) and its clients is a voluntary one, at least on the side of the NGO. As for the relationship between the organization and the governments it is targeting, that is surely best described as one-way pressure rather than reciprocity. It would be not merely unnatural but positively bizarre to describe the relationship between, say, the members of Amnesty International who are trying to negotiate the release of political prisoners and the military junta in Burma that is holding those prisoners as one of co-citizenship. So my view about the groups that make up global civil society is that they are certainly political but not political in the way that citizens have to be. They do not have to engage with others on terms of reciprocity, which gives them a kind of freedom that citizens lack. They don’t carry the responsibility of having to reach agreement with those who are their equals that will then form the basis for an authoritative decision. If they have to make compromises, they will be on pragmatic grounds rather than as a matter of principle. Amnesty International may decide to mute its criticisms of the

240

On Cosmopolitan Alternatives

Burmese government if it thinks that will help get more prisoners released, but it doesn’t have to moderate its stance on grounds of principle, in the interests of coming to a decision that everyone can accept. Rather than saying that these groups exemplify global citizenship, it would be better to say that we need them precisely because global citizenship is what we don’t have and foreseeably can’t have. In that sense, we can say that they contribute to that rather amorphous thing called “global governance.” They act as a check on the uncontrolled behavior of states just as the international legal regime does. But that is a different matter. I said there were three avenues we might try to follow toward contemporary global citizenship. The third avenue involves something we could describe as everyday global citizenship. What I have in mind here is the person who tries in daily life to live in such a way as to recognize the equal claims of all the world’s inhabitants. In particular, such a person will try to avoid inflicting harm on others, either directly or by using more than her fair share of global resources. She might, for example, try to reduce her carbon footprint to the size that, she judges, is sustainable for everybody on the planet— that is, if everyone had a footprint no bigger than hers, then harmful global warming would be avoided. She might give up eating meat because she calculates that the world can only produce enough food to satisfy everyone’s hunger by avoiding wasteful meat production. She might avoid buying goods that she knows are made using sweatshop labor. And so forth. Now so far this just looks like good ethical behavior—just an update in new circumstances of Cicero’s claim about the universal duty to avoid harming others. But the reason it looks a bit more like citizenship is that unlike more traditional forms of nonharming, it relies implicitly on reciprocity. That is, it relies on the assumption that other people are going to behave in the same way; otherwise the behavior begins to look largely pointless. There’s little value in my reducing my carbon footprint unless large numbers of others do the same. Or putting it slightly differently, the person who acts in this way sees herself as engaging in a form of collective action to make the planet safe for human beings to live in. Behavior like this is at least quasi-political, particularly if it is done in such a way as to encourage others to follow suit. Its corresponding limitation is that it is not more explicitly political, that it doesn’t involve creating an authority structure to ensure that the reciprocation really does occur. Not using plastic shopping bags yourself is good; organizing to get your town or city to declare itself a bag-free zone is far better. And it follows that the person who aspires to be a good global citizen in the everyday sense

The Idea of Global Citizenship

241

needs first of all to become an active citizen at the local and national levels because these levels are where the necessary authority structures already exist. It is becoming clear that in order to take effective action on the issues referred to above, such as global warming and natural resource depletion, a top-down approach where governments try to alter behavior by offering sticks and carrots, legislation and financial incentives to do things like buying a greener car, is not going to be enough. Citizen involvement is needed to produce the right kind of motivation and commitment. But it has to be done on a scale where people can see that others are reciprocating when they are asked to bear certain costs, like giving up their treasured Hummers or “Chelsea Tractors” for a smaller hybrid or electric vehicle. The most effective scenario will be one where citizens take the initiative in lobbying for better recycling or greater use of renewable energy resources, but political bodies, such as local councils, translate this initiative into policy in such a way that everyone is compelled, or at least strongly encouraged, to behave in the right kind of way (sorting their garbage, and so on). My argument, then, is that it is wrong to think of global citizenship as though it were an alternative to local or national citizenship. We can’t have a relationship to all our fellow human beings that is genuinely a relation of citizen to citizen; what we can do is identify with them, show ethical concern for them, arrange our institutions to avoid global harms. In other words, we can have citizenship that incorporates global concern; besides factoring in the beliefs and interests of our compatriots when collective decisions have to be made, we can take account of the concerns of people outside the political community. How best to do this is, of course, a big practical problem. It may involve forms of dialogue, such as inviting outside representatives into our assemblies to make their case. But this essay is not the place to start creating institutional blueprints. One likely response to the argument I have made is that it is needlessly restrictive to define global citizenship in such a way that it blocks the three avenues I have just been exploring. Since these are all avenues that are desirable for us to travel down, why refuse to award them the attractive-sounding name of global citizenship? Consider the second and third avenues especially. We can agree that it is desirable for people to get involved in at least some of the groups and associations that together make up global civil society; we think that by doing so they help promote valuable ends, such as protecting human rights or conserving endangered species of animals. We can also agree that it is good if people adopt a global ethic to cover some parts of their daily lives, such as limiting their carbon footprints. If it helps motivate

242

On Cosmopolitan Alternatives

people to act in these ways by describing their actions as forms of “global citizenship,” what objection can there be, especially in view of the fact that “real” global citizenship is not available in the absence of authoritative political institutions at a global level? Don’t new circumstances call for the creative development of our existing concepts, including the concept of citizenship? Although there can be no general reason for opposing conceptual change, the enterprise carries with it a particular danger that appears to be realized in this case. The danger is that when a concept is extended to apply in a new setting, it continues to embody assumptions that held in the original setting but cannot hold in the new one. Users of the extended concept are thereby misled, or perhaps self-deceived. Applying this observation to the case of the concept of global citizenship, first, someone who takes himself to be acting as a global citizen may consciously or unconsciously believe that his actions are being reciprocated by many others and that he is therefore contributing to a collective outcome, which, in fact, is not being achieved. His efforts are futile and constitute a diversion from political engagements that would actually bear some fruit. Second, citizenship, as I have argued, implies that the citizen is accountable to fellow citizens for the arguments she makes and the actions she takes. Such accountability is lacking in the case of some of the activities that have been described as forms of global citizenship. Suppose somebody contributes to a well-intentioned aid program that has malign effects on the local economy in the place to which it is directed (for example, sending consignments of second-hand clothing to a poor country, such as Uganda or Zambia, which results in serious damage to the local textile-making industry). Such a person has in fact behaved irresponsibly but will never be held to account for the results of her action. Covering the action with the mantle of citizenship disguises this lack of accountability: it suggests that there is some collective body within which deliberation has taken place and which can be held responsible if its behavior has harmful consequences. So I return finally to the Hannah Arendt quotation with which I began: Arendt’s concern, as anyone who is familiar with her writing will know, was to defend politics as the sphere within which the highest form of human freedom could be achieved. That was what lay behind her passionate defense of a bounded form of citizenship. I don’t want to make such loft y claims for politics. My insistence that citizenship must be seen as a political relationship and not, for instance, simply as an ethical perspective rests on a belief about the kinds of goal that can only be achieved politically and not by other

The Idea of Global Citizenship

243

means. The promise of citizenship is that we can have the power to get things done that politics creates but keep that power under our collective control (pace Hobbes who thought that was impossible). Arendt, who in her essay on Jaspers as a world citizen was also reflecting his fears about the danger of a nuclear holocaust, saw that something beyond national politics would be needed: she gestures toward Kant’s idea of an association of states to prevent war. And this move is surely correct: no one could seriously challenge the need for mechanisms beyond the state to help solve this and other global problems. My question has not been about the need for some form of global governance as such but specifically about the idea of citizenship. Nor do I want to deny that the responsibilities of citizenship change as we move into a world in which coordination at the global level on issues like climate change becomes increasingly vital. So we do need to reconceive citizenship, though not, I have argued, by changing the central arenas in which it is practiced. Not the global citizen, but the globally concerned citizen, is the ideal we should be aiming to promote.

Chapter 13

Why Does the State Matter Morally? Political Obligation and Particularity ANNA STILZ

M

ost of us think the fact that we belong to a particular state matters morally: it makes a difference to what we ought to do. Consider four ways we take the state to matter: 1. Duties to obey the law: In most places in the United States, I  ought not operate a motor vehicle with a blood-alcohol content above 0.08 percent. But if I lived in Brazil, I ought not operate a motor vehicle after drinking any alcohol at all: Brazil has a zerotolerance law. Duties to obey the law—if they exist—bind only those within the state’s territory, which means people in different territories may have different duties. 2. Duties to pay taxes: Most of us believe we are obliged to pay taxes to the revenue authorities of our own state, not the revenue authorities of some other state. The fact that I reside in the United States and not Norway gives me a duty to pay my taxes to the U.S. government, not the government of Norway. Moreover, this may not be just because the law requires it. Suppose a wealthy businessman consults his accountant, who recommends that he legally domicile himself in a tax haven like the Cayman Islands. The Cayman Islands is a reasonably just state; domiciling himself there will save him lots of money in taxes to support domestic welfare programs; and he can continue living where he now does. But many of us think that if he

Why Does the State Matter Morally?

245

takes his accountant’s advice, he would wrong his needy fellow citizens, even though he breaks no law. 3. Duties to participate politically: Many of us who live in democratic states think that we have a general duty to be a good citizen. I fulfill this duty by staying informed; voting; working for a campaign, party, or advocacy group; participating in social movements; or even committing acts of civil disobedience. But we don’t think I have an equal responsibility to involve myself in the democratic process in other countries, say, by reading Argentine newspapers or getting involved in an Argentine political campaign. 4. Duties on outsiders to respect self-determination: Many of us believe that the fact that a group has shared a state in the past gives them a claim to have their separate institutions respected. Suppose that the United States could do a better job ruling Haiti than the current Haitian government does, and suppose that it could intervene militarily in Haiti without injustice, perhaps in the aftermath of a future humanitarian disaster. Would the United States have the right to annex Haiti in such a scenario, even if it would do a better job ruling it? Most of us think not: to annex Haiti would violate the Haitian people’s right of self-determination. Each of these intuitive duties supposes that the state makes a moral difference to us. Though the existence of each of these duties is contested, let us suppose for a moment that their existence is plausible, as many people believe. Where might such duties come from? Why does the state matter morally? One story, to which I am sympathetic, is that these civic duties derive from a more fundamental natural duty of justice that is binding on all human beings as such. Simply as rational agents, we have a duty to establish state institutions and to comply with their laws and policies, at least when the state is reasonably just and legitimate. This is an unconditional duty that is binding on us independently of any special relationships we may have or any voluntary transactions we may have engaged in. Along these lines, John Rawls has argued that we have a natural duty of justice that “requires us to support and comply with just institutions that exist and apply to us. It also constrains us to further just arrangements not yet established, at least when this can be done without too much cost to ourselves. Thus if the basic structure of society is just, or as just as it is reasonable to expect in the circumstances, everyone has a natural duty to do his part in the existing scheme.”

246

On Cosmopolitan Alternatives

Immanuel Kant, on whose writings I draw later in this chapter, defends a similar natural duty account of our obligations to the state. However, A. John Simmons has put forward an important objection against natural duty theories of this kind, which we can call the particularity objection. Simmons argues that a natural duty theorist cannot establish that the citizen has any special bond to her own par ticular state, in the manner assumed by the moral intuitions we invoked above. The particularity objection has two parts: first, it asks why the natural duty of justice gives one the obligation to support and comply with the state rather than some other kind of just institution (as, say, a just nongovernmental organization (NGO), such as Oxfam). Why not instead think of the natural duty of justice as the duty to do justice oneself or—since collective action might sometimes be useful—to support whatever institutions might best facilitate just outcomes? Why support the state? Second, the particularity objection asks, even if the case for supporting states in general could be made, how does the natural duty of justice ground a special obligation to support and comply with our own state in particular rather than all just states, or perhaps the most just state in the world? As Simmons observes, “Even if you had perfectly general duties to promote justice or happiness, say, and consequently duties to support just or happiness-producing states, these duties would require of you that you support all such states, providing you with no necessary reason to show any special favoritism or unique allegiance to your own just state, and providing none of those with any special right to impose on you additional duties.”

Justice and Political Institutions Let us tackle Simmons’s particularity objection in two stages. First, why might we have a natural duty to support the state rather than a club, NGO, or other institution? Briefly, I think we are required to support states because we have preexisting, coercible duties to other people that we can fulfi ll only through states. If a state exists where I happen to be, and if it enforces a legitimate system of law, then I ought to comply with it since it is only through a state institution that I can fulfi ll my more basic duty to do justice to people with whom I interact. To flesh out this story, let us distinguish between three different sorts of reasons we might have to contribute to an institution: purely voluntary commitment, duties of charity or beneficence, and coercible duties of justice.

Why Does the State Matter Morally?

247

Sometimes I have a duty to contribute to an institution simply because I have voluntarily transacted with it, as I have voluntarily transacted with Princeton University by accepting a job there. I was not morally required to get involved with Princeton, but now that I have done so, I have acquired a slew of new duties to the institution, such as the duty to show up to class. We should note, however, that duties to voluntary associations like these are importantly optional: they depend on our personal history of transactions and consent, and we do no wrong in refusing them. A second reason we might have to contribute to an institution is if it helps us fulfi ll some preexisting but noncoercible duty we have to other people, like the duty of beneficence. Perhaps I ought to give to charity in order to promote others’ well-being, and perhaps contributing to one particular organization (say, the Salvation Army) is the best way for me to do that. But even if I have some general moral reason to transact with a charitable organization, and even if this particular institution is the one I ought to support, my duty to contribute to charity does not give the Salvation Army a right to show up at my house and requisition my contributions. I have some discretion about how to fulfi ll this duty, including discretion over which institutions to support. Finally, we may have a third kind of reason to contribute to an institution, if we have a general, coercible duty to support or comply with it. We take ourselves to be subject to some general, coercible duties, like the duty not to injure other people or to respect their property. We do not have the same discretion over how to perform these duties that we have in the case of voluntary transactions or beneficence. If you don’t perform your duty to respect my property, then I can make you do so by demanding your compliance and, if necessary, by calling the police. I can requisition your performance without any previous consent from you. One interesting question about the state is whether some of our general, coercible duties might be mediated by state institutions. If some of our duties were so mediated, then we might have a general, coercible duty to comply with and support the state’s system of law. Th is, in turn, might go some way toward explaining why the state matters morally. Let’s call this the institutional mediation hypothesis. I think that the institutional mediation hypothesis is true and that some of our general, coercible duties are in fact mediated by states. To explain why this is so, it will be helpful to look to Kant’s argument that justice depends on legitimate state authority. Kant’s account can be (briefly) summarized as follows:

248

On Cosmopolitan Alternatives

1. Each individual has a basic claim to external freedom, which requires that he not be forced to obey the will of another person; he must enjoy a secure sphere of self-determination within which others cannot interfere. The bounds of his sphere of self-determination are defined by his rights, including rights over his body and his property. 2. Each individual has a general, coercible duty to respect the external freedom of others. 3. Individuals cannot respect others’ external freedom if they interpret and enforce their own rights unilaterally. 4. The only way to respect others’ external freedom is to set up a state that can serve as an omnilateral arbiter and enforcer of everyone’s rights. 5. If a state that actually interprets and enforces everyone’s external freedom exists, then its subjects have an obligation to comply with it because that is the only way to fulfi ll their basic duty to respect others’ external freedom. If Kant is correct, then justice requires us to put an omnilateral arbiter and enforcer of rights, the state, into place. Our duties to do justice to others are mediated by this institution; we might say these duties “go through” the state. Why might justice be institutionally mediated in this way? One reason may be that individuals could not successfully respect one another’s rights in the state’s absence. Acting on their own, individuals would find themselves unable to do justice to one another. Simmons denies this view: “If we conceive of the natural duty of justice as simply requiring us to respect others’ rights, then this duty can plainly be discharged by individuals regardless of their social circumstances. Even in a relatively disorganized state of nature, it is perfectly possibly—even if sometimes difficult—for persons to do their duty, obeying the natural law requirement of respect for others’ rights.” Simmons conceives of the state of nature along Lockean lines, as one in which persons enjoy an equal moral right to freedom from harm and from interference by others, and also equal executive rights to enforce their moral rights and punish any wrongdoers. Because individuals are of equal moral worth, whatever general rights they possess must be shared equally since no one is naturally marked out for special authority or privileges. In order to do justice to others, in Simmons’s view, these individuals need only discharge their natural duties to respect others’ moral rights to freedom, to aid others in need, and to restrain and punish wrongdoers. They can do

Why Does the State Matter Morally?

249

these deeds simply by acting justly. Since—for Simmons—individuals can discharge these duties independently of institutional arrangements, there is no reason why their natural duties of justice require them to obey or support the state. We should note that Simmons’s critique rests on an understanding of our natural duties that is fundamentally interactional, as opposed to institutional. For an interactional theorist, our duty of justice is a moral duty that applies directly to our personal conduct and requires us to respect or promote others’ basic rights. Interactionalists share the broad view that our duties of justice regulate our personal behavior; our duties of justice are defined by moral reflection, not by authoritative institutions; and our duties of justice bind us to behave in the same manner to each human being, regardless of his or her institutional connection to us. I say that for Simmons our duties of justice are fundamentally interactional because he can concede that sometimes we might best discharge our natural duties through an institutional arrangement, as when we aid others by contributing to an organized charity. But the key point is that our duties are in no way defined by these institutions and could be carried out—though perhaps less efficiently— without any institutions. But is Simmons’s interactional view correct? Here, I sketch a Kantian argument for why we should see our duties of justice as fundamentally institutional, not interactional duties. In this view, duties of justice require support for reasonably just institutions, not simply moral personal behavior; are defined by political authority, not moral reflection; and bind us to behave in different ways toward different human beings, depending on the nature of their institutional connection to us. Again, I claim only that duties of justice for the Kantian are fundamentally institutional because Kant will concede that justice imposes personal moral requirements as well: for example, the moral requirement on individuals to cooperate in setting up and sustaining just institutions. But the key point is that for the Kantian, institutions play a role in defining our duties of justice to others and duties of justice could not be discharged without institutions, that is, simply through personal moral behavior. Kant thinks our duties of justice are institutionally mediated in large part because he thinks individuals will disagree about what justice requires and that these disagreements require legitimate authority for their resolution. Like Simmons, Kant thinks that as moral equals, all persons must possess the same general rights: if one person can claim the right to interpret and enforce justice, then so can all. But this means that when individuals

250

On Cosmopolitan Alternatives

disagree about justice, no one can possess the authority to impose a duty on his moral equals that these others cannot accept and endorse from their own perspective. If each person is an equally authoritative interpreter of justice, then whenever one person does not share another person’s belief about justice, his belief imposes no duties on the other person. To attempt to override another’s judgments about justice is to claim authority over that person, and the premise of moral equality dictates that no individual has this kind of authority. Instead, only a publicly authorized institution can claim the authority to impose a par ticu lar interpretation of what justice requires, while still preserving the moral equality and independence of those subject to it. To see why duties of justice might be institutional, consider a group of individuals who interact before the institution of a legal system. In this pre-legal situation, each person will certainly have important moral interests. Among their many moral interests would be the interest in, say, claiming certain goods as their property and the interest in not having undue risks imposed on them by the behavior of others. These and other moral interests would call for some respect and protection. But the bare existence of moral interests in the pre-state situation does not mean that individuals, acting privately and in an uncoordinated way, would be able to discharge their duties to respect one another’s rights. Instead, three problems would make it difficult for even well-meaning individuals to carry out these duties: the problems of indeterminacy, moral disagreement, and unilateralism. Consider first indeterminacy. Even if a group of individuals share a common understanding of their moral interests, what they should do together to protect them remains vastly underdetermined. There are three reasons for this underdetermination. First, there are many possible and different schemes of rules that would protect our important moral interests. Even if each person has an interest in personal property, for example, that does not by itself determine whether we ought to adopt a system of full liberal ownership or market socialism: this interest could be equally secured under either system. Second, our moral interests have many vague aspects. While it may be clear that driving with a blood-alcohol level of 0.2 poses unacceptable risks to others, is it better to set the limit at 0.08 or 0.07 or 0? The answer to this question may have an ineliminably decisionist element. Third, the protection that a body of rules might provide for these interests is in part a matter of how the entire scheme fits together. Given that we have already adopted a rule in one area, the best way to secure some additional moral interest may

Why Does the State Matter Morally?

251

be to adopt a rule that meshes in a certain way with our preexisting structures, even if we would not necessarily have chosen this rule ex ante (Jeremy Waldron and Thomas Christiano raise similar points). Owing to indeterminacy, even individuals who are in full agreement as to what their basic moral interests are may not be able to translate this agreement into a consensus on what particular rights they have. Without such a consensus, it would be hard for them to bring about justice simply through their personal interactions. Our individuals would also face a second and even more serious problem: that of moral disagreement. Often individuals will not share a convergent understanding of their moral interests, so that each person’s good-faith attempt to respect others’ rights may not lead him to respect the precise interests other persons take to be morally significant. In circumstances of moral disagreement, it is difficult for individuals to recognize one another as faithfully attempting to do justice in their personal behavior. Many of us would agree, for instance, that individuals have an important interest in medical care. But not all of us so agree: Christian Scientists think that poor health is a sign of erroneous spiritual beliefs and must be corrected through faith healing. In the pre-state situation, these Christian Scientists might not recognize the interest in health that others find extremely important. If they do not recognize this interest, then their attempts to respect the rights that, by their lights, other individuals have will not strike these others as an effort to respect their rights. These divergent moral understandings will lead to perceived injuries and conflict. Since individuals disagree on what their moral interests are, whether these interests should be protected by coordinated rules, and which is the best of the many possible schemes that could protect these interests, even moral and law-abiding individuals may have a great deal of trouble coordinating their behavior so as to effectively respect each other’s rights in the absence of a political authority. They will have trouble respecting rights in a coordinated way because, with the best of intentions, they can still reasonably disagree over what rules ought to guide their attempts to do justice to others. Because individuals will reasonably disagree, in attempting to do justice to others, they must not only ask themselves a substantive question about justice (for example, what rights and duties do we all have on the best understanding of justice)? Instead, they face an equally important procedural question of justice: namely, when we reasonably disagree about our rights and duties, how are we to do justice to one another? Kant’s argument is that a group of individuals cannot do procedural justice to one another by acting

252

On Cosmopolitan Alternatives

unilaterally, that is, by demanding that others conform to their own view of what justice requires and by privately enforcing this demand. Instead, they must act through a state. In cases of disagreement, justice must be done through an authoritative institution. This third problem of unilateralism builds on the other two and occurs in connection with individuals’ attempts to privately enforce their rights in circumstances of indeterminacy and disagreement. Even when you privately enforce what you take to be the correct scheme of rules, Kant’s claim is that you still wrong other people by doing so unilaterally. In effect, you are claiming authority over others that as a moral equal, you do not have. These other people are equally authoritative interpreters of justice, bound only by their own good-faith view of what justice requires, which means they will rightly perceive even your well-meaning attempts to enforce justice as an arbitrary assumption of power over them, not as something that places them under a genuine obligation. In imposing a view of justice for which the other person cannot see adequate justification, from his perspective, one simply subjugates him to one’s own will. Unless one can give him a reason to accept the obligation you seek to impose on him, your private enforcement of this obligation looks like arbitrary coercion, inconsistent with his independence. Consider further what might happen if our group generally enforced their private views of justice in such an uncoordinated manner. Rather than sharing one univocal set of rules about rights, these people conduct their common life together in accordance with a whole slew of divergent private interpretations. Would these individuals actually fulfi ll their fundamental duty to respect one another’s external freedom? Imagine that you were one of the people in this society. Would you enjoy a secure sphere of external freedom? No: other people would constantly be attempting to apply force to you in accordance with views that you deny and dispute. The bounds of your sphere of self-determination would depend on these others’ private beliefs, which are conflicting and seem to you arbitrary. In these circumstances, you can expect your external freedom to become very precarious indeed. Meeting someone for the first time, you would have no settled expectation about what they take your rights to be. Some people, under their preferred scheme of rules, might recognize you as having a right to what you take to be your house. But other people, under their preferred scheme of rules, might not, and might indeed try to forcefully dispossess you of what, by their lights, is not really your property. How could you securely dispose of your own body and property in this kind of world? And if you don’t securely dispose

Why Does the State Matter Morally?

253

of these things, how can you exercise even a minimal degree of independent self-determination? Kant’s argument is that as a group, these individuals fail to fulfi ll an important procedural duty of justice. They fail to commit themselves to a common, public understanding of their rights and duties that can be enforced in a unitary way consistent with their reciprocal equality. Though human beings may do “one another no wrong” by pursuing justice in this uncoordinated and conflictual manner, in general “they do wrong in the highest degree by wanting to be and to remain in a condition that is not rightful.” We have a responsibility of justice to commit ourselves to one interpretation of external freedom that is collectively “ours,” to designate it as the one on which we will together coordinate. Unilateralism is “wrong in the highest degree” because it fails to recognize that we cannot do justice to others without an omnilateral arbiter. In circumstances of disagreement, we cannot do justice through our personal behavior. Because no one’s external freedom could be secure in a world of indeterminacy, moral disagreement, and unilateralism, our natural duty to respect others’ freedom gives us a joint responsibility to set up a state that can promulgate one public interpretation of our rights and duties to one another. This duty to construct and comply with an authority is not a different duty from our more basic natural duty to do justice to others; it is simply a necessary precondition for our acting together to fulfill that duty. As our thought experiment just showed, a world without coordination on what justice requires is a world in which no one’s external freedom is secure. Because individuals who disagree about justice have no way to publicly establish what rights they are all committed to respecting, to decide which of many conventional sets of rules to protect those rights they collectively wish to adopt, and to enforce justice without wrongly claiming authority over their moral equals, they are unable to do justice to one another. So the duty to do justice to others itself gives individuals reason to coordinate their interpretations and to set up one common and univocal set of rules. With these reflections in place, let us return to Simmons’s initial objection to natural duty theories. Why, he asked, does our natural duty of justice require us to comply with the state? Why doesn’t it simply require us to do justice ourselves, or to support a just NGO or business or whatever? We now have the outlines of an answer to this basic question. Establishing justice requires coordinating ourselves around a unitary and common interpretation of our rights and duties. Collective action to support public authority is a crucial precondition for justice’s realization. Therefore, if one wishes to do

254

On Cosmopolitan Alternatives

justice to others, it is not sufficient to simply act on the basis of one’s private beliefs or to support the institution of one’s choice, like a club, business, or NGO. In order to do justice to others, one must abide by the system of common rules that defines the rights and duties of those with whom one shares a territory and interacts. That means supporting the state.

The Limits of Legitimate Authority There are also limits to our obligation to comply with the state on a natural duty of justice view. These limits derive from the very ground of that obligation in the first place: the duty to respect the external freedom of others. No natural duty of justice can give us a reason to comply with a scheme of law that clearly and obviously fails to aim at the external freedom of its subjects. Such a system of law does not enable us to do justice to others. We need an authority to resolve our practical disagreements about justice, but we expect this authority to address itself to the question of what justice requires and not to some other, irrelevant question: for example, what would best promote my private advantage? An answer to that irrelevant question would have no claim to practical authority over us. Surely there is an important substantive distinction between the directives of an authority seeking to guarantee the external freedom of its subjects and the directives of an authority that is seeking to do something else, like promote its own private advantage. There is some essential minimal content, in other words, to what could reasonably count as a state that was aiming to interpret justice. If the system of law enacts at least this minimal justice-content, then it gives subjects moral reasons for their compliance since it secures a degree of external freedom for each member and everyone has a natural duty to cooperate in sustaining a collective view of external freedom. But if the system of law fails to aim at justice—if, for example, it is simply a means to secure the private interests of the ruling elite—then its subjects have no duty to sustain it and may instead have a duty to resist or overthrow it. How are we to tell if the state to which we are subject is actually aiming at the interpretation of its subjects’ external freedom? In my view, we must demand that a legitimate state give at least minimal consideration to each member’s interests by delineating a set of basic rights as a standard for state legitimacy. Violation of these basic rights voids the state’s status as a legitimate authority for its subjects. Kant stipulates that any legitimate constitution

Why Does the State Matter Morally?

255

must secure three such minimal interests: the freedom of each member of society as a human being, his equality with all others as a subject, and his independence as a citizen. First, the criterion of freedom requires that any legitimate state must grant a sphere of private freedom to its citizens. The principle behind civil freedom is that “each may seek his happiness in the way that seems good to him, provided he does not infringe on the freedom of others to strive for a like end.” A constitution that protects freedom requires the provision of a scheme of private liberties to all citizens, which protects their interests in the formation and pursuit of a personal conception of happiness. The precise liberties necessary to guarantee civil freedom will vary over time and with the circumstances of a particular society, but it is reasonable to believe they will include claims to personal inviolability and security, as well as freedom of conscience, private property, freedom of thought and expression, freedom of association, and freedom of movement. These liberties are enshrined in all liberal constitutions and have historically been justified on private autonomy grounds. The criterion of equality requires that each person be treated as a moral equal in the eyes of the state. Minimally, this requires at least that each subject be able to claim equal treatment before the law. This rules out privileged classes of citizens, including a hereditary aristocracy, as well as any system that would treat humans as unequal legal persons, such as slavery and serfdom. It also requires at least formal equality of opportunity: careers and official positions in the state must be open to all, and each subject must be able to attain any position her luck, effort, and talents will allow her to achieve. Finally, the ideal of equality suggests important limits on the disparities of wealth that can be tolerated within the state. It is reasonable to think that a clear minimal requirement on economic justice is the guarantee of each citizen’s subsistence. No constitution that jeopardizes a citizen’s physical survival is one he has reason to accept. Thus, a state that secures constitutional equality must guarantee at least equal treatment before the law, formally equal opportunity, and basic subsistence for each subject. Finally, the criterion of citizen independence requires that citizens be consulted in the law-making process, that they be authors of the law they are asked to obey. I interpret this to mean that a legitimate state must allow its subjects some input into its decisions. Conditions may not always favor the establishment of democracy since democratic voting may result in less secure protections of our freedom and equality rights. Even under such unfavorable conditions, however, independence still requires some consideration.

256

On Cosmopolitan Alternatives

At the very least, it requires rights of free speech and free political association, as well as rights for ordinary citizens to contest political decisions and receive some public justification for those decisions. And under more favorable conditions, the state must recognize independence by granting its citizens equal democratic rights. When a political procedure privileges certain classes of people over others, it makes an invidious distinction among members of the state. As long as democratic procedures can be expected to guarantee civil freedom and equality, then they are an important condition for state authority because democracy is a unique way to affirm citizens’ equality amid disagreement about justice. Successful democratic institutions, however, are dependent on a supportive political culture and are often the product of a very long process of political evolution. For that reason, nondemocratic regimes that protect other basic rights and institute the rule of law, provide meaningful nondemocratic forms of political consultation and contestation, and are reformist regimes—that is, they aim at reforming the political culture in the long term in a manner supportive of democracy—can be provisionally legitimate. If its scheme of law meets these basic conditions, then our natural duty of justice transfers to the state. Since we have a coercible natural duty independent of our consent to respect the external freedom of others, we will also have a coercible natural duty independent of our consent to comply with the laws that publicly define the bounds of this freedom. This is one very important reason why the state matters morally. Since our duties to respect others’ rights “go through” the state in this way, we can have duties of justice to the state that we could never have to a voluntary association like a club or an NGO. The main idea is that we could never establish a condition of right without the state. The state is therefore an indispensable means to fulfi lling a moral duty by which we are already bound, namely, the duty to respect others’ rights. If all this is correct, the natural duty of justice can provide some support for the first intuitive civic duty with which we began the chapter: the duty to comply with the law. What are the implications of a natural duty theory for our duties to obey the law? First, and most basically, where one’s state meets the legitimacy criteria outlined above, one’s natural duty gives one an obligation not to use private coercion against one’s fellow citizens or to undermine the state by force. To do that is to do wrong in the highest degree. Second, one’s natural duty also gives one a duty to obey the just laws laid down by a legitimate state, as well as those laws that while not ideally just, are at least pursuing a just objective (by one’s own lights). For an example of

Why Does the State Matter Morally?

257

the latter, consider someone who thinks that basic health care for all citizens is a demand of justice and that the most just scheme is a single-payer system. On the natural duty view, she should still contribute her tax dollars to the recently passed U.S. health-care plan, even though it is not ideally just by her lights, simply because doing justice to others requires settling on and abiding by a community view of what justice requires. Third, I think natural duty can also impose a demand to obey even some laws that one considers unjust, especially when other people’s legal entitlements are involved, as long as these laws do not violate core aspects of external freedom. Consider intellectual property or copyright laws. In some cases, I think these laws are unjust (though not too unjust) because they stifle free expression and creative endeavor. Nevertheless, I think I am obliged to respect them—unless I am committing a public act of protest or civil disobedience—because of the important expectations of the rightholders in having others coordinated around a common view of their rights. I may simultaneously have a duty to protest against laws I find unjust, working to establish a substantively better community view by convincing others to adopt it. Finally, I think we have no duty at all to obey laws that violate the core elements of the right to external freedom outlined above. Our duty to obey rests on our more basic reason to recognize and respect a common view of external freedom; it is not a reason to collaborate in the oppression or domination of others. Where the law cannot reasonably be interpreted as defining external freedom, no one has a duty to collaborate in sustaining it. All of the above reasons to obey the law rest on a strong coordination reason to do justice to others through a unitary legal institution. Though this coordination reason can be trumped by a law’s substantive injustice, it is still a very strong reason and may outweigh substantive injustices in many cases. Notice that the natural duty to do justice to others can also explain why one has the duty to obey the laws of countries to which one travels. In this sense, there is something correct about Simmons’s critique: it is not as if the natural duty—even when interpreted along institutional lines—binds me solely to my own state. No: it binds me to any state that is performing the authoritative specification of rights and duties that I need to do justice to others. So, if vacationing in Brazil, I ought to obey Brazil’s zero-tolerance law about drunk driving, not U.S. law, because failing to respect Brazil’s common and unitary view of what justice requires would mean that I am committing the wrong of unilateralism. If our duty to respect the rights of others is to respect their rights as defined by a legitimate state, then one ought to comply with the laws of whatever state wields authority over the

258

On Cosmopolitan Alternatives

territory one is in. When visiting Brazil, then, one should comply with Brazilian law not because one is specially biased in favor of it when compared with U.S. law, but because the Brazilian state is the par ticular authority that determines what one’s natural duty of justice requires on this portion of the earth, by laying down public rules about rights.

Civic Duties and Association If the argument for the institutionally mediated character of our natural duty of justice that I just outlined is sound, then it provides some support for the notion that the state matters morally. The state matters morally, in part, because it performs a valuable function that we need performed if we are to do justice to others: it allows us to arrive at a common public specification of our rights and duties to one another. But while this explains why we ought to obey the laws of the state in which we find ourselves, the account is too thin to justify all the intuitive civic duties with which we began. For example, it does not explain why the wealthy U.S. taxpayer would do any wrong in domiciling himself, for tax purposes, in the Cayman Islands. After all, he would still fulfi ll his natural duty: he uses his tax dollars to support a reasonably just state, just not the particular one where he happens to have spent his life. And he is not breaking any laws. The argument also does not show why it might be wrong to annex a people that has shared separate state institutions in the past. If the authority of the state resides wholly in its ability to perform important functions (by specifying our rights and duties), then surely any legitimate state could perform these functions equally well. There would be no reason to insist on the special significance of our own. If the United States annexed Haiti and ruled effectively in accordance with the criteria outlined above—respecting basic freedom and equality rights, and granting the Haitians rights of democratic participation—then, it seems, using the natural duty theory outlined above, it might gain a legitimate claim to authority over the Haitians. These additional intuitions all invoke the idea that citizens share some special connection to each other that goes beyond the duty to obey the law. If we are to explain these additional intuitions, we will have to supplement the natural duty account in some way. Notice that all these questions speak to the second part of Simmons’s particularity objection. Can the natural duty of justice ground some special connection with our own state in particu lar rather than with all just states, or perhaps the most just state in the

Why Does the State Matter Morally?

259

world? Does the U.S. taxpayer have a reason to support his needy fellow citizens rather than the citizens of another state, and do the Haitians have reason to maintain separate state institutions together with their particular fellow Haitians? There may not be a moral basis for these additional intuitions. But I think it is worth trying to give some grounding for these views since they are so widely shared. In order to do so, we will have to invoke an additional value that interacts with our natural duty of justice. Once states come to exist, they may change the landscape in ways that give rise to new moral duties. A candidate story I think worth exploring is whether citizens’ history of sharing a state together gives rise to new associative obligations among them. We should note that the fact we have a natural duty to cooperate together in a state, by itself, does not tell us exactly what the bounds of that state should be. For all I have said so far, we could have a natural duty to support a world state, if there was one. There will therefore be a certain degree of contingency in who ends up together under the same organized political institutions. Waldron has argued for a Kantian principle of proximity, which holds that those who “live together unavoidably side by side” and are likely to come into conflict over property and other resource rights have a moral obligation to construct a state together. Perhaps we are most likely to have frequent disputes about justice with those who are spatially close to us, and it is after all these disputes that we need a state to solve. Waldron’s account has the benefit of focusing our attention on the territorial dimension of state authority. External freedom can only be securely guaranteed if everyone who interacts with one another in a continuous space is subject to a single, clear set of rules. While I am sympathetic to Waldron’s view, the question I really want to focus on is whether once states are established and however that may have occurred, they bring in their train morally important changes, including the formation of new associative bonds among their citizens. My view is that over time an initially unconnected group of citizens can become “a people” by cooperating together in shared state institutions. Indeed, following Kant, we might say that a group that shares a state eventually becomes a “moral person.” How might this relationship of peoplehood get established? What sorts of occurrences could help form a previously unconnected group into “a people”? I suggest we look to two shared activities that peoples characteristically undertake together: sustaining the state and producing law. First, people sustain the institutions that define and enforce their rights. It is their cooperative

260

On Cosmopolitan Alternatives

activity, by obeying the law and paying taxes, that creates these institutions. Laws are not just enforced through directly coercive acts on the part of the authorities; they depend much more pervasively on large-scale patterns of behavior on the part of the people, who orient their actions to these laws. I have in mind the fact that compatriots share in a practice of political authority that has what H. L. A. Hart called “an internal aspect.” They recognize certain rules in common and play by these rules in their interactions with one another. By paying taxes, the people also uphold the institutions that enforce their rights against those who refuse to respect them. The fact that these people participate together in a rule-governed social practice gives them a special relation to their fellow participants that they don’t have to those outside the practice. Additionally, when their state is a democracy, the people do not merely sustain an apparatus of legislation and coercion; they also create the law and give it a par ticular form. They have a voice in determining the par ticular scheme of rights protected by their state. Consider how different peoples with equally legitimate constitutional traditions—while all protecting core liberal values—often produce schemes of law that differ a great deal in their particularities. By exercising their political rights—voting, debating political issues, associating in political parties and interest groups, and taking part in social movements—democratic peoples produce the laws they live under and give them a shape that reflects their common life together. Though peoples share political bonds even when their history is undemocratic, in a democracy, these bonds are especially robust. The role of the people’s shared activity in sustaining the state and—in a democracy—in producing law helps explain why over time political cooperation can constitute a group of citizens into a collective with important ties binding them together. A people then is just a group with a history of political activity together in a shared state. I think sharing in this historical pattern of activity can give the members of the people a special reason to support and comply with their own state. Whereas my natural duty, by itself, does not connect me to any particular group, my history as part of a people does connect me to the fellow participants in the various forms of political cooperation outlined above. Because individuals who have shared a state together in the past are heir to a temporally extended pattern of political cooperation, they differ from a merely occasional set of persons with an as-yet-unparticularized natural duty. Such a merely occasional group might have existed at the moment before state formation, the moment with which Waldron is concerned. This imaginary group would have had no special reason to set up one state

Why Does the State Matter Morally?

261

rather than two, or eight, to perform the functions of legitimate authority that they needed performed. Perhaps they would have had to appeal to salience, natural boundaries, social ties, or considerations of administrative effectiveness to figure out where the states they had a natural duty to construct should begin and end, and who should be a part of which ones. But individuals who have shared a state in the past—who are already part of a people—are not like this imaginary group. They do not have to appeal to salience, social ties, or considerations of administrative effectiveness to figure out which state they might have a natural duty to contribute to. The difference is that they are already part of a historical practice of political authority. The mere fact of their political history, I think, gives participants reasons to do their part in sustaining their particular state. The difference between my state and another equally just state isn’t that I am especially biased in favor of it, feel especially patriotic about it, or share its national culture (necessarily), but simply that I have been part of this practice, which gives me special reason to value and contribute to it. This fact is enough to particularize my natural duty to a given scheme of political cooperation and gives me reason to do my part here rather than there. And I think this fact is sufficient to make my concern to do my part in this par ticu lar state not an act of arbitrary favoritism but rather a rational response to a valuable relationship in which I have been involved. It would be purely arbitrary if, natural duty in mind, I was suddenly seized by a fascination with, say, Uruguay— feeling myself duty-bound to send special contributions to its tax authorities or buying full-page ads in its newspapers to influence its next election. “Why Uruguay rather than Paraguay?” one might feel like asking me then. But surely one wouldn’t feel the same temptation to ask me “Why the United States rather than Uruguay?” As an American, I have a history with the United States. With these reflections in hand, let us turn to consider whether we can now better explain some of the intuitive civic duties with which we began. On this view, should our wealthy taxpayer hesitate to take her accountant’s advice? Yes, I think she should. She has a special reason to contribute her taxes to the United States rather than to the Cayman Islands because she has a history of participation in this particular state. The Cayman Islands may well be a just state, but it is not the one with which she has a personal history. The existence of that history is a reason for certain responses to the institution on her part, namely, to value it and to contribute to sustaining it. These agent-relative reasons that the taxpayer has for concern with her own state

262

On Cosmopolitan Alternatives

and her own fellow citizens go beyond the reasons that anyone would have for supporting the United States—though these more impersonal reasons of support also exist—because they reflect her personal history of involvement with it. By domiciling herself in the Cayman Islands, she fails to acknowledge the reasons her personal history of involvement in a political relationship creates. Can these reflections also explain why the Haitians have a claim to continue their separate institutions, even when the functions their state performs could be performed as well or better by another state, namely, the United States? In my view, the Haitian claim to preserve their separate institutions is grounded in their relational reasons for valuing their state, which are based on their history with it. These reasons go beyond the functions (like specifying rights and duties, or providing public goods) their state performs. Another reasonably just state could perform these functions just as well as the Haitian state could, and perhaps better. But to allow that another reasonably just state could simply seize authority over the Haitians would ignore the relational value—for the Haitians—that such a seizure would destroy. The existence of their political history is a reason for certain responses on the part of insiders—to sustain and value their association— and of outsiders—to refrain from dissolving it. Respecting a people’s self-determination is a way of honoring this relationship and the reasons it gives to those involved. In my view, we can ground civic duties to our own state and our compatriots that go beyond our natural duty to comply with the laws of the state in which we find ourselves (when it is legitimate) and to support the construction of legitimate states elsewhere. These additional duties are based on a personal history of involvement with a particular state, which give rise to a valuable relationship with its institutions and with our fellow participants in those institutions. This history gives us additional agent-relative reasons to support and contribute to our own state, and these reasons interact with our natural duty of justice to particularize it in ways that go beyond the mere duty to comply with law and the duty not to undermine the state, which even tourists and those otherwise unconnected with these institutions might have. One question we may wish to ask is whether this account of particularity implies that people are somehow locked in forever to supporting the state with which they presently have a history. After all, people emigrate and establish citizenship in other countries all the time. How is the emigrant different from the person who happens to be arbitrarily fascinated with Uruguay

Why Does the State Matter Morally?

263

or the taxpayer who is resident in the Cayman Islands for tax purposes only? On the view I outlined above, we should be willing to say that these latter two are neglecting an important political duty. So are we logically forced to say the same of the emigrant? One major difference between these cases is that the emigrant (say, to Uruguay) ceases participating in the patterns of political cooperation that ground her relational duties. From now on, the emigrant will be participating in Uruguay’s practice of political authority, orienting her behavior to its laws, participating in its civil society, and paying taxes to its revenue ser vice. But it is just these kinds of shared activities, when repeated with sufficient density, that make up the personal history that is supposed to particularize our natural duty. Therefore, the emigrant to Uruguay will gradually acquire a new set of duties to Uruguayan institutions and her Uruguayan compatriots. Likewise, as the sorts of activities that made up her history in the United States wane and fade, she will gradually shed her reason to keep contributing to U.S. institutions in ways that go beyond the natural duties anyone might have, like the duty to comply with law while in the territory and not to undermine the functioning of U.S. institutions while abroad. We should note that our reasons for valuing and contributing to many other kinds of relationships wax and wane in this manner. While I may once have had reason to share my living space and leisure time with my college boyfriend, I do not have reason to do those things now since I am married to someone else and our lives have taken different paths for the last twenty years. So while a shared history can provide special reasons to value a particular relationship, those reasons can also dissipate when a history is broken off. The difference between the person who is nonresident for tax purposes in the Cayman Islands and the person who really lives there is just that the former does not cease to participate in the shared activities that give him reason to value and contribute to the relationship. Instead, he continues to share in the relationship without responding to or acknowledging the reasons that it creates for him.

Conclusion To sum up, I have offered a three-part answer to the question of why the state matters morally. First, we have a fundamentally cosmopolitan reason to construct and comply with states, a reason that is based on our natural duty of justice to others. Second, since the duty of justice itself is institutionally

264

On Cosmopolitan Alternatives

mediated, this fact alone will give us some reason to behave differently toward those who share a state with us and those who don’t. With regard to those who share our state, the natural duty requires us to perform our duties to them as defined by the state. With regard to those who do not share our state, our natural duty requires us to support the construction and effective operation of their just institutions, as well as working toward the establishment of just international institutions to regulate the behavior of states toward one another. Third, once state institutions are in place, they may give rise to new agent-relative reasons for us based on our personal history of involvement with them. These reasons will give participants in a particular institution reason to do more to support their state and their fellow participants than they do for equally just institutions elsewhere.

Contributors

Michael Blake is Associate Professor of Philosophy and Public Affairs at the University of Washington, where he is Director of the Program on Values in Society. He holds a joint appointment with the Daniel J. Evans School of Public Affairs. His recent publications include “Coercion and Egalitarian Justice” in The Monist, and “Global Distributive Justice: Why Political Philosophy Needs Political Science,” in the Annual Review of Political Science. Pheng Cheah is Professor of Rhetoric at the University of California, Berkeley. His publications include Derrida and the Time of the Political (edited with Suzanne Guerlac) (2009), Inhuman Conditions: On Cosmopolitanism and Human Rights (2006), Spectral Nationality: Passages of Freedom from Kant to Postcolonial Literatures of Liberation (2003), and Cosmopolitics: Thinking and Feeling Beyond the Nation (edited with Bruce Robbins) (1998). Arjun Chowdhury is Assistant Professor of Political Science at the University of British Columbia. He has authored and co-authored scholarly articles published or forthcoming in the journals Security Dialogue, Security Studies, European Journal of International Relations, International Political Sociology, Foreign Affairs, and borderlands e-journal. Robert E. Goodin is Distinguished Professor of Philosophy at Australia National University and Professor of Government at the University of Essex. His books include On Settling (2012); Innovating Democracy: Democratic Theory and Practice After the Deliberative Turn (2008); Discretionary Time: A New Measure of Freedom, with J. M. Rice, A. Parpo, and L. Eriksson (2008); Social Welfare as an Individual Responsibility: For and Against, with

266

Contributors

D. Schmidtz (1998); Motivating Political Morality (1992); and Protecting the Vulnerable (1985). Nasser Hussain is Associate Professor of Law, Jurisprudence and Social Thought at Amherst College. He holds a joint appointment with Black Studies. His book, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Law, Meaning and Violence), was published in 2003. David Miller is Professor of Political Theory at the University of Oxford, and an Official Fellow of Nuffield College. His books include National Responsibility and Global Justice (2007), Political Philosophy: A Very Short Introduction (2003), Citizenship and National Identity (2000), Principles of Social Justice (1999) and On Nationality (1995). Elizabeth A. Povinelli is Professor of Anthropology and Gender Studies at Columbia University. Her publications include Economies of Abandonment: Social Belonging and Endurance in Late Liberalism (2011) and The Empire of Love: Toward a Theory of Intimacy, Genealogy, and Carnality (2006). Jeremy Rabkin is Professor of Law at George Mason University School of Law. His books include: Law Without Nations? (2005), The Case for Sovereignty (2004), Why Sovereignty Matters (1998), and Judicial Compulsions: How Public Law Distorts Public Policy (1989). Peter H. Schuck is the Simeon E. Baldwin Professor Emeritus of Law at Yale Law School where he has held the chair since 1984. His books include Understanding America: The Anatomy of an Exceptional Nation (with James Q. Wilson); Targeting in Social Programs: Avoiding Bad Bets, Removing Bad Apples (with Richard J. Zeckhauser); Citizens, Strangers, and In-Betweens: Essays on Immigration and Citizenship; Foundations of Administrative Law; Diversity in America: Keeping Government at a Safe Distance; The Limits of Law: Essays on Democratic Governance; Citizenship Without Consent: Illegal Aliens in the American Polity (with Rogers M. Smith); and Suing Government: Citizen Remedies for Official Wrongs. Ayelet Shachar is Canada Research Chair in Citizenship and Multiculturalism, and Professor of Law, Political Science and Global Affairs at the University of Toronto. She has published and lectured widely on citizenship theory, immigration law, highly skilled migrants, as well as multiculturalism and

Contributors

267

feminism, women’s rights and religious diversity. She is the author of Multicultural Jurisdictions: Cultural Differences and Women’s Rights, The Birthright Lottery: Citizenship and Global Inequality, and numerous articles in leading legal and political philosophy journals. Anna Stilz is Professor of Political Science at Princeton University. She is the author of Liberal Loyalty: Freedom, Obligation, and the State (2009). Sidney Tarrow is the Emeritus Maxwell M. Upson Professor of Government at Cornell University. He is the author of many books and monographs, including, Contentious Europeans, Dynamics of Contention (with D. McAdam and C. Tilly), and Silence and Voice in the Study of Contentious Politics (with R. Aminzade et al.), and Strangers at the Gates: States and Movements in Contentious Politics. Anna Tsing is Professor of Anthropology at the University of California, Santa Cruz. Her recent publications include Friction: An Ethnography of Global Connection (2005); Words in Motion (edited with C. Gluck) (2009); and Nature in the Global South: Environmental Projects in South and Southeast Asia (edited with P. Greenough) (2003).

This page intentionally left blank

Notes

Introduction 1. Leo Gross, “The Peace of Westphalia, 1648–1948,” American Journal of International Law 42:1 (1948): 20, 34, 37. 2. Ibid., 41. 3. John Torpey, The Invention of the Passport: Surveillance, Citizenship, and the State (New York: Cambridge University Press, 1999), 93–121. 4. Yasemin Nuhoglu Soysal, The Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago: University of Chicago Press, 1995), 1. See also, e.g., David Jacobson, Rights Across Borders: Immigration and the Decline of Citizenship (Baltimore: Johns Hopkins University Press, 1996). 5. See, e.g., David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Stanford, Calif.: Stanford University Press, 1995); Daniele Archibugi and David Held, eds., Cosmopolitan Democracy: An Agenda for a New World Order (Boston: Polity, 1995). 6. Peter H. Schuck, “Membership in the Liberal Polity: The Devaluation of American Citizenship,” Georgetown Immigration Law Journal 3 (1989): 1–18. 7. Peter H. Schuck, “The Re-evaluation of American Citizenship,” in NationState: Immigration in Western Europe and the United States, ed. Christian Joppke, 191–230 (New York: Oxford University Press, 1998). 8. Linda Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership (Princeton, N.J.: Princeton University Press, 2006), 124–26. 9. Elizabeth F. Cohen, Semi-Citizenship in Democratic Politics (New York: Cambridge University Press, 2009), 126–27. 10. David Miller, On Nationality (Oxford: Oxford University Press, 1995); Jeremy Rabkin, Law Without Nations? (Princeton, N.J.: Princeton University Press, 2005), The Case for Sovereignty (Washington, D.C.: AEI Press, 2004), 11. Aihwa Ong, Flexible Citizenship: The Cultural Logics of Transnationality (Durham, N.C.: Duke University Press, 1999), 19.

270

Notes to Pages 15–20

Chapter 1. Sovereignty Out of Joint I would like to thank Rogers Smith and the Penn DCC Program for creating and sustaining a wonderful intellectual environment, and participants in the Faculty Seminar for helpful comments. 1. As Anna Tsing puts it, even the strongest states have only ever enjoyed “partial” sovereignty (“Subcontracting Sovereignty,” this volume). 2. Karl Marx, Capital, vol. 1 (New York: International, 1967), 80. 3. Edmund Husserl, The Crisis of European Sciences and Transcendental Phenomenology, trans. David Carr (Evanston, Ill.: Northwestern University Press, 1970), 299. 4. Charles Tilly, “Reflections on the History of European State-Making,” in The Formation of National States in Western Europe, ed. Charles Tilly (Princeton, N.J.: Princeton University Press, 1975), 38. 5. Anne-Marie Slaughter, A New World Order (Princeton, N.J.: Princeton University Press, 2004); Robert Goodin, “World Government Is Here!” this volume. 6. Arjun Appadurai, “Deep Democracy: Urban Governmentality and the Horizon of Politics,” Public Culture 14:1 (2002): 21– 47. 7. Wendy Brown, “Sovereignty and the Return of the Repressed,” in The New Pluralism: William Connolly and the Contemporary Global Condition, ed. David Campbell and Morton Schoolman, 251–52 (Durham, N.C.: Duke University Press, 2008); Michael Hardt and Antonio Negri, Empire (Cambridge, Mass.: Harvard University Press, 2000). 8. Michael Mandelbaum, The Case for Goliath: How America Acts as the World’s Government in the 21st Century (New York: Public Affairs, 2005). 9. David Miller, “The Idea of Global Citizenship,” this volume. 10. Michael Blake, “Immigration, Causality, and Complicity,” this volume; Anna Stiltz, “Why Does the State Matter Morally?” this volume. 11. Appadurai, “Deep Democracy,” 24. 12. John Arquilla and David Ronfeldt, The Advent of Netwar (Santa Monica, Calif.: RAND, 1996), 4– 6. 13. In Foreign Policy’s annual “Failed States Index,” for example, there are almost three times as many states seen to be at risk for failure (38) than are seen to be stable (13). Foreign Policy, “Failed States Index 2011,” http://www.foreignpolicy.com /failedstates. 14. State building is colloquially, but inaccurately, referred to as “nation building.” I use the former term. 15. Husserl, Crisis, 299. 16. Michel-Rolph Trouillot, Silencing the Past: Power and the Production of History (Boston: Beacon, 1995), 22–24, 29. 17. Charles Tilly, Coercion, Capital, and European States, AD 990–1992 (Oxford: Blackwell, 1992). 18. Linda Colley, Britons: Forging the Nation, 1707–1837 (New Haven, Conn.: Yale University Press, 1992). 19. Tilly, Coercion, 104. 20. This assumption is reasonable, given that observers in the nineteenth century understood the European state to be an imperial one, including separate and unequal populations in the colonies. James Mill, for example, termed Indian history

Notes to Pages 20–23

271

as “an entire, and highly interesting, portion of the British history” (cited in Ranajit Guha, Dominance Without Hegemony: History and Power in Colonial India [Cambridge, Mass.: Harvard University Press, 1997], 79). Indicating how much the idea of sovereign statehood coincided with imperial expansion, let us recall that in gaining independence, Haiti named itself the “Empire of Haiti” and invaded its neighbor, now the Dominican Republic, in 1801 (before independence) and 1822. 21. The term state failure event is the coinage of the Political Instability Task Force, referring to one of the following: ethnic war, revolutionary war, adverse regime change (e.g., a coup), genocide. 22. Neta Crawford, Argument and Change in World Politics: Ethics, Decolonization, and Humanitarian Intervention (Cambridge: Cambridge University Press, 2002); Daniel Philpott, Revolutions in Sovereignty: How Ideas Shaped Modern International Relations (Princeton, N.J.: Princeton University Press, 2001). 23. There are accounts that attribute the demise of empire to voluntary decisions on the part of the imperial powers to give up their colonies. The implication is twofold: first, there is nothing inherently unstable about empire; second, resistance in the colonized world was not a significant force. See, for example, Niall Ferguson, Empire: The Rise and Demise of the British World Order and the Lessons for Global Power (New York: Basic, 2003). 24. Raymond Aron, Peace and War: A Theory of International Relations (New York: Doubleday, 1966), 373. 25. Robert Jervis, The Meaning of the Nuclear Revolution: Statecraft and the Prospect of Armageddon (Ithaca, N.Y.: Cornell University Press, 1989). 26. This trend has been decried by Edward Luttwak, who has called for war to be “given a chance” in the sense that if wars run their course, a more stable order may result; “Give War a Chance,” Foreign Affairs 78:4 (1999): 36– 44. 27. John Herz, The Nation-State and the Crisis of World Politics (New York: David McKay, 1976); Basil Liddell Hart, The Revolution in Warfare (New Haven, Conn.: Yale University Press, 1946). 28. McGeorge Bundy, Danger and Survival: Choices About the Bomb in the First Fifty Years (New York: Random House, 1988), 161–76. 29. Morton Kaplan, “United States Foreign Policy in a Revolutionary Age,” in The Revolution in World Politics, ed. Morton Kaplan (Princeton, N.J.: Princeton University Press, 1962), 431. 30. Hans Morgenthau, “The Four Paradoxes of Nuclear Strategy,” American Political Science Review 58:1 (1964): 23–35. 31. Quoted in Marc Trachtenberg, “A Wasting Asset: American Strategy and the Shift ing Nuclear Balance, 1949–1954,” International Security 13:3 (1988–89): 5– 49, 37. 32. Henry Kissinger, Nuclear Weapons and Foreign Policy (New York: Harper, 1957), 131. 33. See Steven Kull, Minds at War: Nuclear Reality and the Inner Conflicts of Defense Policymakers (New York: Basic, 1988). 34. Bernard Brodie, Strategy in the Missile Age (Princeton, N.J.: Princeton University Press, 1959), 276–77. 35. Quoted in William Chaloupka, Knowing Nukes: The Politics and Culture of the Atom (Minneapolis: University of Minnesota Press, 1992), 30.

272

Notes to Pages 24–29

36. See respectively, Eric Williams, Capitalism and Slavery (Chapel Hill: University of North Carolina, 1944), 7; Jawaharlal Nehru, The Discovery of India (New Delhi: Penguin, 1946), 534, 603; Kwame Nkrumah, I Speak of Freedom: A Statement of African Ideology (New York: Praeger, 1961), 124, 130, 143. These writers were the leaders of independent Trinidad, India, and Ghana, respectively. 37. Kalevi Holsti, “The Coming Chaos? Armed Conflict in the World’s Periphery,” in International Order and the Future of World Politics, ed. T. V. Paul (New York: Cambridge University Press, 1999), 292. 38. Charles Tilly, “How Empires End,” in After Empire: Multiethnic Societies and Nation-Building—The Soviet Union and the Russian, Ottoman, and Hapsburg Empires, ed. Karen Barkey and Mark von Hagen (Boulder, Colo.: Westview, 1997), 2. 39. Quoted in Robert J. C. Young, Colonial Desire: Hybridity in Theory, Culture and Race (New York: Routledge, 1995), 29. 40. Trouillot, Silencing the Past, 95. Haiti received diplomatic recognition from the United States in 1862. 41. With the exception of the Iran-Iraq war, wars between non-European states have been limited affairs, the most deadly being the 1979 Sino-Vietnamese War with 21,000 casualties. Contrast this with the Franco-Prussian or Crimean wars, each with over 200,000 casualties, or to the “limited” wars involving the superpowers during the cold war (Vietnam [1 million casualties], Afghanistan [1.3 million], Korea [909,000]), and it becomes clear that interstate war in the postcolonial world has been less deadly than in the European instance; Meredith Sarkees, “The Correlates of War Data on War: An Update to 1997,” Conflict Management and Peace Science 18:1 (2000): 123–44. 42. George W. Bush, The National Security Strategy of the United States of America (Washington, D.C.: White House, 2002), 1. 43. Tanisha Fazal, State Death: The Politics and Geography of Conquest, Occupation, and Annexation (Princeton, N.J.: Princeton University Press, 2007). 44. Edmund Burke, “Reflections on the Revolution in France,” in Edmund Burke and Thomas Paine, Two Classics of the French Revolution (New York: Anchor, 1973), 57. 45. Quoted in Nicholas Dirks, The Scandal of Empire: India and the Creation of Imperial Britain (Cambridge, Mass.: Belknap, 2006), 217–18. 46. Ibid., 196–97. 47. Ibid., 125 (emphasis added). 48. The Times (London), “Editorials,” February 13, 1858, 9. 49. Ibid., “India Reform,” December 18, 1857, 7. 50. Viscount Palmerston, “Speech to the House of Commons,” February 12, 1858, Hansard, Vol. 148: cc 1282 (emphasis added). 51. Matthew Arnold, Culture and Anarchy (Cambridge: Cambridge University Press, 1960), 96 (emphasis in original). 52. Williams, Capitalism and Slavery, 208. 53. M. K. Gandhi, Village Swaraj (Ahmedabad, India: Navajivan Trust, 1962), 52. On how anticolonial nationalism developed through a distance and ambivalence from the colonial state, see Partha Chatterjee, The Nation and Its Fragments: Colonial and Postcolonial Histories (New Delhi, India: Oxford University Press, 1993). 54. Ramachandra Guha, India After Gandhi: The History of the World’s Largest Democracy (New York: Ecco, 1997), 550–51.

Notes to Pages 29–33

273

55. Eugen Weber. Peasants into Frenchmen: The Modernization of Rural France, 1870–1914 (Stanford, Calif.: Stanford University Press, 1976). 56. Dipesh Chakrabarty, Habitations of Modernity: Essays in the Wake of Subaltern Studies (New Delhi, India: Permanent Black, 2002), 32. 57. Norman Rich, The Age of Nationalism and Reform, 1850–1890 (New York: Norton, 1977), 66–76. 58. Peter Gay, The Cultivation of Hatred: The Bourgeois Experience, Victoria to Freud, vol. 4 (New York: Norton, 1996), 425. 59. Quoted in Beatrice Hibou, “From Privatising the Economy to Privatising the State,” in Privatising the State, ed. Hibou (New York: Columbia University Press, 2004), x. 60. Arjun Chowdhury, “The Giver or the Recipient? The Peculiar Ownership of Human Rights,” International Political Sociology 5:1 (2011): 35–51 61. Basil Davidson, The Black Man’s Burden: African and the Curse of the Nation-State (New York: Times, 1992), 303. 62. Stephen Brooks, Producing Security: Multinational Corporations, Globalization, and the Changing Calculus of Conflict (Princeton, N.J.: Princeton University Press, 2005). 63. Though again, the novelty of these coalitions is debatable: the antislavery and anticolonial movements were also transnational movements, as pointed out by Audie Klotz, “Transnational Activism and Global Transformations: The Abolitionist and Anti-Apartheid Experiences,” European Journal of International Relations 8:1 (2002): 49–76. 64. By “strong states,” I mean the centralized states characterized by direct rule that developed in Europe and North America after 1750. 65. Paul Hirst and Grahame Thompson, “Globalization and International Economic History,” in The Global Transformations Reader, ed. David Held and Anthony McGrew (Cambridge, U.K.: Polity, 2000), 275–76. 66. Jeff rey Herbst, States and Power in Africa: Comparative Lessons in Authority and Control (Princeton, N.J.: Princeton University Press, 2000), 88–89. 67. Martin Doornbos, Global Forces and State Restructuring: Dynamics of State Formation and Collapse (New York: Palgrave, 2006), 185–92. 68. Herbst, States and Power, 259–71; Christopher Clapham, “The Global-Local Politics of State Decay,” in When States Fail: Causes and Consequences, ed. Robert Rotberg, 77–93 (Princeton, N.J.: Princeton University Press, 2004). 69. Jay Bahadur, “Heroes in a Land of Pirates,” New York Times, January 3, 2010. 70. The phrase is Robert Kaplan’s. The notion of anarchy or a lack of governance is a staple of U.S. government documents. See, for example, Department of Defense, The U.S. National Defense Strategy (Washington, D.C.: U.S. Department of Defense, 2005), 1, 11. 71. See James Scott, The Art of Not Being Governed: An Anarchist History of Upland Southeast Asia (New Haven, Conn.: Yale University Press, 2009). 72. See Jean Comaroff and John Comaroff, eds., Law and Disorder in the Postcolony (Chicago: University of Chicago Press, 2006); Faisal Devji, Landscapes of the Jihad: Militancy, Morality, Modernity (Ithaca, N.Y.: Cornell University Press, 2005). 73. Elizabeth Povinelli, “Citizens of the Earth,” this volume.

274

Notes to Pages 33–36

74. I elaborate on this argument in Arjun Chowdhury and Aaron Rapport, “Leveraging State Weakness: How Autocrats Survive in a Hostile World,” International Studies Association Annual Conference, Montreal, March 2011. 75. This fact is surprising because the balance of capabilities strongly favors the central government. See Jason Lyall and Isaiah Wilson, “Rage Against the Machines: Explaining Outcomes in Counterinsurgency Wars,” International Organization 63:1 (2009): 67–106.

Chapter 2. War, Rights, and Contention This essay has grown out of a long-term project on the relationship between war, rights, and contentious politics. I am grateful to Michael Dorf, Beth Kier, Ron Krebs, Joe Margulies, Michael McCann, Richard Polenberg, Devyani Prabhat, Aziz Rana, Kim Lane Scheppele, Rogers Smith, Peter Spiro, Chris Way, and Jessica Weeks for thoughtful comments on a version of this essay that was presented to the Penn Program on Democracy, Citizenship, and Constitutionalism series on “Sovereignty, Territoriality, and Plural Citizenships,” December 10, 2011. Note to epigraph: Elizabeth Kier and Ronald R. Krebs, eds., In War’s Wake: International Conflict and the Fate of Liberal Democracy (New York: Cambridge University Press, 2010), 1. 1. Harold Lasswell, Essays on the Garrison State, ed. and intro. Jay Stanley (New Brunswick, N.J.: Transaction, 1998), 56, 64, 95. 2. Jay Stanley, “Introduction: An Invitation to Revisit Lasswell’s Garrison State,” in Lasswell, Essays on the Garrison State, 23. 3. Michael S. Sherry, In the Shadow of War: The United States Since the 1930s (New Haven, Conn.: Yale University Press, 1995), 33. 4. Murray Edelman, Politics as Symbolic Action: Mass Arousal and Quiescence (New York: Academic, 1971), 14. 5. Leonie Huddy, Stanley Feldman, Gallya Lahav, and Charles Taber, “Fear and Terrorism: Psychological Reactions to 9/11,” in Framing Terrorism: The News Media, the Government, and the Public, ed. Pippa Norris, Montague Kern, and Marion Just (New York: Routledge, 2003), 143– 62; Cass R. Sunstein, “Terrorism and Probability Neglect,” Journal of Risk and Uncertainty 26 (2003): 121–36. 6. In a series of investigative articles, the Washington Post on July 19, 2010, described the vast national-security industry created since 9/11, one that “has become so large, so unwieldy, and so secretive” that it “amounts to an alternative geography of the United States, a Top Secret America hidden from public view and lacking in thorough oversight” (quoted in Hendrik Hertzberg, “Comment: Open Secrets,” New Yorker, August 2, 2010, 17). For the original article, see Dana Priest and William M. Arkin, “A Hidden World, Growing Beyond Control,” Washington Post, at http://projects. washingtonpost .com /top -secret-america /articles/a-hidden-world-growing-beyond -control/. The Post has created a website to track this “national security industry” at http://projects.washingtonpost.com/top-secret-america /. 7. Ronald R. Krebs, “In the Shadow of War: The Effects of Conflict on Liberal Democracy,” International Organization 63 (2009): 177. 8. Charles Tilly, Coercion, Capital and European States (Oxford: Blackwell, 1990).

Notes to Pages 36–41

275

9. Ibid., “Where Do Rights Come From?” in Contributions to the Comparative Study of Development, ed. Lars Mjøset, 9–37 (Oslo: Institute for Social Research, 1992), 35. 10. Ibid., 10. 11. Ibid., 26–27. 12. Paul Starr, Freedom’s Power: The True Force of Liberalism (New York: Basic, 2007), x (emphasis added). 13. Tilly, “Where Do Rights Come From?” 27. 14. Hendrik Spruyt, The Sovereign State and Its Competitors: An Analysis of Systems Change (Princeton, N.J.: Princeton University Press, 1992); Thomas Ertman, Birth of the Leviathan: Building States and Regimes in Medieval and Early Modern Europe (New York: Cambridge University Press, 1997). 15. Lasswell, Essays on the Garrison State, ch. 1. 16. Tilly, Coercion and “Where Do Rights Come From?” 17. Immanuel Kant, Kant: Political Writings, 2nd ed., trans. Hans Reiss and H. B. Nisbet (Cambridge: Cambridge University Press, 1991), 4. 18. James Madison, “Political Observations,” in Letters and Other Writings of James Madison Vol. 4 (Philadelphia: Lippincott, 1865), 491–92. 19. Bruce D. Porter, War and the Rise of the State: The Military Foundations of Modern Politics (New York: Free Press, 1994) xv. 20. Anthony Giddens, The Nation-State and Violence (Berkeley: University of California Press, 1985), 245. 21. Kier and Krebs, In War’s Wake. 22. Paul Starr, “Dodging a Bullet: Democracy’s Gains in Modern War,” in Kier and Krebs, In War’s Wake, 63. 23. Kier and Krebs, “Introduction: War and Democracy in Comparative Perspective,” in Kier and Krebs, In War’s Wake, 5; see also Ronald R. Krebs, “In the Shadow of War: The Effects of Conflict on Liberal Democracy,” International Organization 63 (2009): 177–210. 24. Max Weber, General Economic History, trans. Frank H. Knight (Glencoe, Ill.: Free Press, 1950), 325–26. 25. Otto Hintze, “Military Organization and the Organization of the State,” in The Historical Essays of Otto Hintze, ed. Felix Gilbert (New York: Oxford University Press, 1975), 214. 26. Porter, War and the Rise of the State, xvi. 27. Starr, Freedom’s Power, 226. 28. Kier and Krebs, “Introduction,” in In War’s Wake, 5. 29. Geoff rey R. Stone, Perilous Times: Free Speech in War time (New York: Norton, 2004), ch. 1; James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, N.Y./London: Cornell University Press, 1967). 30. Stone, Perilous Times, ch. 2. 31. Philip A. Klinkner with Rogers M. Smith, The Unsteady March: The Rise and Decline of Racial Equality in America (Chicago: University of Chicago Press, 2002). 32. Stone, Perilous Times, ch. 3. 33. Jack L. Goldsmith and Cass R. Sunstein, “Military Tribunals and Legal Culture: What a Difference Sixty Years Makes,” John M. Olin Law and Economics Working

276

Notes to Pages 41–45

Paper no. 153, University of Chicago Law School, 2003 (available at www.law.uchicago .edu/Lawecon/index.html); Stone, Perilous Times, ch. 4. 34. Stone, Perilous Times, ch. 5. 35. Ibid., ch. 6. 36. Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, Mass.: Harvard University Press, 1992). 37. John Witt, Patriots and Cosmopolitans: Hidden Histories of American Law (Cambridge, Mass.: Harvard University Press, 2007). 38. Stone, Perilous Times, 206–8. 39. Daniel Kryder, Divided Arsenal: Race and the American State During World War Two (New York: Cambridge University Press, 2000). 40. Glenn Altschuler and Stuart Blumin, The GI Bill: The New Deal for Veterans (New York: Oxford University Press, 2009). 41. Suzanne Mettler, Soldiers to Citizens: The GI Bill and the Making of the Greatest Generation (New York: Oxford University Press, 2004). 42. Stone, Perilous Times, 519–26. 43. Rieko Kage, “The Effects of War on Civil Society: Cross-National Evidence from World War II,” in Kier and Krebs, In War’s Wake, 97–120; Theda Skocpol et al., “Patriotic Partnerships: Why Great Wars Nourished American Civil Voluntarism,” in Shaped by War and Trade: International Influences on American Political Development, ed. Ira Katznelson and Martin Shefter, 134–80 (Princeton, N.J.: Princeton University Press, 2002). 44. Meredith Sarkees, Frank Wayman, and J. David Singer, “Inter-State, IntraState and Extra-State Wars: A Comprehensive Look at Their Distribution over Time, 1816–1997,” International Studies Quarterly 47 (2003): 49–70. 45. Hils Peter Gleditch et al., “Armed Confl ict, 1946–1001: A New Dataset,” Journal of Peace Research 39 (2002): 615–37. 46. Kalevi J. Holsti, Peace and War: Armed Conflicts and International Order, 1648–1989 (New York: Cambridge University Press, 1991). 47. Kier and Krebs, “Introduction,” 6–8. 48. Aaron L. Friedberg would seem to demur: he thinks the size and strength of the American state retracted following World War II because of the American tradition of antistatism (Friedberg, In the Shadow of the Garrison State: America’s AntiStatism and Its Cold War Grand Strategy [Princeton, N.J.: Princeton University Press, 2000]). 49. Stanislav Andreski, Military Organization and Society (Berkeley: University of California Press, 1954). 50. Kier and Krebs, “Introduction,” 18–19. Kier and Krebs write that “the longserving professionals that inhabit today’s militaries are, compared to the citizensoldiers who served in the mass armies of the nineteenth and twentieth centuries, increasingly distant from the societies they are charged with protection” (19). 51. Deborah Avant, “War, Recruitment Systems, and Democracy,” in Kier and Krebs, In War’s Wake, 235–52. 52. Elizabeth Kier, “War and Reform: Gaining Labor’s Compliance on the Homefront,” in Kier and Krebs, In War’s Wake, 139– 40. 53. Ronald R. Krebs, “International Conflict and the Constitutional Balance: Executive Authority After War,” in Kier and Krebs, In War’s Wake, 188.

Notes to Pages 45–55

277

54. Goldsmith and Sunstein, “Military Tribunals,” 18. 55. Krebs, “International Confl ict,” 188. 56. Joseph Margulies, “The New Normal: An American Journey from Osama to Obama,” unpublished research proposal, October 2009. 57. Charles Tilly, Democracy (New York: Cambridge University Press, 2007); Dan Reiter, “Does Peace Nurture Democracy?”Journal of Politics 63 (2001): 935– 48. 58. Altschuler and Blumin, The GI Bill; Mettler, Soldiers to Citizens. 59. Kier and Krebs, “Introduction,” 3–7. 60. T. H. Marshall, Citizenship and Social Class and Other Essays (New York: Cambridge University Press, 1950). 61. Starr, Freedom’s Power, 891. 62. Friedberg, In the Shadow of the Garrison State. 63. Mark R. Wilson, “Spinning Mars: Democracy in Britain and the United States and the Economic Lessons of War,” in Kier and Krebs, In War’s Wake, 162–86. 64. I cannot summarize the vast professional and political literature that has examined the American government’s response to the post–9/11 security situation. For a remarkably fair, full, and comparative analysis of the impact of counterterrorism measures on civil liberties, see Laura K. Donahue’s The Cost of Counterterrorism: Power, Politics, and Liberty (New York: Cambridge University Press, 2008). For a more sympathetic account of the Bush administration’s policies, see Benjamin Wittes, Law and the Long War: The Future of Justice in the Age of Terror (New York: Penguin, 2008). For an accounting of U.S. government detention and interrogation policies and practices, see Human Rights Center, University of California at Berkeley, Guantánamo and Its Aftermath: U.S. Detention and Interrogation Practices and Their Impact on Former Detainees (Berkeley: Human Rights Center, University of California, 2008). 65. Stone, Perilous Times, ch. 3. 66. Goldsmith and Sunstein, “Military Tribunals,” 10–11. 67. Ibid., 11–15, 25–28, quotes on 16 and 21. 68. Goldsmith subsequently became an official in the Bush Justice Department, where he had the experiences that led to his resignation and to his writing of The Terror Presidency: Law and Judgement Inside the Bush Administration (New York: Norton, 2007). Since 2009, Sunstein has worked as administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, in the Obama administration. 69. Eric A. Posner and Adrian Vermeule, “Accommodating Emergencies,” in The Constitution in War time: Beyond Alarmism and Complacency, ed. Mark Tushnet, 55–94 (Durham, N.C.: Duke University Press, 2005); Posner and Vermeule, Terror in the Balance: Security, Liberty, and the Courts (New York: Oxford University Press, 2007). 70. Matthew Kroenig and Jay Stowsky, “War Makes the State, but Not As It Pleases,” Security Studies 15 (2006): 225–70, quotes on 225. 71. Posner and Vermeule, “Accommodating Emergencies”; Posner and Vermeule, Constitution in Wartime, 134– 45. 72. Hertzberg, “Comment: Open Secrets,” 17. 73. Lisa Hajjar, “Lawyers, Litigation, and the U.S. Anti-Torture Campaign,” Annual Meeting of the American Political Science Association, Washington D.C., September 2010; Devyani Prabhat, “After 9/22: Guantánamo and the Mobilization of

278

Notes to Pages 55–60

Lawyers,” unpublished paper, New York University Department of Sociology, New York, 2010. 74. Mark Sidel, More Secure, Less Free? Antiterrorism Policy and Civil Liberties After September 11 (Ann Arbor: University of Michigan Press, 2007). 75. Bogdan Vasi and David Strang, “Civil Liberty in America: The Diff usion of Municipal Bill of Rights Resolutions After the Passage of the USA PATRIOT Act,” American Journal of Sociology 114 (2009): 1716–1764. 76. P. Sabin Willett, “Prelude,” in The Guantánamo Lawyers: Inside a Prison Outside the Law, ed. Mark P. Denbaux and Jonathan Hafets, 7–11 (New York: New York University Press, 2009). 77. Margulies, “New Normal.” 78. Tilly, “Where Do Rights Come From?” 17.

Chapter 3. Subcontracting Sovereignty This essay is the result of many conversations. Rogers Smith’s invitation and Anne Norton’s stimulation (see note 4) are responsible for the title concept and the essay that emerged around it. I am grateful to the participants in the University of Pennsylvania’s Program on Democracy, Citizenship, and Constitutionalism for their generosity and enthusiasm. Ian Baird, Gail Hershatter, and Rogers Smith offered helpful comments for revision. My deepest gratitude goes to those Hmong Americans who have been kind enough to tell me about their histories and hopes—including my Hmong students and research assistant. To protect their privacy, I do not mention their names, but I am honored by their attempts to teach me. General Vang Pao died in January 2011 after this essay was written. 1. Mahmood Mamdani, Good Muslim, Bad Muslim: America, the Cold War, and the Roots of Terror (New York: Pantheon, 2004). 2. Nasser Hussain, “In Conflict: Sovereignty, Identity, Counterinsurgency,” this volume. 3. Sidney Tarrow, “War, Rights, and Contention: Lasswell v. Tilly,” this volume. 4. My use of the term subcontracting here was inspired by a conversation with political scientist Anne Norton about a paper I had written about subcontracting in the business sense. (See Anna Tsing, “Supply Chains and the Human Condition,” Rethinking Marxism 21:2 [2009]: 148–76). Professor Norton and I discussed how the concept of subcontracting is also relevant to state functions, for example, in the U.S. outsourcing of torture called “extraordinary rendition.” That conversation stimulated my invitation to participate in Rogers Smith’s lecture series—and this volume—to discuss “subcontracting sovereignty.” The current exploration of the political challenges of the afterlife of proxy warriors is my attempt to develop the concept productively for questions of sovereignty and citizenship. 5. Thomas Blom Hansen and Finn Stepputat, “Introduction,” in Sovereign Bodies: Citizens, Migrants, and States in the Postcolonial World (Princeton, N.J.: Princeton University Press, 2005), 3. 6. Parallels with Montagnard ethnonationalism in Vietnam are striking, even as each case is distinctive. See Thomas Pearson, Missions and Conversions: Creating the Montagnard-Dega Refugee Community (New York: Palgrave MacMillan, 2009); Oscar Salemink, The Ethnography of Vietnam’s Central Highlanders: A Historical Con-

Notes to Pages 61–64

279

textualization, 1850–1990 (Honolulu: University of Hawaii Press, 2003). Early FULRO (United Front for the Liberation of Oppressed Races) mobilizations drew on sovereignty claims to the remnant potency of the ancient Champa empire in retreat in Vietnam’s hills; the American war eventually channeled the movement away from alliances with ethnic Cham toward pan-highlander identifications. See Gerald Cannon Hickey, Free in the Forest: Ethnohistory of the Vietnamese Central Highlands 1954–1976 (New Haven, Conn.: Yale University Press, 1982). 7. See, for example, Yang Dao, “Hmong Culture Is Hmong Soul,” in The Impact of Globalization and Transnationalism on the Hmong, ed. Gary Yia Lee, 53–56 (St. Paul, Minn.: Center for Hmong Studies, 2009). Most Western historians see such stories of a long migration from northern China as modern myths. 8. Thongchai Winichakul, Siam Mapped: A History of the Geo Body of a Nation (Honolulu: University of Hawaii Press, 1997), 88. 9. Ibid., 96. In describing state claims, Thongchai is referring to precolonial multiethnic governance. Hmong mobilization of ethnically orga nized political claims draws from later colonial and postcolonial arrangements of power and classification. 10. See William Smalley, Chia Koua Vang, and Gnia Yee Yang, Mother of Writing: The Origin and Development of a Hmong Messianic Script (Chicago: University of Chicago Press, 1990). 11. Tony Kennedy and Paul McEnroe, “The Covert Wars of Vang Pao,” StarTribune, July 2, 2005. 12. Retired U.S. Air Force Brig. Gen. Harry Aderholt, who ran a covert operation in Laos during the CIA secret war, quoted in Kennedy and Paul, “Covert Wars of Vang Pao.” 13. For supporters, see Jane Hamilton-Merritt, Tragic Mountains: The Hmong, the Americans, and the Secret Wars for Laos 1942–1992 (Bloomington: Indiana University Press, 1993). For critics, see Alfred McCoy, The Politics of Heroin: CIA Complicity in the Global Drug Trade (Chicago: Lawrence Hill, 1991). 14. Hmong Americans remember Hmong gender differentiation as a key feature of the war in Laos. “Communist” women participated in armed struggle; CIAsupported Hmong differentiated themselves through their refusal to let women fight. The United States of the late twentieth and early twenty-first centuries has not been an easy place for the reproduction of this differentiation, and Hmong American women have established themselves in leadership roles and have even challenged “traditional” rituals. (See, for example, Vincent Her, “Animal Sacrifice and Social Meanings in Hmong American Funerals,” in Lee, Impact of Globalization, 3–12, esp. p. 7.) In Minnesota, a woman serves on the Council of the Eighteen Clans (Mai Moua, “Leadership Development: A Critical Component to Advancing Hmong Society in the United States,” in Lee, Impact of Globalization, see p. 42). Influential Hmong scholar Gary Yia Lee argues that Hmong American men are stuck in the space of war in Laos precisely because of changing gender standards in the United States. “[Men] no longer have the authority they once had over their wives and children. Thus, Hmong men in such a situation long for the old days in Laos where they had supreme control in the household. . . . With the lack of access to meaningful employment, men who used to supervise others might now work as subordinates, sometimes under men they used to command as soldiers in the homeland. Rather than continuing to suffer this humiliation, they might join political groups that tried to regain control of the homeland from the current

280

Notes to Pages 65–76

political regime, even if they had to pay money and spend countless hours on activities they knew to be futile. Yet the new dreary life they are now living makes them dream and long for a Hmong country where they could again be in control. . . . It is almost as if the longing for the past is necessary to make the present meaningful and worth living for” (“Transnational Space and Social Memories: Why the Hmong in the Diaspora Cannot Forget Laos?” in Lee, Impact of Globalization, 127). This astute gender analysis is an important complement to the material I present in this essay. 15. See Michael Taussig, Shamanism, Colonialism, and the Wild Man (Chicago: University of Chicago Press, 1991); Ganneth Obeyesekere, Cannibal Talk (Berkeley: University of California Press, 2005). 16. See, for example, Wikipedia, “Anthony Poshepny,” http://en.wikipedia.org/wiki /Anthony_Poshepny; NNDB, “Tony Poe,” http://www.nndb.com/people/157/000130764 /; Spartacus Educational, http://www.spartacus.schoolnet.co.uk/JFKposhepny.htm. 17. Hamilton-Merritt, Tragic Mountains, ch. 30. 18. Denny Walsh and Sam Stanton, “Federal Charges Against Vang Pao Dropped,” Fresno Bee, September 18, 2009. 19. Larry Devlin quoted in Tim Weiner, “Gen. Vang Pao’s Last War,” New York Times Magazine, May 11, 2008. 20. The charge was too widespread to cite. Yang Dao’s rebuttal, in which he says his father was “150% Hmong,” can be found in an interview with Wameng Moua for Hmong Today, April 13, 2008, http://www.tcdailyplanet.net/article/2008/04/09/scholar -hero-untold-story-how-dr-yang-dao-negotiated-fate.html. 21. Eric Bailey and My-Thuan Tran, “Federal Charges Dropped Against Hmong Leader Vang Pao,” Los Angeles Times, September 19, 2009. 22. I am thankful to Lue Vang, David Pheng, and Hjorleiff ur Jonsson for translating during these interviews. 23. Camp life is eloquently described by anthropologist Lynellyn Long in Ban Vinai: The Refugee Camp (New York: Columbia University Press, 1992). 24. Hamilton-Merritt, Tragic Mountains, ch. 24. 25. Lee Lor details histories of Hmong refugees from Laos recruited by the Thai army for anti-communist activities. “The Thai military ordered these Hmong to invade Laos,” he writes in “The Thai-Hmong and Hmong Refugees in Thailand: The Politics of Human Rights,” in Lee, Impact of Globalization, 31– 40, quote on 35. 26. Ian Baird (personal communication, 2011) writes: “They only rode to the border with Laos and then they walked to China, passing Laos. It took about thirtyone days to reach China from Thailand.” 27. Pearson, Missions and Conversions. 28. Philip Boffey, “The ‘Yellow Rain’ Debate: Scientists Take Sides As Battle Intensifies,” New York Times, June 21, 1983. 29. Tony Birtley, “The Lost Tribe,” AlJazeeraEnglish, March 10, 2008.

Chapter 4. In Conflict 1. The U.S. Army/Marine Corps Counterinsurgency Field Manual (Chicago: University of Chicago Press, 2007). Hereafter cited in the text as CFM, with section numbers following. 2. Ibid., xlv.

Notes to Pages 76–84

281

3. General Jack Keane, quoted in John Nagl, “Foreword,” CFM, xiv. 4. Thomas Ricks, The Gamble: General David Petraeus and the American Military Adventure in Iraq, 2006–2008 (New York: Penguin, 2009), 24. 5. David Price, “Faking Scholarship: Domestic Propaganda and the Republication of the Counterinsurgency Field Manual,” in The Counter-Counterinsurgency Manual, ed. Catherine Besteman et al. (Chicago: Prickly, 2009), 71. 6. Eqbal Ahmad, “Counterinsurgency” [1971], in The Selected Writings of Eqbal Ahmad, ed. Carollee Bengelsdorf et al. (New York: Columbia University Press, 2006), 37. 7. Ibid., 54. 8. Ibid., 39. 9. C. E. Callwell, Small Wars: Their Principles and Practice (Lincoln: Bison/ University of Nebraska Press, 1996 [3d ed., 1906]). For a comprehensive account of the Victorian wars of empire, see Byron Farwell, Queen Victoria’s Little Wars (New York: Norton, 1972). 10. Callwell, Small Wars, 21. 11. Ibid. 12. Roger Trinquier, Modern Warfare: A French View of Counterinsurgency, trans. Daniel Lee (New York: Praeger Security International, 2006 [1st ed., 1964]). 13. David Galula, Counterinsurgency Warfare: Theory and Practice (New York: Praeger Security International, 2006 [1st ed., 1964]). 14. Sir Robert Thompson, Defeating Communist Insurgency: The Lessons of Malaya and Vietnam (New York: Praeger, 1966). 15. Frank Kitson, Low Intensity Operations (London: Archon, 1971). 16. David Kilcullen, The Accidental Guerrilla (Oxford: Oxford University Press, 2009), 12. 17. Ibid., 13. 18. Greg Feldman, “Radical or Reactionary? The Old Wine in the Counterinsurgency Field Manual’s New Flask,” in Besteman et al., Counter-Counterinsurgency Manual, 80. 19. Major General Sir Charles Gwynn, Imperial Policing (London: Macmillan, 1934), 3. 20. Ibid., 3– 4. 21. Ibid., 4. 22. Ibid., 5. 23. Notes on Imperial Policing 1934, National Archives, WO 279/796. 24. Thomas R. Mockaitis, British Counterinsurgency, 1919–1960 (New York: St. Martin’s, 1990), 24. 25. Charles Townshend, Britain’s Civil Wars: Counterinsurgency in the Twentieth Century (London: Faber and Faber, 1986), 104. For a detailed chronology of the events, see Barbara Kalkas, “The Revolt of 1936: A Chronicle of Events,” in The Transformation of Palestine: Essays on the Origin and Development of the Arab-Israeli Conflict, ed. Ibrahim Abu-Lughoded, 237–274 (Evanston, Ill.: Northwestern University Press, 1971; 2nd ed., 1987). 26. Notes on Imperial Policing 1934, 11. 27. Ibid., 12–13. 28. Imperial Policing and Duties in Aid of the Civil Power 1949, National Archives, WO 279/391.

282

Notes to Pages 84–91

29. Ibid., 7. 30. Ibid., 35. 31. Ibid., 39. 32. Notes on Imperial Policing 1934, 14. 33. Townshend, Britain’s Civil Wars, 105. 34. Internal Security Duties 1947, National Archives, CO 537/1971. 35. Galula, Counterinsurgency Warfare, 81. 36. Ibid., 78–83. 37. Alex Kingsbury, “The U.S. Army Ramps up Biometrics to ID Baghdad Residents,” U.S. News and World Report, May 1, 2008. 38. Steve Niva, “Walling Off Iraq: Israel’s Imprint on U.S. Counterinsurgency Doctrine,” Middle East Policy 25:3 (Fall 2008): 67–79. 39. Ricks, The Gamble, 201. 40. Associated Press, “Baghdad’s Walls Keep Peace but Feel Like Prison,” USA Today, June 27, 2008. 41. Killcullen, Accidental Guerrilla, 117. 42. International Crisis Group, The Next Iraqi War? Sectarianism and Civil Conflict, Middle East Report No. 52, February 27, 2006, p. 10. 43. Ibid, 12. 44. Kanan Makiya, “Present at the Disintegration,” New York Times, December 11, 2005. 45. Ricks, The Gamble, 33. 46. International Crisis Group, Iraq After the Surge I: The New Sunni Landscape, Middle East Report No. 74, April 30, 2008, p. 22, n137. 47. Sabrina Tavernise, “District by District, Shiites Make Baghdad Their Own,” New York Times, December 23, 2006, A1. 48. Ned Parker and Ali Hamdani, “How Violence Is Forging a Brutal Divide in Baghdad,” Times (London), December 14, 2006, 48. 49. Ashraf al-Khalidi and Victoria Tanner, “Sectarian Violence: Radical Groups Drive Internal Displacement in Iraq,” Brookings Institution, Washington, D.C., October 18, 2006. 50. Nir Rosen, “An Ugly Peace,” Boston Review (Nov.–Dec. 2009), 18. 51. In July 2008, when the American Prospect asked ten experts on Iraq, ranging from military and foreign-policy analysts to academics, to evaluate the surge, nearly every one of them emphasized the importance of the awakening and the decision by Muqtada al-Sadr to cease the activities of the Mahdi army. See Dylan Matthews and Ezra Klein, “How Important Was the Surge? Ten Iraq Experts Weigh in on the Effectiveness of the Surge,” American Prospect (July 28, 2008). 52. Ricks, The Gamble, 201. 53. Quoted in ibid. 54. Kilcullen, Accidental Guerrilla, 142. 55. Arthur Bright, “Baghdad’s Sunni/Shiite Security Wall,” Christian Science Monitor, April 20, 2007; Patrick Cockburn, “Sunnis Protest Against Baghdad’s ‘Prison Wall,’ ” Independent, April 24, 2007. 56. For Kilcullen’s views, see Noah Shachtman, “Baghdad Walls Key to Baqubah Push?” Wired, June 27, 2007; the local resident is quoted in Bright, “Baghdad’s Security Wall”; Prime Minister Maliki is quoted in Cockburn, “Sunnis Protest.”

Notes to Pages 91–103

283

57. Cockburn, “Sunnis Protest.” 58. Nir Rosen, “The Myth of the Surge,” Rolling Stone, March 6, 2008. 59. See Niva, “Walling Off Iraq”; and Michael Schwartz, “Colonizing Iraq: The Obama Doctrine?” TomDispatch.com, July 9, 2009, http://www.tomdispatch.com/post /175093/michael _schwartz _twenty_first _century_colonialism _in _iraq. 60. Matthew Duss, “How Important Was the Surge?” 61. James Denselow, “Freezing the Conflict: Security Walls Have Brought Signs of ‘Progress’ in Iraq but They Are Also Consolidating Long-Term Problems,” Guardian, April 28, 2008. 62. Associated Press, “Baghdad’s Walls Keep Peace.” 63. Associated Press, “Concrete Walls Put Up to Protect Samarra’s Famed Golden Dome Shrine Now Creates Divide,” October 6, 2009. 64. Marc Santora, “Too Early to Bring Down the Walls?” NYTimes.com, “At War” blog (August 24, 2009), http://atwar.blogs.nytimes.com/2009/08/24/too-early -to-bring-down-the-walls/. 65. Associated Press, “Baghdad’s Walls Keep Peace.” 66. Santora, “Too Early to Bring Down the Walls?” 67. Associated Press, “Concrete Walls Put Up.” 68. Ibid. 69. See Rosen, “An Ugly Peace.”

Chapter 5. Citizen Terrorists and the Challenges of Plural Citizenship 1. A third element of citizenship law—the entitlements that citizens but not noncitizens may claim—has changed over time. I do not discuss it here because it bears no discernible relationship to the problem of plural citizen–initiated terrorism. 2. Alexander M. Bickel, The Morality of Consent (New Haven, Conn.: Yale University Press, 1975), 54. 3. Peter H. Schuck, “Membership in the Liberal Polity: The Devaluation of American Citizenship,” Georgetown Immigration Law Journal 3 (1989): 1–18. 4. Peter H. Schuck, “The Reevaluation of American Citizenship,” Georgetown Immigration Law Journal 12 (1997): 1–34. 5. Peter H. Schuck, “Three Models of Citizenship,” in Citizenship in America and Europe: Beyond the Nation-State? ed. Michael S. Greve and Michael Zöller, 151–77 (Washington, D.C.: AEI, 2009). 6. My earlier essay also discussed a Marshallian model, based on T. H. Marshall’s famous trinity of citizenship rights; but it primarily addresses the scope of equality among citizens within a state (ibid., 153). 7. See, e.g., Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven, Conn.: Yale University Press, 1997). His account takes the story only up to 1912. 8. Peter H. Schuck and Rogers M. Smith, Citizenship Without Consent: The Illegal Alien in the American Polity (New Haven, Conn.: Yale University Press, 1985). 9. Julia Preston, “State Lawmakers Outline Plans to End Birthright Citizenship, Drawing Outcry,” New York Times, January 6, 2011, A16.

284

Notes to Pages 103–111

10. As a policy matter, birthright citizenship has many advantages in facilitating immigrant assimilation, advantages that some European states have begun to recognize, albeit in more restrictive versions than the American one. 11. Immigration and Nationality Act, sec. 349(1), 8 U.S.C.A., §1481(a). 12. See Rasul v. Bush, 542 U.S. 466 (2004) (habeas corpus available to those in U.S. custody in a place, Guantánamo Bay prison, over which the United States exercises “complete jurisdiction and control,” though not “ultimate sovereignty”). For a provocative extension of this view of American obligations, see Rogers M. Smith, “Living in a Promiseland? Mexican Immigration and American Obligations,” Perspectives on Politics 9 (2011): 545–57. See generally Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (Princeton, N.J.: Princeton University Press, 1996). 13. See, e.g., Roper v. Simmons, 543 U.S. 551 (2005). 14. For current purposes, I set aside notoriously difficult issues concerning what we mean by equal treatment, the traits of individuals or contexts that may justify differential treatment notwithstanding a general commitment to equality, the tradeoffs that an egalitarian program may entail, the relationship between procedural and substantive equality, and the like. 15. Ayelet Shachar criticizes birthright citizenship as the legal equivalent of an inherited property right that reinforces and magnifies existing morally unacceptable global inequalities. See Shachar, The Birthright Lottery: Citizenship and Global Inequality (Cambridge, Mass.: Harvard University Press, 2009). 16. Technology and updated treason laws may make treason easier to prove. See Kristin E. Eichensehr, “Treason in the Age of Terrorism: An Explanation and Evaluation of Treason’s Return in Democratic States,” Vanderbilt Journal of International Law 42 (2009): 1443.

Chapter 6. Immigration, Causality, and Complicity 1. The locus classicus of this debate is Joseph Carens, “Aliens and Citizens: The Case for Open Borders,” Review of Politics 49:2 (1987): 251–73. The issue is dealt with in different ways by Arash Abizadeh, “Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders,” Political Theory 36:1 (2008): 37– 65; Chandran Kukathas, “Expatriatism: The Theory and Practice of Open Borders,” in Citizenship, Borders, and Human Needs, ed. Rogers M. Smith, 324– 42 (Philadelphia: University of Pennsylvania Press, 2011); Veit Bader, “The Ethics of Immigration,” Constellations 12 (2005): 331– 61; and Phillip Cole, Philosophies of Exclusion: Liberal Political Theory and Immigration (Edinburgh: University of Edinburgh Press, 2000). 2. See Steven Macedo, “The Moral Dilemma of U.S. Immigration Policy: Open Borders Versus Social Justice?” in Debating Immigration, ed. Carol Swain, 63–81 (Cambridge: Cambridge University Press, 2007); Macedo, “When and Why Should Liberal Democracies Restrict Immigration?” in Smith, Citizenship, Borders, and Human Needs, 301–23; Howard Chang, “The Immigration Paradox: Alien Workers and Distributive Justice,” in Smith, 92–114; Chang, “The Economics of International Labor Migration and the Case for Global Distributive Justice in Liberal Political Theory,” Cornell International Law Journal 41:1 (2008): 1–25.

Notes to Pages 112–115

285

3. See Joseph Carens, “Who Should Get In? The Ethics of Immigration Admissions,” in Ethics and International Affairs 17:1 (2003): 95–110; Michael Blake, “Immigration,” in A Companion to Applied Ethics, ed. R. Frey and C. Wellman (Malden, Mass.: Blackwell, 2003); Sam Scheffler, “Immigration and the Significance of Culture,” Philosophy and Public Affairs 35 (2007): 93–125. 4. Smith argues that a state can acquire an obligation to include by coercively structuring the social identities available to foreign citizens. I intend my argument here to be in the broad spirit of Smith’s position, although I think my argument is more limited than his own. See Rogers M. Smith, “The Principle of Constituted Identities and the Obligation to Include,” Ethics and Global Politics 1:3 (2008): 139–53. See also Smith, “Constitutional Democracies, Coercion, and Obligation to Include,” in The Limits of Constitutional Democracy, ed. Jeff ry Tullis and Stephen Macedo, 280–96 (Princeton, N.J.: Princeton University Press, 2010). 5. I say “some number” to allow demands of differing strengths to be recognizable versions of this claim. The most stringent version, of course, would insist that all individuals displaced by a government’s actions have a right to entry. 6. Michael Walzer, Spheres of Justice (New York: Basic, 1983), 49. Walzer’s specific argument here relies on his concept of nationhood and affinity; the causal claim he invokes, however, does not make any essential reference to such matters. 7. In this chapter, I will try to avoid the use of the word refugee since it tends to refer to both a legal and a moral construct. I want to head off any debate involving whether or not displaced Iraqis would qualify as refugees under the Geneva Convention since my topic here involves moral duties that would presumably be in place even had these conventions never been written. 8. Nicole Gaouette, “Few Iraqis Able to Find Sanctuary Within the U.S,” Los Angeles Times, January 17, 2007, 11. 9. “Left Behind,” New Republic, January 22, 2007, 7. 10. I use the term “undocumented worker” synonymously with “illegal immigrant.” The terms refer to the same population; which term is used tends to provide information more about the author’s political sympathies than anything else. 11. Robert J. Samuelson, “Seeking Sense on Immigration,” Washington Post, May 2, 2007, A15. 12. Exactly how many, of course, depends on our understanding of what counts as objectionably oppressive. I take it as uncontroversial, however, that many states in the world fall below any plausible threshold of political legitimacy. On this, see generally Allen Buchanan, Justice, Legitimacy, and Self-Determination: The Moral Foundations of International Law (Oxford: Oxford University Press, 2007). 13. I do not mean to imply the falsity of the opposite claim; we might have a duty to rectify even naturally occurring evils. I mean here to emphasize only that there is nothing natural or inevitable about our current political institutions, and thus we bear collective responsibility for their effects. I am grateful to Melissa Knox for discussion of this point. 14. A more sophisticated version of this claim may be found in Thomas Pogge, World Poverty and Human Rights (New York: Polity, 2002). 15. It is, of course, entirely possible that many states have limited capacity to effectively cause change internationally while maintaining their own development trajectories. What duties such states have is a problem I do not consider here.

286

Notes to Pages 115–121

16. See, for instance, the discussion of the Anfal campaign in Samantha Power’s excellent A Problem from Hell: America in the Age of Genocide (New York: Harper, 2003). 17. For a suggestion of how to allocate such burdens, see Liam Murphy, Moral Demands in Nonideal Theory (New York: Oxford University Press, 2000). 18. It is a comfort perhaps to see that even if this argument succeeds, the United States is not blameless. Whatever our fair share is of the problem of displaced persons, we can safely assume that 466 persons is less than that share. 19. See “Left Behind,” New Republic. 20. I do not think it matters much whether the motivation for the war is humanitarian or not; I assume that a just and proportionate war remains just, even if the motives of its promoters are somewhat suspect. On this, see Michael Blake, “Collateral Benefit,” Social Philosophy and Policy 23 (2006): 218–30. 21. The methodology used here is borrowed from Tim Scanlon, What We Owe to Each Other (Cambridge, Mass.: Harvard University Press, 1999). 22. The “would” here is, of course, more normative than predictive. We would like to think that actual persons would accept this risk; the primary argument, however, is that—if appropriately situated, motivated, and informed—they would be unreasonable if they did not accept the risk. 23. Indeed, it might be thought that since the authors of this invasion risked their own lives—or at least the lives of their compatriots—they have fewer duties of rectification than the other states able to help. The invading state may be able to say, we have already done more than you to help rectify a shared evil. I am not sure of this conclusion, however, and will not emphasize it here. 24. This is, I think, the difference between Smith’s principle and my own. Smith focuses on the fact that the coercive foreign action alters the form of life available to the Iraqi and takes this as sufficient to grant a right to admission. My own principle asks first whether or not this coercion is justified and then, where it is justified, asserts that the residual burden of dispossession brought about by military agency should be borne by a variety of countries, not simply the coercive agent. 25. As I write this, Libyan rebel forces are entering Sabha, taking one of the last remaining cities loyal to Muammar Gaddafi. It is still rather early to make any pronouncement about the role of NATO and the United States in the Libyan revolution, but I suspect that what I have said here might give us some reason to think that the Libyan rebels have no par ticu lar right to entry into the United States. The role of the U.S. military was too attenuated and the cause of the intervention too good to make a plausible showing that whatever dispossession and disruption results are properly laid at the feet of the United States. It is, of course, foolish to make any blanket pronouncement at this point, and it is always possible that new events or new information may make this conclusion void. 26. See, on this subject, Robert Nozick, Anarchy, State and Utopia (New York: Basic, 1974). 27. I should note in passing that I am not sure any substantive response to this question is truly required. It might be enough to note that the prospective immigrant seeks a benefit to which he has no moral title; more need not be said. Similarly, when someone wishes to join our household— perhaps through marriage or cohabitation— the request can be refused without any more elaborate reason than that the individual

Notes to Pages 121–125

287

in question has no right to what he demands, and we are not inclined to give it as a matter of grace. For present purposes, however, I will assume that some more substantive answer is required. 28. See Peter Brimelow, Alien Nation (New York: Harper Perennial, 1996); and Walzer, Spheres of Justice. 29. I develop this argument more, in conjunction with Mathias Risse, in “Migration, Territoriality, and Culture,” in New Waves in Applied Ethics, ed. Jesper Ryberg, Thomas S. Petersen, and Clark Wolf, 153–82 (London: Ashgate, 2007).

Chapter 7. The Missing Link 1. The literature on America as a “nation of immigrants” is too vast to cite. Notable contributions include Alejandro Portes and Ruben G. Rumbaut, Immigrant America: A Portrait, 3d ed. (Berkeley: University of California Press, 2006); Aristide R. Zolberg, A Nation by Design: Immigration Policy and the Fashioning of America (Cambridge, Mass.: Harvard University Press, 2006); Oscar Handlin, The Uprooted: The Epic Story of the Great Migrations That Made the American People (Boston: Little, Brown, 1951) (opening with the following statement: “Once I thought to write a history of the immigrants in America. Then I discovered that immigrants were America”). 2. The ideal of “a government of laws and not of men” is as old as the American republic itself. In fact, it predates it, appearing in the Massachusetts Constitution of 1780, Article XXX: “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legal and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may a government of laws and not of men.” 3. See Bernard A. Weisberger, “A Nation of Immigrants,” American Heritage 45 (Feb.–Mar. 1994): 75. 4. Canada, Australia, and New Zealand have higher per-capita rates but lower absolute admission numbers. The foreign-born population in the United States as of 2007 accounts for approximately 13.6 percent of the population, with 20.1 percent in Canada, 25 percent in Australia, and 21.6 percent in New Zealand. 5. In recent years, the Canadian Temporary Workers Program has grown exponentially; Canada now accepts more temporary foreign workers than permanent residents (“landed immigrants”) on an annual basis. 6. I use the terms undocumented, unauthorized, and irregular migrants interchangeably throughout this chapter to refer to the situation of persons who either entered in breach of immigration laws or overstayed their initial visas. 7. See Senator Charles Schumer, chairman of the Senate Subcommittee on Immigration, Refugees, and Border Security, Remarks for 6th Annual Immigration Law and Policy Conference, Migration Policy Institute, Washington, D.C., June 24, 2009. 8. See Federation for American Immigration Reform, “FAIR’s Response to Sen. Charles Schumer’s Seven Point Plan for So-Called ‘Comprehensive Immigration Reform,’ ” press release, June 25, 2009. 9. Mark Krikorian, “Amnesty Again: Th is Country Should Have Learned— Apparently, It Has Not,” National Review (Jan. 26, 2004).

288

Notes to Pages 125–129

10. See Kevin Johnson, Opening the Floodgates: Why America Needs to Rethink Its Borders and Immigration Laws (New York: New York University Press, 2007), 187 (citing George W. Bush in a White House press release dated Jan. 7, 2004). 11. The White House, President George W. Bush, “Fact Sheet: Fair and Secure Immigration Reform,” Jan. 7, 2004 (stating that “illegal immigration . . . creates an underclass of workers, afraid and vulnerable to exploitation. . . . Workers risk their lives in dangerous and illegal border crossings and are consigned to live their lives in the shadows”). 12. Krikorian, “Amnesty Again.” 13. See The Essential Holmes: Selection from the Letters, Speeches, Judicial Opinions and Other Writings of Oliver Wendell Holmes, ed. Richard A. Posner (Chicago: University of Chicago Press, 1992), 176. Another strand of property theory emphasizes the personhood-constitutive dimension of the relationship between individuals and property. See Margaret Jane Radin, “Property and Personhood,” Stanford Law Review 34 (1982): 957. 14. See U.S. Congress, Congressional Record, 110th Cong., 1st sess., vol. 153, no. 161, Oct. 23, 2007 (statement of Rep. King of Iowa). 15. William Blackstone, Commentaries on the Laws of England, vol. 2 (Chicago: University of Chicago Press, 1979 [orig. ed., 1766]). 16. See J. W. Harris, “Private and Non-Private Property: What Is the Difference?” Law Quarterly Review 111 (1995): 421. Citizenship is more akin to a broad, social-relational conception of property rather than a narrow, market-based one. For detailed analysis, see Ayelet Shachar, The Birthright Lottery: Citizenship and Global Inequality (Cambridge, Mass.: Harvard University Press, 2009). 17. See Demetrios G. Papademetriou et al., “Harnessing the Advantages of Immigration for a Twenty-First-Century Economy: A Standing Commission on Labor Markets, Economic Competitiveness, and Immigration” Migration Policy Institute, May 2009 (“It is now a cliché in the debate about U.S. immigration policy to declare that the ‘system is broken.’ Such blanket declarations go beyond illegal immigration and cut across all of the immigration system’s main components” [1]). 18. See Seyla Benhabib, The Rights of Others: Aliens, Residents and Citizens (Cambridge: Cambridge University Press, 2004), 141. 19. I have addressed these over- and under-inclusion concerns in detail in “Children of a Lesser State: Sustaining Global Inequality Th rough Citizenship Laws,” in NOMOS: Child, Family, and State, ed. Stephen Macedo and Iris Marion Young, 345–97 (New York: New York University Press, 2003); Shachar, Birthright Lottery, 111–33. 20. See Immanuel Kant, Groundwork of the Metaphysics of Morals, trans. Mary Gregor (Cambridge: Cambridge University Press, 1998). Invoking Kant here is restricted to the connection between the rule of law and property rather than endorsing his par ticu lar vision of property rights. This shift in perspective also allows for the highlighting of notions of interdependence, acquiescence, and reliance, as well as the importance of state action or omission in giving rise to a legal obligation. 21. See United States v. Wong Kim Ark, 169 U.S. 649 (1898) (pronouncing that there are “two sources of citizenship, and only two: birth and naturalization”). 22. See Gregory S. Alexander et al., “A Statement of Progressive Property,” Cornell Law Review 94 (2009): 743. See also Kristen A. Carpenter et al., “In Defense of Property,” Yale Law Journal 118 (2009): 1022 (defending a stewardship model of property).

Notes to Pages 129–130

289

23. In the early twentieth century, the critical attempt was to impose notions of public law and accountability on private actors; a classic contribution in this vein is Morris R. Cohen, “Property and Sovereignty,” Cornell Law Quarterly 13 (1927): 8. Today, we find a rich discussion that aims to bring considerations of public good and human flourishing to the analysis of private-property relations. Recent years have also witnessed attempts to explain the sovereign prerogative of regulating borders as grounded in property theory. See, e.g., Kurt Burch, “Property” and the Making of the International System (Boulder, Colo.: Lynne Rienner, 1998); and Anna Stilz, “Why Do States Have Territorial Rights?” International Theory 1 (2009): 185 (distinguishing between Lockean and Kantian accounts). 24. See Charles Reich, “The New Property,” Yale Law Journal 73 (1964): 733. 25. See Patrick Weil, “From Conditional to Secure and Sovereign: The New Strategic Link between the Individual and the Nation-State in a Globalized World,” International Journal of Constitutional Law 9 (2011): 615. 26. See, e.g., Shachar, Birthright Lottery; Ayelet Shachar and Ran Hirschl, “Citizenship as Inherited Property,” Political Theory 35 (2007): 253. 27. I make this observation as a factual and empirical statement, based on the operation of membership rules enforced by nation-states in the real world around us. For those who argue in favor of a normative global-cosmopolitan alternative, however, any legal regime that defines membership as bounded (i.e., encompassing less than the whole world population) is perceived as falling short of the ideal. There is a vast body of political and philosophical writings on these topics. Some of the most influential accounts in this vein include Benhabib, Rights of Others; Linda Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership (Princeton, N.J.: Princeton University Press, 2006); Phillip Cole, Philosophies of Exclusion: Liberal Theory and Immigration (Edinburgh: Edinburgh University Press, 2000); Catherine Dauvergne, Making People Illegal: What Globalization Means for Migration and Law (Cambridge: Cambridge University Press, 2008); Peter J. Spiro, Beyond Citizenship: American Identity After Globalization (New York: Oxford University Press, 2008); Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic, 1983), 31–63; T. Alexander Aleinikoff, “The Tightening Circle of Membership,” Hastings Constitutional Law Quarterly 22 (1994): 915; Joseph H. Carens, “Aliens and Citizens: The Case for Open Borders,” Review of Politics 49 (1987): 251. 28. This section draws upon Shachar, Birthright Lottery, 27–33. 29. In the family-law context, see, for example, Martha Minow and Mary Lyndon Shanley, “Revisioning the Family: Relational Rights and Responsibilities,” in Reconstructing Political Theory: Feminist Perspectives, ed. Mary Lyndon Shanley and Uma Narayan, 84–108 (University Park, Pa.: Pennsylvania State University Press, 1997) (proposing the grounding of family policy and law in a nexus of relational rights and responsibilities, as opposed to contractual and communitarian conceptions of the family). See also Jennifer Nedelsky, “Citizenship and Relational Feminism,” in Canadian Political Philosophy, ed. Ronald Beiner and Wayne Norman, 131–46 (Oxford: Oxford University Press, 2001). 30. See, e.g., Jenni Millbank, “The Role of ‘Functional Family’ in Same-Sex Family Recognition Trends,” Child & Family Law Quartery 20 (2008):1 (highlighting the prevalence of legal recognition offered to nontraditional family structures through the adoption of a functional family model in the United States, Canada, Australia, and Britain). 31. Jeremy Waldron, “What Is Private Property?” Oxford Journal of Legal Studies 5 (1985): 313, 318.

290

Notes to Pages 131–134

32. See Immigration and the Politics of Citizenship in Europe and North America, ed. W. Rogers Brubaker (Lanham, Md.: University Press of America, 1989), 21. 33. It can be restrained by other liberties and compelling state interest. There are also internal limits to property rights. See Gregory S. Alexander, “The Social-Obligation Norm in American Property Law,” Cornell Law Review 94 (2008–2009): 735. See also Shachar, Birthright Lottery, 33–35 (discussing gate-keeping in citizenship). 34. Reich, New Property (referring to governmental largesse, such as welfare entitlements, jobs, and subsidies as new property. Reich also used the example of occupational licenses as a form of new property, which creates enhanced earning potential for its holder). 35. Schneiderman v. United States, 320 U.S. 118 (1943). 36. The distinction between the narrow and broad conceptions draws upon C.  B. Macpherson’s extensive writings on property, in par ticu lar, his essay on “Human Rights as Property Rights,” Dissent 24 (1977): 72. The analysis is also influenced by the works of such authors as Gregory Alexander, Commodity and Propriety: Competing Visions of Property in American Legal Thought, 1776–1970 (Chicago: University of Chicago Press, 1997), and Joseph William Singer, Entitlement: The Paradoxes of Property (New Haven, Conn.: Yale University Press, 2000). 37. Blackstone, Commentaries, 2. For a familiar exposition of the narrow view, see Richard A. Posner, Economic Analysis of Law, 7th ed. (New York/ Riverwoods, Ill.: Aspen, 2007). For a sharp critique of this “commodified” understanding of property, see Margaret Jane Radin, Contested Commodities (Cambridge, Mass.: Harvard University Press, 1996). 38. See Alexander, Commodity and Propriety, 2. 39. For a concise overview, see Stephen R. Munzer, “Property as Social Relations,” in New Essays in the Legal and Political Theory of Property, ed. Stephen R. Munzer (Cambridge: Cambridge University Press, 2001), 36. This emphasis on “property as relations” is also consistent with various strands of feminist theory, which frequently foregrounds relationships and relatedness. For an illuminating discussion, see Donna Dickenson, Property in the Body: Feminist Perspectives (Cambridge: Cambridge University Press, 2007). 40. David Jacobson, Rights Across Borders: Immigration and the Decline of Citizenship (Baltimore: Johns Hopkins University Press, 1996) (arguing that postnationalism is breaking the bond between individual and state); Spiro, Beyond Citizenship; Peter H. Schuck, “Membership in the Liberal Polity: The Devaluation of American Citizenship,” Georgetown Immigration Law Journal 3 (1989): 1 (arguing against devaluing); Peter J. Spiro, “Whither Citizenship?” Focus on Law Studies 24 (2009): 1. 41. See, e.g., Joseph William Singer, “The Reliance Interest in Property,” Stanford Law Review 40 (1988): 611; Robert Leckey, “Relational Contract and Other Models of Marriage,” Osgoode Hall Law Journal 40 (2002): 1; Munzer, “Property as Social Relations.” 42. See Nottebohm (Liechtenstein v. Guatemala), ICJ 4, 23 (Apr. 6, 1955). 43. Ibid. 44. Gerald Lopez, “Undocumented Mexican Migration: In Search of a Just Immigration Law and Policy,” UCLA Law Review 28 (1981): 615, 696. 45. Hiroshi Motomura, “We Asked for Workers, but Families Came: Time, Law, and the Family in Immigration and Citizenship,” Virginia Journal of Social Policy and

Notes to Pages 134–136

291

the Law 14 (2006): 103, 250. See also Linda Bosniak, “Being Here: Ethical Territoriality and the Rights of Immigrants,” Theoretical Inquiries in Law 8 (2007): 389. 46. Nottebohm, 23. 47. Tomas Hammar, Democracy and the Nation State: Aliens, Denizens and Citizens in a World of International Migration (Farnham, Surrey, UK: Gower, 1990), 20. 48. Ibid., 20. 49. John Rawls, A Theory of Justice (Cambridge, Mass.: Belknap, 1999), 25. 50. As a supplementary route to citizenship, jus nexi is designed to complement the traditional principles of jus soli and jus sanguinis rather than replace them. Those who have access to American citizenship by virtue of birth or standard naturalization proceedings will not need to resort to the jus nexi principle. 51. See Rainer Bauböck, “Stakeholder Citizenship and Democratic Participation in Migration Contexts,” in The Ties That Bind: Accommodating Complex Diversity in Canada and the European Union, ed. John Erik Fossum, Johanne Poirier and Paul Magnette (Brussels: Peter Lang, 2009). 52. Ibid. 53. See, e.g., Robert A. Dahl, Democracy and Its Critics (New Haven, Conn.: Yale University Press, 1989), 122. See also Christopher L. Eisgruber, “Birthright Citizenship and the Constitution” NYU Law Review 72 (1997): 54 (articulating the importance of the democratic argument in justifying the United States jus soli principle). 54. For critical historical accounts of American citizenship’s racial and gendered exclusions, see, for example, Nancy F. Cott, “Marriage and Women’s Citizenship in the United States, 1830–1934,” American Historical Review 103 (1998): 1,440; Ian F. Haney Lopez, White by Law: The Legal Construction of Race (New York: New York University Press, 1996); Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven, Conn.: Yale University Press, 1997). 55. See Rogers M. Smith, “The Principle of Constituted Identities and the Obligation to Include,” Ethics & Global Policy 1 (2008): 139, 140. 56. The government’s power to remove is never absolute. 57. See Stephen Waddams, Dimensions of Private Law: Categories and Conceptsin Anglo-American Legal Reasoning 57–79 (Cambridge: Cambridge University Press, 2003). 58. See Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton, N.J.: Princeton University Press, 2004), 59, 60–90. Even today, unauthorized migrants may qualify for discretionary relief in the form of “cancellation of removal” for varied reasons, although it is more difficult to obtain today than in the past owing to legislative restriction of this form of relief. These individualized and discretionary mechanisms for regularization differ from “exceptional” and allencompassing legalization programs; the latter are politically far more charged than the former. See Patrick Weil, “All or Nothing? What the United States Can Learn from Europe as It Contemplates Circular Migration and Legalization for Undocumented Migrants,” German Marshall Fund of the United States, Immigration Paper Series, Washington, D.C., May 2010, 10–11. 59. See, e.g., Benhabib, Rights of Others, 220 (“democracy . . . [is] a form of government based upon public autonomy, namely that those subject to the laws are also their authors”); Dahl, Democracy and Its Critics; Joshua Cohen, “Deliberative Democracy and Democratic Legitimacy,” in The Good Polity: Normative Analysis of the State, ed. Alan Hamlin and Philip Petit, 17–34 (New York: Basil Blackwell, 1989).

292

Notes to Pages 137–139

60. The formulation avoids the imposition of status that occurs under ex lege regularization programs. 61. For an influential articulation of this position, see Walzer, Spheres of Justice, 31– 63. Even scholars who hold a more cosmopolitan position than Walzer emphasize the tension between “democratic attachments” that may cross borders and membership boundaries that are defined primarily by sovereign territorial units (operating alone or in concert, as in the European Union). See, e.g., Seyla Benhabib, “Borders, Boundaries, and Citizenship,” PS: Political Science and Politics 38 (2005): 673. 62. As Smith acknowledges, however, “The US Constitution was written behind closed doors by less than five dozen white Christian men who lacked explicit authorization to do so. It nonetheless begins, ‘We the People of the United States . . . do ordain and establish this Constitution.’ This history makes it reasonable to question how far the American Constitution was genuinely constituted by the American ‘people’—but it undeniably played a prominent role in constituting such a ‘people.’ ” See Smith, “The Obligation to Include,” 139. For a powerful account of how the framers could claim to speak as “We the People” despite not being representative of them, see Akhil Reed Amar, America’s Constitution: A Biography (New York: Random House, 2005), 4–53. 63. T. Alexander Aleinikoff, “Aliens, Due Process and ‘Community Ties’: A Response to Martin,” University of Pittsburgh Law Review 44 (1983): 237, 244. 64. As previously explained (note 50), jus nexi is designed to complement the traditional principles of jus soli and jus sanguinis rather than replace them. It will not affect the legal status of those who have access to American citizenship by virtue of birth or standard naturalization rules. 65. See Naturalization Act of 1790, 1 Stat. 103 (1790). The 1790 act also reflected the deeply exclusionary racial and gender barriers of the time: its benefits were restricted to “free white persons.” 66. The main exception to this remarkable continuity is found in the more restrictive 1798 act, which increased the residency requirement to fourteen years in the United States and five years in a state. This more demanding standard was repealed in 1802, when the 1795 standard of five years of residence was restored. 67. Immigration and Nationality Act §316; 8 U.S.C. §1427 (2010). 68. See Ruth Rubio-Marin, Immigration as a Democratic Challenge: Citizenship and Inclusion in Germany and the United States (Cambridge: Cambridge University Press, 2000) (arguing in favor of automatic incorporation into the polity after the passage of a fi xed number of years). See also Dora Kostakopoulou, The Future Governance of Citizenship (Cambridge: Cambridge University Press, 2008) (offering a foundation for citizenship that relies on legal concepts of domicile). 69. The rootedness approach, unlike the extreme versions of the nation-ofimmigrants argument, does not assume that merely “landing” in the territory is sufficient for gaining access to membership. Presence in the territory triggers extensive rights and recognition, but it does not automatically entail access to citizenship, which is more demanding than mere presence and residence, embodying a deeper bond and an experience of becoming a member. 70. Another concern is that automatic formal “imposition” of citizenship title by the country of residence may harm the status of the emigrant in the country of origin if the latter objects to dual nationality.

Notes to Pages 139–150

293

71. See Canada, Report of the Standing Committee on Citizenship and Immigration (Ottawa, 1994), 12. 72. Note that membership here is not automatically bestowed on the person as in a jus domicili regime. Instead, as in naturalization, the stakeholder resident must apply for citizenship and comply with its requirements. In this, it differs from the analysis offered by “territorial inclusion” scholars in the context of regularizing unauthorized immigrants’ status. 73. See Roberto G. Gonzales, Wasted Talent and Broken Dreams: The Lost Potential of Undocumented Migrants (Washington, D.C.: Immigration Policy Center, Oct. 2007), 1. 74. Ibid., 2. 75. Ibid. 76. See Bosniak, Citizen and the Alien, 66. 77. Ibid., 67. 78. See Nicholas P. De Genova, “Migrant ‘Illegality’ and Deportability in Everyday Life,” Annual Reviews of Anthropology 31 (2002): 419, 420. See also Benhabib, Rights of Others, 3, 221. 79. See Motomura, “We Asked for Workers,” 246. 80. See Walzer, Spheres of Justice, 59 (distinguishing between initial entry and second admission); Hammar, Democracy and the Nation State (identifying different “entry gates” on the road to membership). 81. Walzer, Spheres of Justice, 59 (emphasis added). 82. Ibid., 60. 83. Ibid.

Chapter 8. World Government Is Here! An earlier version of this chapter was presented to the April 2010 conference on “Sovereignty and Cosmopolitan Alternatives” of the Penn Program on Democracy, Citizenship and Constitutionalism. I am grateful for comments, then and later, from Peter Schuck, Ayelet Shachar, Rogers Smith, and Lea Ypi. 1. Immanuel Kant, Perpetual Peace, trans. W. Hastie (1785; Edinburgh: T & T Clark, 1891), 114. 2. “A Universal Monarchy by one Power that has overgrown the rest and subjected them to its sway,” as Kant puts it. Kant, Perpetual Peace, First Supplement, 114. 3. That seems to be the source of Rousseau’s concerns. Writing of Saint-Pierre’s proposal, Rousseau says, “Let us not say, then, that, if his system has not been adopted, that is because it was not good. Let us rather say that it was too good to be adopted. Evils and abuses, by which so many men profit, come in of themselves. Things of public utility, on the other hand, are seldom brought in but by force, for the simple reason that private interests are almost always ranged against them. Beyond doubt, a lasting peace is, under present circumstances, a project ridiculous enough. . . . While we admire so fair a project, let us console ourselves for its failure by the thought that it could only have been carried out by violent means from which humanity must needs shrink. No Federation could ever be established except by a revolution. That being so, which of us would dare to say whether the League of Europe is a thing more to be desired or

294

Notes to Pages 151–153

feared? It would perhaps do more harm in a moment than it would guard against for ages” (Jean-Jacques Rousseau, “A Lasting Peace Through the Federation of Europe [1756],” trans. C. E. Vaughan, in Leagues of Nations: Ancient, Mediaeval and Modern, ed. Elizabeth York [London: Swarthmore Press, 1919], 246– 47). Soviet rhetoric about a Bolshevik revolution leading to a world state of that ilk stoked similar fears throughout much of the twentieth century (Elliot R. Goodman, “The Soviet Union and World Government,” Journal of Politics 15:2 [May 1953]: 231–53). 4. Alexander Wendt, “Why a World State Is Inevitable,” European Journal of International Relations, 9:4 (2003): 491–540. 5. David Mitrany, The Progress of International Government (New Haven, Conn.: Yale University Press, 1933); Mitrany, A Working Peace System: An Argument for the Functional Development of International Organization (London: Royal Institute of International Affairs, 1943); Mitrany, The Functional Theory of Politics (London: Martin Robertson, 1975). 6. Robert E. Goodin, “Global Democracy: In the Beginning,” International Theory, 2:2 (July 2012): 175–209. 7. Although some may insist that it is a shared ethos rather than the institutional architecture that prevents tyranny from emerging in stable democracies like the United States, no such shared ethos exists worldwide. 8. There is a theory that all moral judgment is the result of quick, automatic intuitions that reasons then are subsequently offered to rationalize. See Jonathan Haidt, “The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment,” Psychological Review 108:4 (2001): 814–34. Whether this analysis is true in general, there are certainly clear classes of situations in which emotion lead reasons in this way. 9. Contending empires may have had similar ambitions, but they have never managed to become sufficiently universal to be really the same. 10. Goodin, “Global Democracy: In the Beginning.” 11. Together with the “foreign affairs” power, which is obviously irrelevant in the case of world government (at least until we start having diplomatic relations with extraterrestrials). 12. Mark Tushnet, “The Trouble with Federalism,” Good Polity Today symposium, University of Pennsylvania, Philadelphia, 1994, 7. Contrast the Swiss constitutions of 1291 and of 1848, for example. The one in 1291 really was just an alliance among “brothers of the valleys” against outside evildoers and a promise to submit to judicial proceedings (albeit before a magistrate of each one’s own choosing). The 1848 document, in contrast, is recognizably the constitution of a genuine state that claims foreign-affairs powers and military powers for itself and asserts precedence for its laws over those of constituent units. 13. There are, of course, many ways of doing that. For example, the Swiss Confederation established by the 1848 Constitution was prohibited from having a standing army, and cantons were prohibited from maintaining gendarmeries of more than three hundred men. Instead, it provided for a federal army of citizen-soldiers to be called up for military ser vice as needed (Articles XIII, XVIII–XX). 14. In the Swiss constitution of 1848, for example, the only revenue powers claimed for the union were import, export, and transit customs (Articles XXIII– XXVIII).

Notes to Pages 153–154

295

15. That deliberately downplays the “push-pull” factors that are ordinarily the focus of attention—the political agents who are actually pressing for the changes. If institutional “stickiness” of this sort is sufficiently strong, those push-pull factors become less important. In the limiting case, just “occasional accidents” (or “pragmatic responses to sporadic crises”) would be enough. 16. Boringly familiar ones: the path I reckon is most likely to lead to the expansion of world government is the simple functionalist dynamic, which is already perfectly well understood. To say that it is advantageous for everyone concerned is not necessarily to say that it will happen, of course. And there is not any obvious mechanism driving the expanding scope of world government, equivalent to the “one-way ratchet” by which the democratic franchise almost only ever expands and almost never contracts, which drives the dynamics of democratization. See Goodin, “Global Democracy.” While there is no inevitability to the expanding scope of world government, there are nonetheless good functionalist reasons to suppose that that will be the general tendency. 17. Stephen Toulmin, Cosmopolis: The Hidden Agenda of Modernity (New York: Free Press, 1993); Danilo Zolo, Cosmopolis: Prospects for World Government (Cambridge: Polity, 1997). 18. A unitary world government ruling over the whole world is not the proposal on the table in the first instance, anyway. Many hope (and others fear) that there will be an inevitable slide from weaker forms of more decentralized global governance toward ever stronger and more centralized ones. See Tushnet, “Trouble with Federalism,” 1, 10. I will say more of that in my conclusion. 19. To be sure, there are subsequent entries in the bibliography after that, ranging from Einstein’s quixotic pleas to the bombastic 1924 USSR Constitution. See Albert Einstein, “Towards a World Government [1946]” and “Open Letter to the General Assembly of the United Nations [1947]” in Out of My Later Years (New York: Wing), 138– 40, 156– 60. The 1924 USSR Constitution styled itself a “new and decisive advance toward the amalgamation of the workers of all countries into a World Socialist Soviet Republic.” Quoted in Elliot R. Goodman, “The Soviet Union and World Government,” Journal of Politics 15:2 (May 1953): 232. 20. Catherine Lu, “World Government,” in Stanford Encyclopedia of Philosophy, ed. Edward N. Zala (2006), http://plato.stanford.edu/entries/world-government/. 21. “We must aim at a federal constitution of the world, a working world wide legal order, if we hope to prevent an atomic World War,” it read. See Owen J. Roberts et al., “An Open Letter to the American People” (originally published 1945), TEWM, The Electric Web Matrix of Digital Technology, http://www.co-bw.com/Current _open _letter_to_america.htm. 22. Lawrence S. Wittner, “Who’s Afraid of World Government?” HuntingtonNews.net, Nov. 17, 2009, http://www.huntingtonnews.net/columns/091117-wittner -columnspeacevoice.html. 23. “Just as in the case of individual men, Reason would drive [Nations] to give up their savage lawless freedom, to accommodate themselves to public coercive laws, and thus to form an ever-growing State of Nations, such as would at last embrace all the Nations of the Earth. But as the Nations, according to their ideas of international Right, will not have such a positive rational system, and will consequently reject in fact what is right in theory, it cannot be realized in this pure form. Hence, instead of

296

Notes to Pages 154–155

the positive idea of a Universal Republic . . . so shall have as result only the negative surrogate of a Federation of the States averting war, subsisting in an external union, and always extending itself over the world.” Kant, Perpetual Peace, 99–100. 24. William Penn, “An Essay Towards the Present and Future Peace of Europe,” in York, Leagues of Nations, 140. 25. Charles-Irenée Castel, Abbé de Saint-Pierre, “A Project for Settling an Everlasting Peace in Europe [1713],” in York, Leagues of Nations, 170–78; Rousseau, “A Lasting Peace,” 195–247. 26. Henry Sidgwick, The Elements of Politics (London: Macmillan, 1891), 209. 27. Michael Walzer, “Governing the Globe,” Dissent 47:4 (Fall 2000): 44–52. 28. Daniele Archibugi, The Global Commonwealth of Citizens (Princeton, N.J.: Princeton University Press, 2008), ch. 4; David Held, Democracy and the Global Order (Cambridge: Polity, 1995); Raffaele Marchetti, Global Democracy: For and Against (New York: Routledge, 2008), 155– 61. 29. James Bohman, “Living Without Freedom: Cosmopolitanism at Home and the Rule of Law,” Political Theory 37 (2009): 539– 61. 30. George A. Bermann, “Taking Subsidiarity Seriously: Federalism in the European Community and the United States,” Columbia Law Review 94 (1994): 331–456; Christian Kirchner, “Competence Catalogues and the Principle of Subsidiarity in a European Constitution,” Constitutional Political Economy 8 (1997): 171–87; Andreas Føllesdal, “Survey Article: Subsidiarity,” Journal of Political Philosophy 6 (1998): 231–59; Kees van Kersbergen and Bertjan Verbeek, “Subsidiarity as a Principle of Governance in the European Union,” Comparative European Politics 2:2 (August 2004): 142–62. 31. William Penn is at pains to emphasize this: “I am come now to the last objection, that sovereign princes and States will hereby become not sovereign: a thing they will never endure. But this also, under correction, is a mistake, for they remain as sovereign at home as ever they were. Neither their power over their people, nor the usual revenue they pay them, is diminished: it may be the war establishment may be reduced, which will indeed of course follow, or be better employed to the advantage of the public. So that sovereignties are as they were, for none of them have now any sovereignty over one another: And if this be called a lessening of their power, it must be only because the great fish can no longer eat up the little ones.” Penn, “Essay Towards the Present and Future Peace of Europe,” ch. 9, 142. 32. Johannes Althusius, Politics [Politica Methodice Digesta, 1603], trans. Frederick S. Carney (Boston: Beacon, 1964). 33. William H. Riker, “Federalism,” in A Companion to Contemporary Political Philosophy, 2nd ed, ed. Robert E. Goodin, Philip Pettit, and Thomas Pogge, 612–17 (Oxford: Blackwell, 2007). 34. As Madison says in Federalist 14 (1787), “It would not be difficult to show that if [the states] were abolished the general government would be compelled, by the principle of self-preservation, to reinstate them in their proper jurisdiction,” given the impracticalities of administering everything directly from the center (The Federalist, ed. Jacob E. Cooke (Middletown, Conn.: Wesleyan University Press, 1961), 84. 35. In Riker’s classic formulation, a federal union is “a political organization in which the activities of government are divided between regional governments and a central government in such a way that each kind of government has some activities on which it makes final decisions.” See William H. Riker, “Federalism,” in Handbook of

Notes to Pages 155–160

297

Political Science, vol. 5, ed. F. I. Greenstein and N. W. Polsby (Reading, Mass.: Addison-Wesley, 1975), 101; William H. Riker, The Development of American Federalism (Boston: Kluwer, 1987); William H. Riker, “Federalism,” in Goodin et al., ed., Companion to Contemporary Political Philosophy. In Jenna Bednar’s gloss, “Each level of government is sovereign in at least one policy realm [and] this policy sovereignty is constitutionally declared” (The Robust Federation: Principles of Design [Cambridge: Cambridge University Press, 2009], 19). 36. Article IX reads, “The United States in Congress assembles, shall have the sole and exclusive right and power of determining on peace and war.” 37. This statement is true even in the case of written constitutions. There, too, what truly entrenches the constitutional provisions is the attitude that the community at large takes toward its constitution; and that is simply a political “fact of the matter,” too. If the written constitution did not have the requisite sort of standing with the public at large, then the legislature could simply ignore it or replace it at will, disregarding in that process any supermajority requirements that the paper document demands for its own amendment or repeal. 38. Bednar, Robust Federation, 2. 39. Nor are nation-states empowered to undertake a treaty obligation to do so (Vienna Convention on the Law of Treaties, Article 53). 40. But only, notice, under principles of strong subsidiarity. The “responsibility to protect” falls first on the country’s own government, and the international community is empowered to act only if the government fails or refuses to discharge that responsibility. Gareth Evans et al., “The Responsibility to Protect,” Report of the International Commission on Intervention and State Sovereignty, December 2001 (Ottawa: International Development Research Centre and Department of Foreign Affairs and International Trade, Canada). 41. Evans et al., “Responsibility to Protect”; Michael Walzer, Thinking Politically (New Haven, Conn.: Yale University Press, 2007), ch. 14–15. 42. Bednar would deem a system that displayed this property “quasi-federal” on the grounds it lacks the further feature that (“in contrast to the confederation or treaty organization”) in a federal system “each level of government, whether state or federal, enjoys a direct relationship with its citizens. . . . [E]ach governs its citizens directly, so that each citizen is governed by at least two authorities.” Bednar, Robust Federation, 18. See similarly Daniel J. Elazar, “International and Comparative Federalism,” PS: Political Science & Politics 26:2 (June 1993): 190. 43. “Almost all nations observe almost all principles of international law and almost all their obligations almost all of the time,” as Louis Henkin remarks in describing the strength of those norms (How Nations Behave: Law and Foreign Policy [New York: Palgrave, 1968], 42). 44. This is the case of NATO troops today. Desmond Ball refers to “dual-hat commanders” (“Controlling Theatre Nuclear War,” British Journal of Political Science 19 [1989]: 303–27). 45. Pursuant to those powers, Congress enacted the Militia Act of 1792, which provided “that whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States, to call forth such number of the militia of the state or states most convenient to the place of danger or scene of action as he may judge necessary to repel

298

Notes to Pages 160–162

such invasion, and to issue his orders for that purpose, to such officer or officers of the militia as he shall think proper; and in case of an insurrection in any state, against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such state, or of the executive (when the legislature cannot be convened) to call forth such number of the militia of any other state or states, as may be applied for, or as he may judge sufficient to suppress such insurrection” (U.S. Congress, “Militia Act Passed May 2, 1792 Providing for the Authority of the President to Call Out the Militia,” Second Congress, Session 1, Chapter 28). 46. Roy G. Weatherup, “Standing Armies and the Armed Citizens: An Historical Analysis of the Second Amendment,” Hastings Constitutional Law Quarterly 2:4 (Fall 1975): 961–1002. 47. In a 1776 letter to the Continental Congress, Washington writes: “To place any dependence on the Militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender Scenes of domestic life; unaccustomed to the din of Arms; totally unacquainted with every kind of military skill, which being followed by a want of confidence in themselves, when opposed to Troops regularly trained, disciplined, and appointed, superior in knowledge and superior in Arms, makes them timid, and ready to fly from their own shadows. . . . If I was called upon to declare upon Oath, whether the Militia have been most ser viceable or hurtful upon the whole, I should subscribe to the latter. . . . No man who regards order, regularity and economy, or who has any regard for his own honour, character or peace of mind, will risk them upon this issue.” Quoted in Weatherup, “Standing Armies and the Armed Citizens,” 979–80. 48. Richard W. Stewart, ed., American Military History, Vol. 1 (Washington, D.C.: Center of Military History, U.S. Army, 2005), 161. 49. Ibid., 198. 50. Ibid., 201. 51. Ibid., 202. 52. United Nations, “United Nations Peacekeeping Operations: Principles and Guidelines” (New York: U.N. Department of Peacekeeping Operations, Department of Field Support, 2008), 52, Peacekeeping Resource Hub, pbpu.unlb.org/pbps/Library /Capstone_Doctrine_ENG.pdf. See also Marrack Goulding, “The Evolution of United Nations Peacekeeping,” International Affairs 69:3 (July 1993): 455. 53. United Nations, “U.N. Peacekeeping Background Note,” November 2011, United Nations website, http://www.un.org /en /peacekeeping /documents/factsheet .pdf. 54. Alexander Hamilton, “Federalist 12 [1787],” in The Federalist, ed. Jacob E. Cooke (Middletown, Conn.: Wesleyan University Press, 1961), 75. 55. U.S. Congress, “An Act for Laying a Duty on Goods, Wares and Merchandises Imported into the United States,” First Congress, Session 1, Chapter 2, pp. 24–27.. 56. Indeed, they were not exceeded by receipts from individual income taxes and corporation income taxes combined until 1937. U.S. Office of Management and Budget, “Table 2.1: Receipts by Source: 1934–2009,” Budget of the United States Government, Fiscal Year 2006, GPOAccess, www.gpoaccess.gov/usbudget/fy06/pdf/hist.pdf. 57. Similarly, in early U.S. history, Hamilton confessed that he was anxious to enact a Whiskey Tax promptly in order to lay “hold of so valuable a resource of revenue before it was generally preoccupied by the state governments” (Ron Chernow, Alexander Hamilton [New York: Penguin, 2004], 342).

Notes to Pages 162–163

299

58. Scott J. Shackelford, “The Tragedy of the Common Heritage of Mankind,” Stanford Environmental Law Journal 28:1 (2009): 109– 69. 59. It was proposed by one Nobel laureate economist (James Tobin) and endorsed by another (Joseph Stiglitz), as well as by George Soros, Jacques Chirac, Austrian Chancellor Wolfgang Schüsel, former German Chancellor Gerhard Schröder, and an influential 2002 report from Paul Bernd Spahn commissioned by the German Ministry for Economic Cooperation and Development. See Peter Wahl, “From Concept to Reality: On the Present State of the Debate on International Taxes” (Berlin: Friedrich Ebert Stift ung, 2006), 5– 6. Naturally, it is opposed equally vigorously by the fi nancial community. See Jean- Claude Trichet, “Opinion of the Eu ropean Central Bank of 4 November 2004 at the request of the Belgian Ministry of Finance on a Draft Law Introducing a Tax on Exchange Operations Involving Foreign Exchange, Banknotes and Currency,” CON/2004/34 (Frankfurt: Eu ropean Central Bank, 2004). 60. This example is of long standing. Hamilton justified a Whiskey Tax in precisely this way: “If it should tend to diminish the consumption of it, such an effect would be equally favorable to the agriculture, to the economy, to the morals and to the health of the society. There is perhaps nothing so much a subject of national extravagance, as these spirits.” Hamilton, “Federalist 12,” 78. 61. Commission of the European Communities, “New Sources of Financing for Development: A Review of Options,” Commission Staff Working Paper SEC (2005) 467, Brussels, 12; Kofi Annan, “Technical Note No. 3,” Preparatory Committee for the International Conference on Financing for Development, Agenda item 2, United Nations A/C.257/27/Add.3 (2001), GPF Global Policy Forum, www.globalpolicy.org /component/content/article/213/45686.html.; Gillian Brock, Global Justice: A Cosmopolitan Account (Oxford: Oxford University Press, 2009), ch. 5. 62. Annan summarizes the issue nicely: “Until recently, it was normally discussed as if it [the Tobin tax] would have to be assessed and collected when, and in whatever jurisdiction, foreign exchange trades were agreed; and, because trades might be agreed in any country and through any one of a variety of media, this raised doubts over whether enforcement would be possible, at least without near-universal cooperation on the part of Governments. Recent proposals, however, suggest that applying the levy to wholesale trades at the point of bank settlement at a uniform rate would make it possible to collect (without the hazard of avoidance through diversion from taxed to untaxed jurisdictions), provided only that the authorities issuing those currencies acting for the time being as ‘vehicle-currencies’ (five or six at present) would cooperate. This would be the case, it is argued, because virtually all foreign exchange transactions have a vehicle-currency on at least one side and, if all were taxed at the same rate, there would be no reason to switch from one to another. The central bank issuing each of the vehicle-currencies is in a position to collect a tax on payments either into or out of banks within its jurisdiction; to distinguish payments for foreign exchange from those for other transactions; and to require similar information and taxation on any offshore netting system with access to its banks” (“Technical Note,” II, C.1). See also Rodney Schmidt, “Efficient Capital Controls,” Journal of Economic Studies 28:3 (2001): 199–212; Bruno Jetin and Lieven Denys, Ready for Implementation: Technical Aspects of a Currency Transaction Tax and Its Implementation in the EU (Berlin: WEED [World Economy, Ecology, and Development], 2005).

300

Notes to Pages 164–167

63. Onora O’Neill, “The Dark Side of Human Rights,” International Affairs 81 (2005): 427–39. 64. Thomas Nagel, “The Problem of Global Justice,” Philosophy & Public Affairs 33 (2005): 146– 47. Saladin Meckled-Garcia argues that it is not just pointless but worse to talk about global justice in such a situation (“On the Very Idea of Cosmopolitan Justice,” Journal of Political Philosophy 16:3 [September 2008]: 245–71). 65. Margaret Levi, Of Rule and Revenue (Berkeley: University of California Press, 1988). 66. That regime is governed by the Patent Cooperation Treaty (PCT), which was concluded in 1970 and entered into force in 1978. Today it has over 130 signatories, covering virtually all the countries of the world. The regime is administered from Geneva by the World Intellectual Property Organization, with a PCT Union Assembly and a Committee for Technical Cooperation with responsibilities for, among other things, advising the assembly on the appointment of international authorities and on what types of patent documents and other literature should be included by the international authorities carry ing out searches on PCT applications. While the PCT does not itself generate a “world patent,” the mechanisms it establishes greatly speeds the process of obtaining national patents. See Jan Erstling and Isabelle Boutillon, “The Patent Cooperation Treaty: At the Center of the International Patent System,” William Mitchell Law Review 32 (2006): 1583–1601. 67. Susan K. Sell, Private Power, Public Law: The Globalization of Intellectual Property Rights (Cambridge: Cambridge University Press, 2003); Peter Drahos, The Global Governance of Knowledge: Patent Offices and Their Clients (Cambridge: Cambridge University Press, 2010).

Chapter 9. If You Need a Friend, Don’t Call a Cosmopolitan 1. David Held, “Principles of Cosmopolitan Order,” in Gillian Brock and Harry Brighouse, The Political Philosophy of Cosmopolitanism (Cambridge: Cambridge University Press, 2005), 12. 2. Harry Brighouse, “Against Nationalism,” in Rethinking Nationalism, ed. J. Couture, K. Nielsen and M. Seymore (Calgary, Alberta: Calgary University Press, 1998), 365– 405. 3. Christine Sypnowich, “Cosmopolitans, Cosmopolitanism and Human Flourishing,” in Brock and Brighouse, Political Philosophy of Cosmopolitanism, 59. Ayelet Shachar offers a similar argument in her contribution to this volume. 4. A search for books in the WorldCat cata log, with the keyword “cosmopolitanism,” generates two thousand titles, with almost 90 percent of them published since 1990. WorldCat is the database provided by the Online-Computer Library Center that links cata logs from leading research libraries around the world. A keyword search brings up not only books with that word in the title but also books with that word in the table of contents or summary of contents. Limiting the search to the English word means, of course, that most (though not necessarily all) of the books “found” will be in English. Many of the books are actually about cultural, literary, or historical topics rather than contemporary political advocacy or analysis. Still, the current popularity of the term, even for writers focusing on nonpolitical subjects, says something about intellectual fashions of our era.

Notes to Pages 167–171

301

5. John Locke, Second Treatise of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1960), 311. 6. Montesquieu, Spirit of the Laws, trans. Thomas Nugent (New York: Hafner, 1949), 5 (Bk 1, Ch.3) (emphasis added). 7. Alexander Hamilton, James Madison, John Jay, The Federalist Papers, ed. Charles Kesler and Clinton Rossiter (New York: Signet Classic, 2003), No. 1 at 27, No. 6 at 48. 8. See, for example, Jeremy Rabkin, “Grotius, Vattel and Locke: An Older View of Liberalism and Nationality,” Review of Politics 59 (1997): 293–332. The article emphasizes connections between Locke’s doctrine of property and nationality and echoes in Vattel’s version of the law of nations. 9. The 1899 convention was superseded by a revised version that was agreed on at the Hague Peace Conference of 1907. The 1907 version differs only slightly from its predecessor. It is available in a very well-edited collection: Adam Roberts and Richard Guelff, eds., Documents on the Law of War, 3d ed. (Oxford: Oxford University Press, 2003). The International Committee of the Red Cross provides the text of the 1907 convention on its website: http://www.icrc.org /ihl.nsf/full/195. 10. For scholarly surveys of the extreme tactics deployed in these wars, see Manfred F. Boemeke, ed., Anticipating Total War (Cambridge: Cambridge University Press, 1999), with separate essays discussing American measures against the Philippine insurgency, American efforts against Indian tribes on the Great Plains, British war measures in South Africa, and the German army’s efforts in China and southwestern Africa. 11. Frits Kalshoven, “From International Humanitarian Law to International Criminal Law,” Guest Lecture Series of the Office of the Prosecutor, International Criminal Court, The Hague, Netherlands, October 2003. 12. Full texts of the 1977 Additional Protocols along with the 1949 Geneva conventions can also be found in Roberts and Guelff, Documents on the Law of War, and online at the ICRC website. 13. To be perfectly accurate, the 1949 Geneva Conventions included one brief article sketching general humanitarian restraints to be observed in “non-international conflicts”—compared with more than a hundred articles in each of the four conventions applying to international armed confl ict. 14. L. Oppenheim, International Law, Vol. 2, 2d ed., §56 (New York: Longmans, Green & Co., 1912): “To be considered war, the contention must be going on between States [emphasis in original]. . . . It may, of course, happen that a contention arises between the armed forces of a State and a body of armed individuals, but such contention is not war. . . . Nor is a contention with insurgents or with pirates a war.” 15. Jean-Marie Henckaerts and Ouise Doswald-Beck, Customary International Humanitarian Law, Vol. 1 (Cambridge: Cambridge University Press, 2005). 16. Iain Atack, The Ethics of Peace and War, From State Security to World Community (New York: Palgrave, 2005), 157. 17. Human Rights: A Compilation of International Instruments (New York: United Nations, 1994). 18. Mark Osiel, The End of Reciprocity (Cambridge: Cambridge University Press, 2009), chap. 3. “Humanitarian vs. Human Rights Law: The Coming Clash” reviews the debate.

302

Notes to Pages 171–175

19. See, e.g., Louise Doswald-Beck, “The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers,” International Review of the Red Cross 88 (Dec. 2006): 881 at 895–96. The article defends primacy of “humanitarian law” in analogy with claims for primacy by the U.N. Human Rights Committee. 20. Endorsing this view, the European Court of Human Rights has recently asserted that British detention of terror suspects in Iraq must conform to the dueprocess rights guaranteed by the European Convention on Human Rights: Al-Skeini v. UK, Al-Jedda v. UK, 2011. For review of similar claims, by commentators and would-be plaintiffs, see Rene Provost, International Human Rights and Humanitarian Law (Cambridge: Cambridge University Press, 2002), 20–22. 21. For detailed analysis (and criticism) of the ICRC’s “binary” views, see Michael Newton, “Unlawful Belligerency After September 11,” in New Wars, New Laws? ed. David Wippman and Matthew Evangelista (Ardsley, N.Y.: Transnational, 2005), 75–110. 22. Karen De Young, “U.S. Indicts Somali on Terrorism Charges,” Washington Post, July 5, 2011. 23. For the official administration view, see Harold Koh, legal adviser, U.S. Department of State, Annual Meeting, American Society of International Law, Washington, D.C., March 25, 2010 (http://www.state.gov/s/l/releases/remarks/139119.htm). For more on U.N. condemnation, see U.N. Human Rights Council, “Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston: Study on Targeted Killings,” May 28, 2010 (available on website of the UNHRC, http://www2 .ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf). 24. See, for example, Sarah Perrigo and Jim Whitman, The Geneva Conventions Under Assault (London: Pluto, 2010), featuring contributions from ten scholars (most from British universities): the index shows forty-two references to American policy in Iraq and Afghanistan and twenty-two to Israeli practices in dealing with terrorists, but only one reference to Russian practices in Chechnya, none to practices of the Sri Lankan government in its long-standing war with Tamil rebels, and none to Colombia, Congo, Sudan, or other countries torn by confl icts between governments and guerrilla insurgents. The United States might seem the only country in the world that has deployed questionable interrogation tactics: all thirteen references to “torture” are about the United States. 25. Oppenheim, International Law, Vol. 2, §253: “Violations of rules regarding warfare are war crimes only when committed without an order of the belligerent Government concerned. If members of the armed forces commit violations by order of their Government, they are not war criminals and may not be punished by the enemy; the latter may, however, resort to reprisals.” 26. If that seems shocking to modern sensibilities, it may offer some perspective to notice the rules of war issued to troops of the Union Army in the Civil War (the socalled Lieber Code). Among other things, this code provided that when enemy troops denied “quarter” (the chance to surrender without being killed), they would be denied quarter in turn—that is, massacred (Art. 62). The code even provided for the chance to correct mistaken leniency: “Quarter having been given to an enemy by American troops, under a misapprehension of his true character, he may, nevertheless, be ordered to suffer death if, within three days after the battle, it be discovered that he

Notes to Pages 175–178

303

belongs to a corps which gives no quarter” (Art. 66). It should be noted that killing of surrendered enemies is authorized here solely on the basis of affi liation rather than personal conduct. One might call it “collective punishment.” Yet these rules were approved by President Abraham Lincoln, who was not exactly a ruthless militarist. The full code can be found online at the ICRC website. 27. Jean Pictet, quoted in Mark Osiel, Obeying Orders: Atrocity, Military Discipline, and the Law of War (London: Transatlantic, 2009), 110. 28. For example, see Francisco Vitoria, “On the Law of War,” in De Indis et Iure Belle Reflectiones, ed. J. P. Bate (Washington, D.C.: Carnegie Institution, 1917), 52, 184–85. The article notes that “horrors and cruelties . . . such as slaughter and torture of the innocent, rape of virgins and dishonor of matrons” might be justified in a just war “as a deterrent to the enemy or as a spur to the courage of the troops” (that is, a reward for enduring the hardships of a siege). 29. Jean Bodin, Les Six Livres de la République, Vol. 5 (Paris: Fayard, 1986), 178– 79, esp. ch. 6, “La neutralité utile quelquefois.” 30. Hamilton et al., Federalist, no. 11 (attributed to Hamilton) at 82. 31. The preeminent treatise in the eighteenth century put it this way: “Nothing is more honorable in a prince and his Nation than the reputation of inviolable fidelity to a promise.” So, too, “zeal in assisting allies . . . is the source of an immortal glory; it creates the confidence of Nations and thus becomes the certain cause of power and honor” (Emer de Vattel, The Law of Nations, Book II, chap. 12, §163, trans. Charles Fenwick [Washington, D.C.: Carnegie Institution, 1916], 163). 32. Hamilton cautioned that when nations provide benefits to other nations, “the predominant motive” is their own “interest or advantage,” but he then immediately disavowed the seeming implication that the United States should follow “a policy absolutely selfish”: he called for Americans to embrace “a policy regulated by their own interest, as far as justice and good faith permit” [emphasis added] (“Pacificus,” no. 4, in Pacificus-Helvidius Debates of 1793–94, ed. Morton Frisch [Indianapolis: Liberty Fund, 2007], 33). 33. Oppenheim, International Law, 20–23. 34. This was certainly Churchill’s view. In the late 1930s, the Dutch prime minister assured Churchill that the Dutch would “confront an invader with impassable water obstacles. But this was nonsense.” In May 1940, “the Germans broke through [Dutch defenses] at every point. . . . The Dutch hope that they would be by-passed . . . [as in the World War I] was vain.” So too with the Belgians: “Their only chance of defending their frontier against a German attack lay in a close alliance with France and Britain. . . . But the Belgian Government deemed that their safety lay in the most rigid neutrality and their only hope was founded on German good faith and respect for treaties” (Winston S. Churchill, Their Finest Hour [Boston: Houghton Mifflin, 1949], 34–35). 35. In the Netherlands, 75 percent of the prewar Jewish population had been murdered by the end of the war—nearly twice the percentage in neighboring Belgium, three times that in France, and nearly four times that in Italy. The Dutch civil ser vice dutifully followed German directives to identify and register Dutch Jews. Dutch police dutifully rounded up (and, when necessary, hunted down) those so tagged. Dutch railway workers dutifully arranged for their shipment to killing sites outside the country.

304

Notes to Pages 178–180

And all of this unrelenting collaboration with mass murder took place without a word of protest or warning from the Dutch government in exile or senior Dutch administrators in the capital. The fullest account is provided by Jacob Presser, The Destruction of Dutch Jews (New York: Dutton, 1969 [English trans. of the original text; published in Dutch in 1965 as Ondergang]); see esp. pp. 329– 66 (documenting the failure of the Dutch government in exile to react in any way to the genocide), pp. 348–57 (about the full cooperation of senior Dutch administrators and Dutch police in the genocide), and pp. 456–58 (concerning the total cooperation of Dutch railway administrators and workers in transportation requirements of the genocide). This uniquely high degree of collaboration in the genocide is particularly striking because the Netherlands had been famous for its religious tolerance before the war. But the Dutch proved more committed to avoiding conflict. 36. In the House of Commons debate on September 2, 1939—when it was still uncertain whether the Chamberlain government would honor Britain’s guarantee to Poland by declaring war on Germany—Arthur Greenwood, speaking for the opposition Labour Party, warned, “Every minute’s delay now means the loss of life, imperiling of our national interests . . .” He was then interrupted by a Conservative bank-bencher who shouted “Honour.” Greenwood continued, “Let me finish my sentence. I was going to say imperiling the very foundations of our national honour.” The historian Martin Gilbert, after reporting this exchange, commented: “The invocation of honor hit at appeasement where it was most weak. The appeasers claimed to have sought a sensible, rational policy. The moral problem had been too much for them. Any accusation that they were acting with dishonor was difficult to answer. It might seem sensible to refuse to go to war for Poland. It could not be honorable” (The Appeasers [Boston: Houghton Mifflin, 1963], 317). 37. During the early 1950s, the Polish government delayed implementing Stalinist directives on collectivizing agriculture and asserting complete Communist control over the churches. In 1956, the new Kremlin boss, Nikita Khrushchev sent tanks to Budapest to suppress a revolt in Hungary and demanded strict compliance from all other Communist governments in Eastern Europe, except Poland’s: “The Poles were prepared to fight and the Soviets respected Polish courage if nothing else” (Norman Davies, God’s Playground: A History of Poland, Vol. 2 [Oxford: Clarendon, 1981], 585). 38. John Metzler, in Trans-Atlantic Divide (Lanham, Md.: University Press of America, 2010), 68–78, reviews major episodes in European resistance to Reagan policies as risking (in the view of many Europeans) “a new Cold War”—on the apparent assumption that the original cold war had somehow ended at some time in the Brezhnev era. 39. Robert Reid, “Netherlands Becomes First NATO Country to End Its Combat Mission in Afghanistan,” Washington Post, Aug. 2, 2010. 40. After Israel’s military operations in Gaza in January 2009—in response to months of rocket attacks launched at Israel from Gaza—the U.N. Human Rights Council commissioned an investigation into “Israeli war crimes.” The U.S. delegate to the United Nations denounced the ensuing “Goldstone report” as “deeply flawed” because of its “unbalanced focus on Israel, the negative inferences it draws about Israel’s intentions and actions, its failure to deal adequately with the asymmetrical nature of the Gaza conflict, and its failure to assign appropriate responsibility to Hamas

Notes to Pages 180–182

305

for deliberately targeting civilians and basing itself and its operations in heavily civilian-populated urban areas” (Statement by Ambassador Alejandro Wolff on UN General Assembly Resolution on Gaza Fact-Finding Mission, in UNGA Special Session, New York, Feb. 26, 2010). The U.S. House of Representatives then voted 344 to 36 to condemn the same report, urging the president and secretary of state to oppose “unequivocally” any further consideration of the report in “multilateral fora” (H.R. 867, Nov. 3, 2009). The European Parliament subsequently voted by a large margin to endorse the Goldstone report (Leigh Phillips, “Despite Heavy Lobbying, EU Parliament Endorses Goldstone Report,” EUObserver, Oct. 3, 2010). (The article mentions only “lobbying” by “Jewish groups.”) 41. Jeremy Rabkin, “Aggression Outlawed!” Weekly Standard, Aug. 14, 2010. 42. A month into the air campaign, Britain’s defense minister assured a parliamentary inquiry that NATO “would set our assessment of acceptable civilian casualties as close to zero as was possible to be.” One of his top military aides explained that targeting decisions were made only after considering “very carefully the issues of necessity, proportionality and legality,” based on “legal advice” from “legal advisers and fundamentally back to the [UK] Attorney General” (“Operations in Libya,” House of Commons, Defence Committee, April 27, 2011 [transcript available at www.parliament.uk]). 43. “NATO’s Teachable Moment” (editorial), New York Times, Aug. 30, 2011. 44. David Rennie, “EU Commissioner Urges European Press Code on Religion,” Telegraph (UK), Feb. 9, 2006. The article reported the comments of European Commission Vice-President Franco Frattini, calling on European media to “give the Muslim world the message: we are aware of the consequences of exercising the right of free expression, we can and we are ready to self-regulate that right.” 45. Hirsi Ali gives her version of what happened in Nomad (New York: Free Press, 2010), 97–104. She insists that the official reason for revoking her citizenship— that she had misrepresented her reasons for fleeing Somalia in her initial appeal for asylum years before—were a pretext. There was sufficient protest in Parliament that the government was forced to restore her citizenship. But meanwhile, a Dutch court ordered her to move out of her apartment on the grounds that her presence might draw terror attacks on the building, thereby endangering the human rights of her neighbors. She traces the roots of the episode to “the nature of Dutch politics”: “In Holland, you must negotiate and compromise; your freedom of speech is limited by the boundaries of what is viewed [by the political elite] as acceptable” (104). 46. Yair Ettinger, “Netanyahu, Shalom Critical . . . Hague Mayor: Israel’s Embassy Jeopardizing Public Order by Giving Terror Victims’ Portraits to Groups Planning Protest,” Haaretz, Feb. 19, 2004. 47. John Vinocur, “With Muslims, Europe Sees No Problem,” New York Times, January 3, 2011. 48. Theodore Dalrymple, The New Vichy Syndrome: Why European Intellectuals Surrender to Barbarism (New York: Encounter, 2010). “When, in the wake of the Danish cartoon affair, the Danish embassy in Damascus was attacked with the obvious connivance of the Syrian government, how did, how could, Europe respond? The impression was given, and it was a correct one, that Europe had no means of dealing with a couple of cunning and treacherous mullahs who stirred up trouble for Denmark, other than by virtually giving in to demands that certain important subjects henceforth be placed, de facto, off limits for discussion. . . . The quiet lie was clearly preferred

306

Notes to Pages 182–187

to the costs of securing a free one; if only we appeased enough, there would peace in our time” (7). 49. In the decade after the 9/11 attacks, public opinion in much of Europe was inclined to blame Islamist terror on provocation from the United States and Israel. A 2003 Eurobarometer survey for the European Commission found, for example, that some 60 percent of Europeans regarded “Israel” as a “threat to world peace”—a higher percentage than for Iran, North Korea, or any other nation. The highest percentage of respondents citing Israel as a “threat” (74 percent) was found in the Netherlands. Solid majorities in most countries surveyed also deemed the United States a “threat to world peace” (Ambrose Evans-Pritchard, “Israel Is No. 1 Threat to Peace, EU Survey,” Telegraph [UK], Nov. 4, 2003). Such attitudes may have deeper roots than current cosmopolitan doctrine or even current anxieties about provoking other “threats to peace.” Andrei Markovits, in Uncouth Nation, Why Europe Dislikes America (Princeton, N.J.: Princeton University Press, 2007), traces European disdain for American culture, commerce, and democracy back to the eighteenth century. European dependence on America in the twentieth century has probably aggravated older resentments. And, of course, hostility to “Israel” among Europeans long predates the creation of the modern state. It may be that champions of “humanity” and other universal creeds are bound to regard par ticu lar nations, particularly those distinguished by courage and determination, with suspicion and resentment. 50. Peter Spiro, Beyond Citizenship, American Identity After Globalization (Oxford: Oxford University Press, 2008), 6. 51. Ibid., 117. 52. Ibid., 120. 53. Ibid., 113. 54. “UN Rights Body Passes Islamophobia Resolution,” Al Arabiya News, Mar. 25, 2010. 55. Spiro, Beyond Citizenship, 134. 56. Thomas Pogge, Freedom from Poverty as a Human Right: Who Owes What to the Very Poor? (Oxford: Oxford University Press, 2007). 57. Ibid., 307. 58. Ibid., 356. 59. Ibid., 46. 60. In 2011, the lead human-rights body at the United Nations, the Human Rights Council, embraced among its members Libya (elected under the Gaddafi regime), Saudi Arabia, Russia, China, Pakistan, Bahrain, and Kyrgyzstan. 61. Pogge, Freedom from Poverty, 27. 62. Gillian Brock, Global Justice: A Cosmopolitan Account (Oxford: Oxford University Press, 2009), 282, 268. 63. Thomas Pogge, World Poverty and Human Rights: Cosmopolitan Responses and Reforms, (Cambridge: Polity, 2005), 145. 64. Thomas Mertens, “International or Global Justice? Evaluating the Cosmopolitan Approach,” in Real World Justice, ed. Andreas Follesdal and Thomas Pogge (Dordrecht: Springer, 2005), 85–102: “The analogy suggested by Pogge and others between the situation of ordinary citizens of the rich countries with regard to starvation and world hunger and the situation of ordinary Germans in Nazi Germany with regard to the Holocaust . . . would suggest that understanding how the Holocaust was

Notes to Pages 190–196

307

possible may enable us to understand widespread indifference to world hunger” (100–101).

Chapter 10. The Physico-Material Bases of Cosmopolitanism 1. Hannah Arendt, “Introduction into Politics,” in The Promise of Politics, ed. Jerome Kohn (New York: Schocken, 2005), 186–87; and the German edition, Was ist Politik? Fragmente aus dem Nachlaß, ed. Ursula Ludz (Munich: Piper, 1993), 118–19. 2. Gilles Deleuze and Félix Guattari were the most prominent theorists who celebrated deterritorialization, which they recast in ontological terms as the flux of forces and intensities that undermine the restrictive ordering of social life through processes of coding. They regarded the globalization of capital as a positive example of decoding and deterritorialization because by releasing the universal equivalent, capital sets off molecular quantum flows that escape the overcoding and reterritorialization of the modern centralized-state apparatus. See Deleuze and Guattari, Anti-Oedipus: Capitalism and Schizophrenia, trans. Robert Hurley et al. (Minneapolis: University of Minnesota Press, 1983), 224. The term deterritorialization was popu larized in socialscientific discourse by Arjun Appadurai, “Disjuncture and Difference in the Global Cultural Economy,” Public Culture 2:2 (1990): 1–24. 3. Michael Hardt and Antonio Negri, Empire (Cambridge, Mass.: Harvard University Press, 2000), 397. 4. Ulrich Beck, “Cosmopolitan Realism: On the Distinction Between Cosmopolitanism in Philosophy and the Social Sciences,” Global Networks 4:2 (2004): 131– 56, quote on 133–34. See also Ulrich Beck, Cosmopolitan Vision (London: Polity, 2006). 5. Ulrich Beck, World at Risk, trans. Ciaran Cronin (London: Polity, 2009), 5. 6. Ibid., 7–8. 7. Ibid., 15. 8. Beck, “Cosmopolitan Realism,” 153. “Dialogic imagination” is emphasized in the original. I have added the emphasis to “forces.” 9. In Kant’s philosophy, although regulative ideas can never be actualized in experience, they nevertheless have a practical efficacy. They can be used by practical reason as archetypes (Urbild) or projected goals to guide our conduct as historical actors. Writing on the idea of the perfect civil constitution, Kant observes that “even though this may never come to pass, the idea of this maximum is nevertheless wholly correct when it is set forth as an archetype, in order to bring the legislative constitution of human beings ever nearer to a possible greatest perfection” (Immanuel Kant, Critique of Pure Reason, trans. and ed. Paul Guyer and Allen W. Wood [Cambridge: Cambridge University Press, 1997], B 373–74, 397; Kritik der reinen Vernunft 1, Werkausgabe 3, ed. W. Weischedel [Frankfurt am Main: Suhrkamp, 1968], 324). 10. Immanuel Kant, Toward Perpetual Peace: A Philosophical Project, in Practical Philosophy, trans. and ed. Mary Gregor (Cambridge: Cambridge University Press, 1996), 330–31; and the German edition, “Zum ewigen Frieden: Ein philosophischer Entwurf,” in Werkausgabe 11, ed. W. Weischedel (Frankfurt am Main: Suhrkamp, 1968), 216–17. 11. Ibid., 322; 203. 12. Ibid., 346– 47; 243– 44.

308

Notes to Pages 197–202

13. Immanuel Kant, Critique of the Power of Judgment, trans. Paul Guyer and Eric Matthews (Cambridge: Cambridge University Press, 2000), §60, 229; and the German edition, Kritik der Urteilskraft, ed. Wilhelm Weischedel (Frankfurt am Main: Suhrkamp, 1968), 300. 14. Ibid., §83, 301; 392. 15. Kant, Toward Perpetual Peace, 333; 221. 16. Karl Marx and Friedrich Engels, The German Ideology, trans. C. J. Arthur (New York: International, 1970), 42; and the German edition, Die Deutsche Ideologie, Marx/Engels Gesamtausgabe, ed. V. Adoratskij (Berlin: Marx-Engels Verlag, 1932), Vol. 1: 5, 10. 17. “By producing their means of subsistence men are indirectly producing their material life. The way in which men produce their means of subsistence depends first of all on the nature of the means of subsistence they find in existence and have to reproduce. This mode of production must not be considered simply as being the reproduction of the physical existence of the individuals. Rather it is a determinate [bestimmte] form of activity of these individuals, a determinate form of expressing their life [eine bestimmte Art, ihr Leben zu äußern], a determinate mode of life on their part. As individuals express their life, so they are [Wie die Individuen ihr Leben äußern, so sind sie]. What they are, therefore, coincides with their production, both with what they produce and with how they produce. What the individuals are thus depends on the material conditions determining their production” (ibid., 42; 10–11, translation modified). 18. Ibid., 50; 19, translation modified. 19. Karl Marx, Grundrisse: Foundations of the Critique of Political Economy, trans. Martin Nicolaus (Harmondsworth, U.K.: Penguin, 1993), 84. 20. Marx and Engels, German Ideology, 56; 24: “Only with this universal development of productive forces is a universal intercourse [universeller Verkehr] between men established, which produces in all nations simultaneously the phenomenon of the ‘propertyless’ mass (universal competition), makes each nation dependent on the revolutions of the others, and finally has put world-historical, empirically universal [empirisch universellen] individuals in place of local ones.” 21. Ibid., 57; 25–26. 22. Ibid., 91–92; 56–57. Cf. “The social power [Die soziale Macht], i.e. the multiplied productive force, which arises through the co-operation of different individuals as it is conditioned by the division of labour, appears to these individuals, since their cooperation is not voluntary but has come about naturally, not as their own united power [eine eigne, vereinte Macht], but as an alien force existing outside them [eine fremde, außer ihnen stehende Gewalt], of the origin and goal of which they are ignorant, which they thus cannot control [beherrschen], which on the contrary passes through a peculiar series of phases and stages independent of the will and the action of man, nay even being the prime governor of these” (ibid., 54; 23–24). 23. Ibid., 92; 57. 24. Karl Marx, Capital: A Critique of Political Economy, Vol. 3, trans. David Fernbach (Harmondsworth, UK: Penguin, 1981), 959; and the German edition, Das Kapital, Vol. 3, Karl Marx Friedrich Engels Gesamtausgabe, ed. Institut für MarxismusLeninismus (Berlin: Dietz, 1973–), II, 4.2: 838. 25. Nikolas Rose, Powers of Freedom: Reframing Political Thought (Cambridge: Cambridge University Press, 1999), 96.

Notes to Pages 202–209

309

26. Michel Foucault, “Truth and Juridical Forms,” in Power: Essential Works of Foucault 1954–1984, Vol. 3, ed. James Faubion (New York: New Press, 2000), 86–87. 27. Marx and Engels, German Ideology, 42– 43; 11, translation modified. 28. Marx, Grundrisse, 100. 29. Karl Marx, “Economic and Philosophical Manuscripts,” in Early Writings, trans. Rodney Livingstone and Gregor Benton (Harmondsworth, UK: Penguin, 1975), 335; and the German edition, Ökonomisch-philosophische Manuskripte (Zweite Wiedergabe), in Karl Marx Friedrich Engels Gesamtausgabe, ed. Institut für MarxismusLeninismus (Berlin: Dietz, 1982), I.2: 376–77. 30. Michel Foucault, Security, Territory, Population: Lectures at the College de France, 1977–78, trans. Graham Burchell (Hampshire, U.K.: Palgrave Macmillan, 2007), 21. For Foucault, “population” acquires a positive meaning in the seventeenth century when it is the dynamic of the strength of the state and the sovereign. 31. Ibid., 75. 32. Ibid., 79. 33. Ibid., 350. 34. See Michel Foucault, The Birth of Biopolitics: Lectures at the College de France, 1978–79, trans. Graham Burchell (Hampshire, UK: Palgrave Macmillan, 2008), 295–96. 35. My interpretation of Foucault’s account of biopolitics needs to be distinguished from Michael Hardt and Antonio Negri’s characterization of biopolitics in terms of intellectual labor and its role in the formation of the multitude, as well as Giorgio Agamben’s account of biopolitics as a dynamic of inclusive exclusion. Biopower is about optimal inclusiveness, and it operates at the physical-material level of the shaping of populations through the milieu of their existence. See Hardt and Negri, Empire, and Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Palo Alto: Stanford University Press, 1998). 36. Foucault, Birth of Biopolitics, 277. 37. “International Development Strategy for the Third United Nations Development Decade,” General Assembly, Thirty-Fift h Session, UN Doc. A/RES/35/56 (December 5, 1980), para. 8 (can be accessed at www.un.org). 38. International Covenant on Economic, Social and Cultural Rights (ICESCR), Art. 2(1): “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures” (G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966), 993 U.N.T.S. 3). 39. ICESCR, Art. 13(1): “Education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. . . . [E]ducation shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace” (ibid.). 40. See Declaration on the Right to Development, Art. 2(3): “States have the right and the duty to formulate appropriate national development policies that aim at

310

Notes to Pages 210–215

the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting therefrom”; Art. 3(1): “States have the primary responsibility for the creation of national and international conditions favourable to the realization of the right to development” (U.N. Doc. A/RES/41/128 [December 4, 1986]). 41. See Arnel de Guzman, “Protection of the Rights of Migrant Workers in the Philippines,” in Human Rights of Migrant Workers: Agenda for NGOs, ed. Graziano Battistella (Quezon City, Philippines: Scalabrini Migration Center, 1993), 109.

Chapter 11. Citizens of the Earth 1. Carl Schmitt, Nomos of the Earth in International Law of Jus Publicum (New York: Telos, 2006). 2. Evelyn Edson, Mapping Time and Space: How Medieval Mapmakers Viewed Their World (London: British Library Board, 1999). 3. David Harvey, The Condition of Postmodernity: An Enquiry into the Origins of Cultural Change (London: Wiley-Blackwell, 1991) 4. Tim Ingold, The Perception of Environment: Essays in Livelihood, Dwelling and Skill (London: Routledge, 2000), 133. 5. Helen Verran, “The Educational Value of Explicit Noncoherence: Soft ware for Helping Aboriginal Children Learn About Place in Education and Technology,” in Critical Perspectives, Possible Futures, ed. David W. Kritt and Lucien T. Winegar, 101–124 (Lanham, Md.: Lexington Books, 2007). 6. Elizabeth A. Povinelli, “The Poetics of Ghosts: Social Reproduction in the Archive of the Nation,” in The Cunning of Recognition: Indigenous Alterities and the Making of Australian Multiculturalism, 187–234 (Durham, N.C.: Duke University Press, 2002). 7. Immanuel Kant, “Perpetual Peace: A Philosophical Sketch,” in Kant, Political Writings, ed. H. S. Reiss, 93–130 (Cambridge: Cambridge University Press, 1991). 8. Patchen Markell, Bound by Recognition (Princeton, N.J.: Princeton University Press, 2003). 9. Dale Turner, This Is Not a Peace Pipe: Towards a Critical Indigenous Philosophy (Toronto: University of Toronto Press, 2009). 10. Sandy Grande, Red Pedagogy: Native American Social and Political Thought (Lanham, Md.: Rowman and Littlefield, 2004). 11. Benedict Anderson, Imagined Communities: Reflections of the Origin and Spread of Nationalism (London: Version, 1990); John Kelly and Martha Kaplan, Represented Communities: Fiji and World Decolonization (Chicago: University of Chicago Press, 2001). 12. Benedict Anderson, “Western Nationalism and Eastern Nationalism: Is There a Difference?” New Left Review 9 (May–June 2001): 31– 42. 13. Susan Scheckel, The Insistence of the Indian: Race and Nationalism in Nineteenth-Century American Culture (Princeton, N.J.: Princeton University Press, 1998), 16. 14. Ibid., 17.

Notes to Pages 215–223

311

15. Jeremy Waldron, “Indigeneity? First Peoples and Last Occupancy,” New Zealand Journal of Public and International Law 1 (2003): 55; Waldron, “The Half-Life of Treaties: Waitangi, Rebus Sic Stantibus,” Otago Law Review 11 (2006): 161. 16. Richard Rorty, “On Ethnocentrism: A Reply to Clifford Geertz,” in Objectivity, Relativism, and Truth: Philosophical Papers, Volume 1, 203–210 (Cambridge: Cambridge University Press, 1991). 17. Walter Benjamin, “Critique of Violence,” in Reflections: Essays, Aphorisms, Autobiographical Writings, trans. Edmund Jephcott, 277–300 (New York: Schocken Books, 1986). 18. Waldron, “Half-Life of Treaties.” 19. Benjamin Lee, “The Performativity of Foundations,” in Talking Heads: Language, Metalanguage and the Semiotics of Subjectivity, 321–346 (Durham, N.C.: Duke University Press, 1997). 20. Roger Downey, Riddle of the Bones: Politics, Science, Race, and the Story of Kennewick Man (New York: Springer, 2000). 21. Jeremy Waldron, “Indigeneity? First Peoples and Last Occupancy,” New Zealand Journal of Public Law, 17. 22. Waldron, “Half-Life of Treaties.” 23. Waldron, “Half-Life of Treaties.” 24. Patrick Wolfe, “Genocide and Settler Society: Frontier Violence and Stolen Indigenous Children in Australian History,” Journal of World History 16:4 (December 2005): 502–505; Glen Coulthard, “Subjects of Empire: Indigenous Peoples and the ‘Politics of Recognition’ in Canada,” Contemporary Political Theory 6:4 (2007): 437– 460; J. Kehaulani Kauanui, Hawaiian Blood: Colonialism and the Politics of Sovereignty and Indigeneity (Durham, N.C.: Duke University Press, 2008). Audra Simpson, “Subjects of Sovereignty: Indigeneity, The Revenue Rule and Juridics of Failed Consent,” Law and Contemporary Problems 71 (2008): 191–215. 25. Thomas Nagel, The View from Nowhere (Oxford: Oxford University Press, 1989). 26. Elizabeth A. Povinelli, The Empire of Love: Towards a Theory of Intimacy, Genealogy, and Carnality (Durham, N.C.: Duke University Press, 2002). 27. Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London: Verso, 2006). 28. Georg Simmel, “The Stranger,” in The Sociology of Georg Simmel, trans. and ed. Kurt H. Wolf, 402– 408 (New York: Free Press, 1976). 29. Robert Nichols, “Postcolonial Studies and the Discourse of Foucault: Survey of a Field of Problematization,” Futures 9, no. 9 (2010): 111– 44. 30. Vine Deloria, Nations Within: The Past and Future of American Indian Sovereignty (Austin: University of Texas Press, 1998); Dale Turner, This is Not a Peace Pipe: Towards a Critique of Indigenous Philosophy (Toronto: University of Toronto Press, 2006); Deborah Bird Rose, Dingo Makes Us Human: Life and Land in an Australian Aboriginal Culture (Cambridge: Cambridge University Press, 2000); Irene Watson, “Assimilation Agendas of the State: What Space Remains for Aboriginal Law and Culture?” in Indigenous Identity and Activism, ed. Priti Singh, 124–137 (New Delhi: Shipra, 2009). 31. David Harvey, Cosmopolitanism and the Geographies of Freedom (New York: Columbia University Press, 2009).

312

Notes to Pages 223–231

32. Martha Nussbaum, For Love of Country? ed. Joshua Cohen (Boston: Beacon, 2002), 12. 33. Anthony Appiah, Cosmopolitanism: Ethics in a World of Strangers (New York: W. W. Norton, 2007). 34. Bernard Williams, Ethics and the Limits of Philosophy (Cambridge, Mass.: Harvard University Press, 1985).

Chapter 12. The Idea of Global Citizenship This chapter was first given as the annual Warrender Lecture at the University of Sheffield on November 26, 2009. A revised version was presented to the annual conference of the Penn DCC Program on “Sovereignty, Territoriality, and Plural Citizenship” at the University of Pennsylvania on May 30, 2010. I should like to thank members of both audiences for their helpful questions that have prompted significant revisions to the text, and also Neal Carrier for his research assistance. 1. I have considered and rejected the idea that world government could be democratic in “Against Global Democracy,” in After the Nation: Critical Reflections on Post-Nationalism, ed. Keith Breen and Shane O’Neill, 141– 60 (Basingstoke, U.K.: Palgrave Macmillan,2010). For a contrasting view, defending world government, though without addressing the issue of democracy specifically, see Robert Goodin, “World Government Is Here!” in this volume. 2. Hannah Arendt, “Karl Jaspers: Citizen of the World?” in Men in Dark Times, 81–94 (London: Cape, 1970). 3. See for example Karl Jaspers, The Origin and Goal of History, trans. M. Bullock (London: Routledge and Kegan Paul, 1953); Jaspers, The Great Philosophers, ed. Hannah Arendt, trans. R. Manheim (London: Hart-Davis, 1962). 4. Arendt, “Karl Jaspers,” 81–82. 5. Ramin Jahanbegloo, Conversations with Isaiah Berlin (London: Phoenix, 1993), 82. 6. Cicero, On Duties, ed. M. T. Griffin and E. M. Atkins (Cambridge: Cambridge University Press, 1991), 21–24. 7. Ibid., 22. 8. Ibid., 21. 9. There is some debate about whether Diogenes meant his assertion to be purely negative or whether he was also affirming some positive identity: see the discussion in William Desmond, Cynics (Berkeley/Los Angeles: University of California Press, 2008), 199–207. Desmond suggests that in its positive aspect, Cynic cosmopolitanism “is not simply or even primarily political, ethical or cultural in register” (204), but expresses rather a sense of oneness with the cosmos understood as the whole of the natural world. 10. Cicero, On Duties, 9. 11. Ibid., 22. 12. Marcus Aurelius, The Meditations of Marcus Aurelius Antoninus, trans. A. S. L. Farquarson, ed. R. B. Rutherford (Oxford: Oxford University Press, 1989). 13. Ibid., 24. 14. See Anthony Birley, Marcus Aurelius: A Biography, 2d ed. (London: Batsford, 1987), ch. 8.

Notes to Pages 232–238

313

15. I am indebted here to Bernard Williams’s idea that what distinguishes a political relationship from one of pure coercive power is that the former meets what he calls a “Basic Legitimation Demand,” whereby those subject to power are given reasons for their subjection. See Williams, “Realism and Moralism in Political Theory,” in In the Beginning Was the Deed, ed. G. Hawthorn (Princeton, N.J.: Princeton University Press, 2005). 16. For more on the contrast, see my essay “Citizenship and Pluralism,” Political Studies 43 (1995): 432–50; reprinted in David Miller, Citizenship and National Identity (Cambridge: Polity, 2000). 17. David Miller, “Bounded Citizenship,” in Cosmopolitan Citizenship, ed. Kimberly Hutchings and Roland Dannreuther, 60–80 (London: Macmillan, 1999); reprinted in Miller, Citizenship and National Identity. 18. John Rawls, A Theory of Justice, revised edition (Cambridge, Mass.: Harvard University Press, 1999), 4. 19. See Martha Nussbaum, “Kant and Stoic Cosmopolitanism,” Journal of Political Philosophy 5 (1997): 1–25. 20. See Immanuel Kant, The Metaphysics of Morals, trans. M. Gregor (Cambridge: Cambridge University Press, 1996), §43– 62; Kant, Perpetual Peace: A Philosophical Sketch, in Kant’s Political Writings, trans H. Nisbet, ed. H. Reiss (Cambridge: Cambridge University Press, 1970). 21. Kant, Metaphysics of Morals, §61; Kant, Perpetual Peace, 102–105. 22. Kant, Perpetual Peace, 113. 23. Ibid., 105. 24. See ibid., 114. 25. Catriona McKinnon, “Cosmopolitan Hope,” in The Political Philosophy of Cosmopolitanism, ed. Harry Brighouse and Gillian Brock, 234– 49 (Cambridge: Cambridge University Press, 2005). 26. I should perhaps note here that there are those who are happy to describe the mere recognition of such duties as a form of citizenship. Luis Cabrera, for example, writes that “global citizenship is fundamentally concerned with individual moral requirements in the global frame” (“Global Citizenship as the Completion of Cosmopolitanism,” Journal of International Political Theory 4 [2008]: 85). I shall later give reasons why the notion of citizenship should not be reduced in this way to a matter of individual ethics. 27. The current status of the right to intervene in international law is unclear. See my essay “The Responsibility to Protect Human Rights,” in Legitimacy, Justice and Public International Law, ed. Lukas Meyer, 232–51 (Cambridge: Cambridge University Press, 2009), and especially the sources cited in n. 3 of that essay. 28. For a good discussion of this principle, see Matthew Gibney, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (Cambridge: Cambridge University Press, 2004), ch. 8. 29. Among those who have appealed to participation in global civil society as a form of citizenship are Richard Falk, On Humane Governance: Toward a New Global Politics (Cambridge: Polity, 1995); Mary Kaldor, “Transnational Civil Society,” in Human Rights in Global Politics, ed. Tim Dunne and Nicholas Wheeler, 195–213 (Cambridge: Cambridge University Press, 1999); Nigel Dower, “Situating Global Citizenship,” in The Idea of Global Civil Society, ed. Randall Germain and Michael Kenny, 100–118

314

Notes to Pages 239–245

(London: Routledge, 2005). For a good critical examination, see Kimberly Hutchings, “Subjects, Citizens or Pilgrims? Citizenship and Civil Society in a Global Context,” Germain and Kenny, Idea of Global Civil Society,84–99. See also April Carter, The Political Theory of Global Citizenship (London: Routledge, 2001), ch. 4. 30. Hutchings develops this point more formally, arguing that the global civil society argument rests on the assumption that Habermasian “communicative reason” can stand in place of the institutions of citizenship in guiding participants toward “an essentially liberal moral agenda” (Hutchings, “Subjects, Citizens or Pilgrims?” 96–98). 31. For a thorough discussion of the idea of “stakeholding,” that is being used in this and other similar cases, see Terry Macdonald, Global Stakeholder Democracy (Oxford: Oxford University Press, 2008). 32. I have said a little more in “Democracy’s Domain,” Philosophy and Public Affairs 37 (2009): 203–28. 33. See, for example, the complaints levelled by Andrew Dobson against the ‘Defi nition Secretariat’ who wish to rule out new forms of citizenship by simple defi nitional fiat, in ‘Citizenship’ in Andrew Dobson and Robyn Eckersley (eds.), Political Theory and the Ecological Challenge (Cambridge: Cambridge University Press, 2006), 216–31. Dobson helpfully reminds us that our understanding of citizenship has developed historically as different forms of political life came to be seen as the arenas in which it was practised, but he muddies the water when he says that any form of activity that aims for the common good can qualify as citizenship – see pp. 227–228. 34. This danger is greater with the Diogenesian conception of world citizenship as replacing all other forms of citizenship than with the Ciceronian conception, which treats it as the outer circle in a concentric series; see above. 35. For some discussion of these mechanisms and of why it is wrong to think of them as necessarily having a democratic character, see my essay “Against Global Democracy.”

Chapter 13. Why Does the State Matter Morally? 1. I realize that some of the obligations outlined here will bind even visitors to a state’s territory (#1), while others bind only citizens (#3); and others may bind both citizens and permanent residents. I hope to make it clear as we go along why these differences are justified. In my view, citizens and permanent residents have more binding duties because they have a personal history that gives them a special relationship with the state that tourists do not have. 2. For evidence that this belief is shared, see J. K. Rowling’s editorial criticizing U.K. Tory politician Michael Ashcroft for maintaining a residence for tax purposes in Belize. She notes that she had been advised to do something similar but thought this would be “contemptible” and would violate “her notion of patriotism.” In J. K. Rowling, “Editorial,” Times (London), April 14, 2010. http://www.timesonline.co.uk /tol /comment/columnists/guest _contributors/article7096786.ece. 3. For a discussion of similar annexation cases from which I have benefited, see Andrew Altman and Christopher Wellman, A Liberal Theory of International Justice (Oxford: Oxford University Press, 2009), 14–15. 4. John Rawls, A Theory of Justice (Cambridge, Mass.: Belknap, 1971), 115.

Notes to Pages 246–250

315

5. See Immanuel Kant, The Metaphysics of Morals, ed. Mary Gregor (Cambridge: Cambridge University Press, 1996). Thomas Christiano also offers a natural duty account of authority in The Constitution of Equality (Oxford: Oxford University Press, 2008). A natural duty theory that rests on a duty of samaritanism, not justice, is put forward in A. John Simmons and Christopher Wellman, Is There a Duty to Obey the Law? (New York: Cambridge University Press, 2005), and a natural duty theory that does not entail political obligation is developed in Allen Buchanan, Justice, Legitimacy, and Self-Determination (Oxford: Oxford University Press, 2004). Jeremy Waldron interestingly discusses the challenges faced by natural duty theories in “Special Ties and Natural Duties” (Philosophy and Public Affairs 22 [1993]: 24), and I have been influenced by his account. 6. Simmons calls it the particularity requirement. See A. John Simmons, Moral Principles and Political Obligations (Princeton, N.J.: Princeton University Press, 1981); Simmons and Wellman, Is There a Duty? 7. Ronald Dworkin raises a similar challenge to Rawls’s natural duty theory: “It does not show why Britons have any special duty to support the institutions of Britain. We can construct a practical, contingent argument for the special duty. Britons have more opportunity to aid British institutions than those of other nations whose institutions they also think mainly just. But this practical argument fails to capture the intimacy of the special duty. It fails to show how legitimacy flows from and defines citizenship” (Law’s Empire [Cambridge, Mass.: Harvard University Press, 1986], 193). See also Christopher Wellman, “Political Obligation and the Particularity Requirement,” Legal Theory 10 (2004,) 110. A parallel critique is sometimes put to the Habermasian theory of constitutional patriotism. This theory holds that our commitment to principles of democracy and justice ought to ground our allegiance to our own state. Critics charge that our commitment to democratic justice ought to give us an equal allegiance to every just state. See David Miller, On Nationality (Oxford: Oxford University Press, 1995), 163. 8. A. John Simmons, Justification and Legitimacy (Cambridge: Cambridge University Press, 2001), 137. 9. Kant’s theory of state authority is contained in the first section of the Metaphysics of Morals, often called the Rechtslehre (in the German edition of Kant’s Gesammelte Schriften, ed. Academy of Sciences [Berlin: Walter deGruyter, 1900–]). These numbers are widely noted in the margins of English translations. There is a large literature on Kant’s political philosophy. Sources that treat the issues discussed here, in a way congenial to my interpretation, include Arthur Ripstein, Force and Freedom (Cambridge, Mass.: Harvard University Press, 2009), 145–81; Leslie Mulholland, Kant’s System of Rights (New York: Columbia University Press, 1990), 280–83; and Katrin Flikschuh, “Freedom and Constraint in Kant’s ‘Metaphysical Elements of Justice,’ ” History of Political Thought 20 (1999): 250–71. I discuss Kant’s theory of state authority at much greater length in chapter 2 of Liberal Loyalty: Freedom, Obligation, and the State (Princeton, N.J.: Princeton University Press, 2009). 10. Simmons and Wellman, Is There a Duty? 152. 11. These terms are Thomas Pogge’s. See World Poverty and Human Rights (Cambridge: Polity, 2002), 170–71. 12. Kyla Ebels-Duggan has a nice summary of Kant’s account of state authority in terms of indeterminacy, unilateralism, and assurance (“Moral Community: Escaping

316

Notes to Pages 251–258

the Ethical State of Nature,” Philosopher’s Imprint 9:8 [August 2009]: 1–19). I agree that assurance is an important problem for Kant, but I think it speaks mainly to the state’s monopoly of coercive power rather than the justification of its authority. 13. Waldron, “Special Ties,” 24; Thomas Christiano, The Constitution of Equality (Oxford: Oxford University Press, 2008), 237. 14. Waldron emphasizes the role in this argument of the wrong that occurs when coercion is used on behalf of competing and conflicting views of justice. To be consistent with our right to external freedom, coercion must be reciprocal. See Jeremy Waldron, “Kant’s Legal Positivism,” Harvard Law Review 109 (1996), 1535–1566. 15. Christiano grounds his defense of the authority of democracy partly on similar considerations: “Since there is no defensible natural authority of some sane adults over others, legitimate political authority must be grounded in part in the fact of disagreement among equals” (Constitution of Equality, 236). 16. Someone may object that there is in fact a truth of the matter about what everyone’s rights objectively are, under the best scheme of rules, and that it is this truth that ought to prevail. Indeed, this is probably what each morally well-disposed person in our imagined society thinks, as he attempts to interpret and enforce his own view. We don’t have to deny that there may be a fact of the matter about the best scheme of rules, for it is neither here nor there as far as the problem in our imagined society goes. Since each individual retains the right to interpret justice for himself and to enforce that interpretation, even that true view of right, if there is one, will remain unrealized as long as other people do not share it. 17. Kant, Gesammelte Schriften, vol. 6, 308. 18. In this sense, the limits to the state’s authority are derived from the same value that grounds that authority in the first instance: the value of external freedom. Defending this view requires arguing that there are some acts that are clearly inconsistent with everyone’s external freedom and that we can achieve a greater degree of consensus about what external freedom clearly rules out than on what it ideally requires. But this is a premise I am willing to defend. 19. The next few paragraphs draw on Anna Stilz, “Collective Responsibility and the State,” Journal of Political Philosophy 19:2 (June 2011): 190–208. 20. Kant, Gesammelte Schriften, vol. 8, 290. Of course, most well-ordered states will implement a scheme of civil rights that goes beyond these minimal conditions. But the idea is that a state must grant at least these minimal guarantees to be viewed as a legitimate authority. It is crucial to keep this distinction between ideal justice and minimal legitimacy in view. 21. Ibid. 22. Kant also suggests that a rightful state must guarantee the basic needs of subjects and that the state is entitled to tax the wealthy for the purpose of providing for their poorer fellow citizens (Gesammelte Schriften, Vol. 6, 326). 23. Kant does not require that voting rights be extended to all citizens; he distinguishes between “active citizens,” who can vote for their representatives, and “passive citizens,” who merely enjoy civil rights. He argues that those who are economical ly dependent and have no property or profession fall into the latter category (Gesammelte Schriften, vol. 8, 295). 24. Waldron notes another obligation that the natural duty of justice imposes on foreigners outside a state’s territory: the duty not to undermine its system of crimi-

Notes to Pages 259–264

317

nal law (“Special Ties,” 9). Rawls argues that the natural duty of justice places us under a duty to support the establishment of just institutions where they are not yet in place; this duty is plausibly connected to the duty of assistance to burdened societies that he sets out in his Law of Peoples (Cambridge, Mass.: Harvard University Press, 2001). Finally, we might also think the natural duty of justice gives foreigners a duty not to overthrow just institutions in another country or to set up a competing authority there. 25. Wellman and Simmons, Is There a Duty? 54. 26. On the importance of shared history in giving participants in a relationship a reason to value it, see Thomas Hurka, “The Justification of National Partiality,” in The Morality of Nationalism, ed. Robert McKim and Jeff McMahan, 139–57 (Oxford: Oxford University Press, 1997); Niko Kolodny, “Love as Valuing a Relationship,” Philosophical Review 112:2 (2003): 135–89; Kolodny, “Which Relationships Justify Partiality? The Case of Parents and Children,” Philosophy and Public Affairs 38:1 (2010): 37–75; and Samuel Scheffler, Boundaries and Allegiances (Oxford: Oxford University Press, 2001). Their view is that relationships are constituted not so much by the empirical fact of citizens’ identification with one another as by patterns of shared interaction that create objective ethical reasons for them. 27. Jeremy Waldron, “The Principle of Proximity,” New York University School of Law Working Paper No. 11-08, January 2011; Kant, Gesammelte Schriften, vol. 6, 307. 28. “For a state is not (like the land on which it resides) a belonging (patrimonium). It is a society of human beings that no one other than itself can command or dispose of. Like a trunk, it has its own roots, and to annex it to another state as a graft is to do away with its existence as a moral person and to make a moral person into a thing, and so to contradict the idea of the original contract, apart from which no right over a people can be thought” (Kant, Gesammelte Schriften, vol. 8, 344; emphasis added). 29. H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), 55– 61. 30. Philip Pettit, “Rawls’s Political Ontology,” Politics, Philosophy, and Economics 4 (2005), 157–174; Pettit, “Rawls’s Peoples,” in Rawls’s Law of Peoples: A Realistic Utopia, ed. Rex Martin and David Reidy (Oxford: Blackwell, 2006). 38–55. 31. Kolodny, “Love as Valuing a Relationship,” 163. 32. I should note that a people’s political history is only valuable when it allows them to fulfi ll their natural duty of justice together, by meeting the legitimacy criteria outlined above . Regardless of the strength and thickness of the ties they share, if a group’s cooperation serves purposes of oppression or domination, they do not count as a people and lack self-determination claims. I develop this view at more length in “Nations, States, and Territory,” Ethics, 121:3 (2011), 572– 601.

This page intentionally left blank

Index

Abrams case, 42 Abu Ghraib, 55, 77 accountability: citizenship, global, and, 10–11, 242; democratic, 134–137, 183–184; DREAM Act and, 140; Oxfam and, 239; private actors and, 288n23; rootedness and, 126, 134–137, 139, 146; World Bank and, 185; world government and, 150, 152 Accountability Charter, 239 Adams, John, 40, 41 Aderholt, Harry, 279n12 Adhamiyah, 90–91 Afghanistan, 53, 75–77, 81, 180, 186, 272n41, 302n24 Africa, 32, 58, 169, 170, 187, 301n10. See also specific countries African Americans, 41, 48 Afroyim v. Rusk (1967), 101, 103, 107–108 Agamben, Giorgio, 309n35 aggression, 180–181 Ahmad, Eqbal, 78, 79 air power, 35–36 al-Awlaki, Anwar, 100, 106 al-Maliki, Houri, 91, 93 al-Qaeda (AQ), 81, 88, 89, 100, 172 al-Sadr, Muqtada, 89, 282n51 Aleinikoff, Alexander, 137 Alexander, Gregory, 290n36 Algeria, 46, 77, 80, 81, 85 Algerian War, 46, 47, 77, 78 Ali, Ayaan Hirsi, 181 Alien and Sedition acts, 40, 41, 98 alienation, 199, 201, 203, 308n22

alliances, 179, 294n12. See also specific alliances Althusius, 155 American Bar Association, 55 American Civil Liberties Union (ACLU), 41– 42, 55 American Dream, 141, 142 American Indians, 215, 218, 221–222, 301n10 American Librarians’ Association, 55 American-ness, 121 American Prospect, 37, 282n51 Amnesty International, 238–240 AMS (Association of Muslim Scholars), 89 anarchy, 33, 273n64 Anbar province, 89 Anderson, Benedict, 214, 219, 220 Andreski, Stanislav, 43, 44 Annan, Kofi, 299n62 annexation example, 314n2 Antarctic lands, 162 anthropology, 10, 39, 61, 64– 65, 67, 86, 221, 223, 224 anticolonialism, 21, 24–26, 29, 31, 63, 272n53, 273n63. See also Fanon, Frantz Anti-Federalists, 150 anti-immigrant legislation, 98 antislavery movement, 273n63 antistatism, 29, 276n48 antiterrorism tools, 109 antiwar movements, 45 Apocalypse Now (movie), 67– 68 Appadurai, Arjun, 19, 307n2 appeasement, 177–178, 304n36, 306n48 Appiah, Anthony, 223–224

320

Index

Arab Revolt in Palestine (1934), 83 Arab Spring, 3 archetypes, 307n9 Archibugi, Daniele, 3, 154 Arendt, Hannah, 189–190, 227–229, 242–243 Aristotle, 132, 198 Arizona, 143 Arkin, William M., 274n6 armies. See militaries; wars Arnold, Matthew, 28 Aron, Raymond, 21 arts, 197, 199 Ashcroft, Michael, 314n2 askesis, 225, 226 assimilation, 283n10 Association of Muslim Scholars (AMS), 89 atom bomb, 169 Aurelius, Marcus, 229, 231 Australia, 124, 212, 217, 221, 287n4 Austro-Hungarian Empire, 20 authoritarianism, 47 authority, individual, 250, 252 authority, state. See sovereignty (authority) Bahrain, 306n60 Baird, Ian, 280n26 balance of power, 22 Ball, Desmond, 297n44 Baruch Plan of 1946, 22 Beck, Ulrich, 192–194, 207 Bednar, Jenna, 38, 42, 297nn35 Belgium, 177, 303nn34, 35 Benjamin, Walter, 216 Berlin, Isaiah, 228 Berlin Conference, 20 Berman, Bruce, 30 betrayals, 67– 69, 72–73 Bickel, Alexander, 98 biculturalism, 217 Bill of Rights (England) (1689), 151 biological and chemical warfare, 73 biometrics, 86, 91 Biometrics Fusion Center (U.S. Department of Defense), 86 biopolitics, 191, 201–210, 309n35. See also Foucault, Michel birthright citizenship ( jus soli), 102–103, 125, 127–128, 134, 135, 146, 283n10, 284n15, 291n50, 292n64 black freedmen, 221–222

Blackstone, 143 blockades, 175 Bodin, Jean, 176 Boemeke, Manfred F., 301n10 Boer civilians, 169 Bohman, James, 154–155 Bolkestein, Frits, 182 Bolshevik revolution, 294n3 bombs, bullets, and killings, 77, 78 borders: American, 102; commons and, 18; cosmopolitanism and, 199, 204, 212; globalization and, 8; human rights and, 206; Israel and, 180; Laos-Thailand, 70, 280n26; law as, 189; migration and, 32; property theory and, 289n23; social relations and, 219–220; sticky, 32; weak, 25, 32. See also immigration; territoriality (territorial control) Bosniak, Linda, 3, 142 Boumediene v. Bush (2008), 54 Bourne, Randolph, 5 Boxer Rebellion, 169 Brandeis, Louis, 42 Brig house, Harry, 166 Brimelow, Peter, 121 Britain: Bill of Rights (1689), 151; counterinsurgency and, 77, 80; English common law, 143; Germany and, 188; Libya and, 181, 305n42; Maori and, 218; mobilization and, 44; neutrality and, 177, 178, 180; rights and, 48; South Africa and, 301n10; wars and, 169; western Africa and, 301n10; World War II and, 304n36. See also Tilly, Charles British War Office, 83 Britons, 20 Brock, Gillian, 186 Brodie, Bernard, 23 Brookings Report, 89 Buchanan, Allen, 315n5 Budapest, 304n37 bureaucracies, 19, 20, 51 Burke, Edmund, 27–28 Bush administration (George W.), 41, 49–55, 64, 277n64. See also Iraq War Cabrera, Luis, 313n26 “cages,” 84–85 Callwell, C. E., 79–80, 83 Canada, 124, 127, 188, 217, 287nn4,5

Index

Capital (Marx), 200 capitalism, 18–19, 201, 207, 209, 211, 307n2. See also competition care, 225–226, 241 Ca ribbean labor, 29, 32 causality argument (immigration), 112–119, 285n6 cause lawyering, 54–55, 63 censuses, 86 Center for Constitutional Rights, 55 Center for New American Security, 76 center-of-interests test, 134 central banks, 299n62 centralization (central authority): confl ict and, 30; states and, 20, 153; state sovereignty system and, 26; war and, 39; world government and, 152, 155–159, 295n18 CFM (U.S. Army/Marine Corps Counterinsurgency Field Manual), 76–77, 79, 82–94 Champa Empire, 279n6 Chao Fa anti-communist resistance, 70, 71, 73 charge of the knights, 93 charitable duties, 247, 249 charities, 247 Chauvier, Stéphane, 184 Chechnya, 302n24 checkpoints, 84, 86, 90, 91 chemical and biological warfare, 73 Chicago School, 209 child custody, 133 children, 125, 139–141 China, 38–39, 71, 169, 186, 280n26, 301n10, 306n60 Chirac, Jacques, 299n59 Chowdhury, Arjun, 5, 274n74 Christiano, Thomas, 251, 315n5, 316n15 Christian Scientists, 251–252 Christmas Day bomber, 106 Churchill, Winston, 303n34 CIA, 59– 60, 63, 65, 67–70, 279n12 Cicero, 229–231, 240, 314n34 citizenship: changed perception of, 1–5; consent and, 102–105, 107, 119–122; earned, 137–139, 145; globalization and, 104, 131, 289n27; human rights and, 102, 104–105; ideology and, 101–105; law and, 98, 100–101, 106, 110; laws, international and, 133; liberalism and, 98–99, 102, 233; nationalism and, 102–105; particularity

321

and, 103, 105, 131, 135, 233; political community and, 227, 231–236; property rights analogy, 130–132, 135, 143–146, 288n16, 289n23; proxy wars and, 58; rights and, 99–100; right to, 190; right to vote and, 99, 101, 107–108, 140, 183, 245; rootedness and, 126–146, 292n69 (see also social connections); sovereignty and, 60; states and, 32, 101–102; territoriality and, 101–103, 105, 211–212; wars and, 20, 37. See also identity; immigration; obligations (duties), citizen; specific kinds of citizenship; specific states and peoples citizenship, birthright, 102–103, 125, 127, 134, 135, 146, 283n10, 284n15 citizenship, global (universal): accountability and, 10–11, 242; competition and, 18; contemporary concepts of, 237–243, 314n33; ethics and, 230–231, 236, 240–242, 313n26; everyday, 240–241; historical concepts of, 227–237, 242, 314n33; human rights and, 237–238; identity and, 236; international laws and, 237–238; Kant and, 229, 234–236; labor and, 190; particularity and, 11, 190, 230, 235, 238; political community and, 234, 238–240, 242–243; reciprocity and, 10, 11, 234, 236, 239–242; social identity and relationships and, 211–226; state citizenship and, 233; welfare and, 184; world government versus, 227. See also cosmopolitanism; transnationalism citizenship, paths to, 125–129. See also naturalization citizenship, plural: cosmopolitanism and, 2, 105; deterritorialization and, 190; ex lege and, 292n70; Hmong and, 2, 60, 66, 69, 73, 74; social practices and, 99–100; states and, 12; terrorists and, 97–110; U.S. and, 98–105 citizenship by descent ( jus sanguinis), 102, 127–128, 291n50, 292n64 citizens of the Earth, 211–226. See also citizenship, global (universal) civic duties and association, 258–263 “Civil and Political Rights” (UN), 171 Civil Defense, 22 civilian/military ratio, 43 civilians, 169–170, 173–176 civil rights and liberties, 45, 48–55, 57, 255, 277n64, 316n20. See also entitlements; freedoms of speech, press and assembly; rights

322

Index

Civil Rights Commission, 42 civil society, 18, 55–57, 119–123, 204–206. See also civil society, global civil society, global, 238–239, 241, 313n29, 314nn29,30 Civil War, U.S., 40– 41, 48, 160, 302n26 civil wars. See rebels Clausewitz, Carl von, 28–29 “clear-hold-build,” 77, 82–94 clearing operations, 75, 76, 82–87, 90, 91 Coalition Provisional Authority (Iraq), 87 Cockburn, Patrick, 91 coercion: duties and, 247; elites and, 35; foreign actions and, 286n24; freedom and, 316n14; justice and, 252, 316n14; natural duty and, 256; political relationships versus, 232, 313n15; war and, 44– 45 cohabitation, 133 Cohen, Elizabeth, 3 Cohen, Morris R., 288n23 cold war: casualties, 272n41; democracy and, 35; end of, 304n38; public opinion and, 36; rights and, 41, 42, 45; threat of war and, 22–23, 43 collaborators, 178, 303n35 Colombia, 302n24 colonialism. See imperialism (colonialism/ empires) “coming anarchy,” 33, 273n64 commerce, 197, 199, 235–236, 308n20 commons, 18 communications, 31, 163, 172, 197, 230, 236 communism: CIA and, 59, 63, 65; cold war era and, 41; confrontation and, 179; cosmopolitanism and, 167; eastern Europe and, 188, 304n37; imperialism and, 84; southeast Asia and, 66, 72, 279n14, 280n25 community, 208, 229, 230. See also political community; rootedness competition, 18, 20–21. See also capitalism complicity argument (immigration), 112–114, 119–123 concentric circle analogy, 229–230, 314n34 confederations, 156, 158 Congo, 302n24 consent, citizenship and, 102–105, 107, 119–122 conservatism, 49, 50, 52–54, 57 constitutions: centralization and, 156–157; cosmopolitanism and, 186, 206, 295n21;

economic growth and, 206; empires and, 27; Kant on, 196, 254–255, 307n9; national security and, 52; particularity and, 260; patriotism and, 315n7; settler states and, 215–216, 218, 219; sovereignty and, 156–157, 297nn35,37; war and, 37–39, 42, 46, 47, 49, 52, 295n21. See also specific countries consumers, 119, 120 contingent versus systematic, 166 contract theory, 219, 222 “Controlling Theatre Nuclear War,” 297n44 Convention Respecting the Laws and Customs of War (1899), 168–169 corporations, multinational, 2, 4 Correlates of War (COW) project, 43 “cosmopolitan hope,” 236 cosmopolitanism: biopolitics and, 201–210; confl ict and, 182–183; defi ned, 191; deterritorialization and, 191; egalitarianism and, 4, 182; epistemological (methodological), 192–193; as escapism, 187; indigenous theory and, 212, 215; law of war and, 168–176, 183; material basis for, 191–192, 195, 197–201, 210; methodological, 193; national honor and, 179, 182; nationalism versus, 192–193; oppression and, 115; peaceful projects and, 183–188; physico-material bases of, 189–210; political community and, 2; poverty and, 186; risk societies and, 194; scopic regime of, 191–192, 194–195; solidarity and, 194; stoic, 223; trends toward, 2–3; unconscious, 193. See also citizenship, global (universal); transnationalism; world government; and as subentry Coulthard, Glen, 219 counterinsurgencies: defi ned, 80; failure rates, 34, 81; globalization and, 81–82, 84; handbooks and theorists of, 76–86; human rights activists and, 76; identity and, 75, 82–94; multiple sovereignty and, 58 “Counterinsurgency” (Ahmad), 78 coups, 271n21 Crimean war, 272n41 criminals, 31, 33, 41 crises: defi ned, 19–20; expansion of state power and, 16–17, 27; international stability and, 31–32; objective processes and, 20–26; solutions to, 20; state formation and, 28–29, 34; states and,

Index

15–18; subjective processes and, 26–34. See also order and stability; security/ insecurity; wars critical indigenous theory, 212–215, 224–226 Crusades, 176 cultivation, 197 culture defense, 121–122 currency fluctuations, 163 Cynics, 230, 234, 312n9. See also individual Cynics Czechoslovak ia, 177, 178 Danish newspaper cartoons, 181, 305n48 Dante, 154 Dao, Yang, 69, 280n20 Darfur, 34 Dasein, 225 Dawes Rolls of 1906, 221–222 debt collectors, 164 decentralization, 156. See also federalism Declaration on the Granting of Independence to Colonized People (1960), 24 Declaration on the Rights of Colonized People (1960), 21 Declaration on the Right to Development (1986) (DRD), 207, 209–210, 309n40, 310n40 decline, 20 decolonization, 29, 206 de Gaulle, Charles, 46 Deleuze, Gilles, 307n2 Deloria, Vine, 222 democracy: attachment to across borders, 292n61; authority and, 316n15; cosmopolitanism and, 4; expansion of, 153, 295nn15–16; global, 153, 201, 312n1, 314n35; independence and, 255–256; Iraq War and, 87, 92–94; jus nexi and, 142; ownership of resources and, 186; peoplehood and, 260; public autonomy and, 291n59; rootedness and, 134–137, 146; terrorism and, 182; transnationalism and, 4; tyranny and, 294n7; wars and, 35, 39– 40, 46– 47; world government and, 151–154. See also rights Democratic Republican clubs, 40 denaturalization, 7 Denmark, 177 deportation, 106–107, 124, 125, 136, 140–142, 144, 291n56, 291n58. See also expatriation; removal

323

Desmond, William, 312n9 destabilization, 20–21, 25–26, 31 deterrence, 22–23, 25 deterritorialization, 190–191, 195–201, 307n2 development, human, 209 Development, Relief and Education for Alien Minors (DREAM) Act, 140 dialogic imagination, 194 dignity, 201, 309n39 Diogenes, 230, 234, 312n9, 314n34 Dirks, Nicholas, 27 “discretionary relief” from deportation, 136, 144, 291n58 disembedding/reembedding, 212, 219, 222 Disney, Walt, 22 distribution of resources, 186–187 Dobson, Andrew, 314n33 domicile, 292n68, 293n72 Dominican Republic, 101, 271n20 Dora neighborhood (Baghdad), 91 Dower, Nigel, 313n29 DRD (Declaration on the Right to Development) (1986), 207, 209–210, 309n40, 310n40 DREAM (Development, Relief and Education for Alien Minors) Act, 140 Dresden bombing, 176 Duss, Matthew, 91 Duties. See natural duties; obligations, foreigner; obligations (duties), citizen; obligations (duties), state; specific duties and obligations duties (taxes), 162 duty of beneficence, 247 duty of justice, 245–246, 248–249, 256, 317n24 duty of samaritanism, 315n5 duty to aid, 115, 285nn13,15, 286nn18,23 duty to obey laws, 244, 256 duty to participate politically, 245 duty to pay taxes, 244–245, 258 duty to resist or overthrow, 254 duty to respect self-determination, 245 Dworkin, Ronald, 315n7 Eastern Europe, 188, 206 East India Company, 28 Ebels-Duggan, Kyla, 315n12 Eckersley, Robyn, 314n33 economic development, 205–207, 209–210

324

Index

economic factors, 205, 236, 255. See also civil society; commerce; global civil society; trade economic intervention, 48– 49 economic justice, 255 economic sanctions, 185 economic threats, global, 194 Edelman, Murray, 36 Edson, Evelyn, 211 education, 75, 208, 209, 223, 309n39. See also students, undocumented egalitarianism, 4, 182, 284n14. See also equality Einstein, Albert, 154, 295n19 Eisenhower, Dwight, 22 elections, 87. See also right to vote elites: Bush and, 50; civil rights and liberties and, 45, 46, 49–51; coercion and, 35; cosmopolitanism and, 167; laws and, 254; Netherland’s free speech and, 305; postcolonial, 25; poverty and, 185; rights and, 51; social rights and, 48– 49; wars and, 46, 49 embedding, 212 “embodied in-place,” 212 emigrants and political practicees, 262–263 empires. See imperialism (colonialism/ empires) employers of immigrants, 119, 120 English common law, 143 Enlightenment, 176 entitlements, 102, 126, 131, 132, 283n1 environmental crises, 194 equality: constitutions and, 254–255; cosmopolitanism and, 4, 166–168, 188; differential treatment and, 284n14; DREAM act and, 140; human rights and, 167; law of war and, 174, 176; legal reform and, 141; “nation of laws” and, 136–137; noncitizens and, 183; rootedness criterion and, 135–136, 144–145; states and, 283n6; terrorism and, 171, 173 equity, 205 escapism, 187 ethics: citizenship, global, and, 230–231, 236, 240–242, 313n26; political community and, 233; territoriality and, 222 ethnic cleansing, 88–91 ethnicity: clearing operations and, 90, 91; Hmong and, 66; Iraq and, 87–91; legality markers and, 75; mobilization and, 63– 64,

279n9; policing and, 85; Vietnam War and, 278n6. See also race and racism ethnic war, 271n21 ethos, shared, 294n7 European Convention on Human Rights, 302n20 European Court of Human Rights, 184, 302n20 European states: crisis of, 19–20; early modern, 38; East Central, 39; Eastern, 47; ICC and, 174; immigrants and, 283n10; imperialism and, 24, 270n20; Israel and, 306n49; Israeli war crimes (Gladstone report) and, 305n40; medieval, 176; Muslims and, 184; Reagan policies and, 304n38; rights and, 40, 48; state formation and, 17, 20–21; terrorism and, 181–182, 305n48, 306n49; wars and, 40, 168–169; welfare and, 49. See also specific states; specific wars European Union, 105, 149, 179, 180, 187 excise taxes, 152, 162, 298n56 exclusion. See inclusion/exclusion ex lege, 138–139, 292n60, 292n70 expatriation, 101, 103, 106–110 exploitation, 203–204 “extraordinary rendition,” 278n4 “Failed States Index” (Foreign Policy), 270n13 Fair Employment Practices Commission, 42 fairness, 205 Falk, Richard, 313n29 Fanon, Frantz, 78 FBI (Federal Bureau of Investigation), 41, 55 fear, 36 federalism: citizen, direct control of, 158, 297n42; decentralization versus, 156; governmental powers and, 196n35; Iraq and, 94; Madison on, 296n34; world government and, 152–153–155, 295n23 “Federalism” (Riker), 196n35 The Federalist (Hamilton, Madison, and Jay), 167–168 Federalist Party, 40 Feldman, Greg, 82 fellowship of mankind, 229–231 feminist theory, 290n39 fi nancial community, 298n59 Finland, 178 First Amendment rights, 55, 109

Index

first occupancy, 216–217 foreign affairs power, 294n11 foreign aid, 184, 186 foreigners, 223, 316n24 Foreign Policy, 270n13 Fort Hood killer, 100–101, 106 Fort Leavenworth conference, 76–77 Foucault, Michel, 76, 79, 201–205, 309nn30,35. See also biopolitics Fourteenth Amendment to U.S. Constitution, 102, 103, 107–108, 127 France: counterinsurgency and, 80; Jews and, 303n35; Libya and, 181; neutrality and, 177–179; U.S. quasi-war with, 40, 43, 45. See also Algerian War franchise, voting, 48 Franco-Prussian war, 272n41 freedom: authority and, 254, 316n18; coercion and, 316n14; constitutions and, 254–255; cosmopolitanism and, 201–202; duty to respect, 248; education and, 309n39; governmentality and, 205, 206; Hmong and, 74; institutional mediation hypothesis and, 253; laws and, 257; NGOs and, 239; private property and, 255; private views of justice and, 252; self-determination and, 248; states and, 254–255; territoriality and, 259; territorialization and, 212; war and, 37, 60 freedoms of speech, press and assembly, 41, 42, 46, 184, 305nn45,48. See also civil rights and liberties freedom to travel, 226, 228 Free World, 179 French Algerian War, 46, 47, 77, 78 French Indochina, 63 Freud, Sigmund, 193, 207 Friedberg, Aaron L., 276n48 Fulbright, J. William, 154, 295n21 FULRO (United Front for the Liberation of Oppressed Races), 279n6 Gaddafi, Muammar, 181, 286n25, 306n60 Galula, David, 77–82, 86 Gandhi, 29 garrison state, 36, 39, 52, 58 “gated communities,” 90–91 gate-keeping, 130–131, 290n33 Gaza, 180, 304n40 gender, 221, 279n14. See also women genealogical society, 219

325

Geneva Conventions (1949) and Additional Protocols, 169–174, 285n7, 301n10, 302n24 genocide, 158, 169, 271n21, 304n35 geography, 225 geontologies, 212, 222, 225 geosociality, 212 Germanicus, 231 German Ministry for Economic Cooperation and Development, 298n59 German states, 16 Germany: China and, 301n10; Greece and, 187; Iraq and, 179; League of Nations and, 177; post-World War II, 178, 188; rise to power of, 21; treaties and, 177, 303n34; wars and, 169, 179 G.I. Bill of Rights, 42, 48 Giddens, Anthony, 39 Gilbert, Martin, 304n36 Gladiator (fi lm), 231 global citizenship. See citizenship, global (universal) global civil society, 238–241, 313n29, 314nn29,30 global government. See world government (world governance) globalization: citizenship and, 104, 131, 289n27; community and, 229; counterinsurgency and, 81–82, 84; economic growth and, 205–206; governmental technologies and, 205; Marx and, 201; order and, 18–19; paths to citizenship and, 127–129; poverty and, 185–186; rootedness criteria and, 146. See also cosmopolitanism Golden Dome Mosque (Samarra), 88, 92, 93 Goldsmith, Jack L., 45, 50, 51, 277n68 Goldstone report, 304n40 governance of the prior, 212, 214, 218–221, 224 governmentality, 201–210 governmental technologies, 205, 206 grassroots movements, 55–57 Greece, 187 Greece, ancient, 189–190 Green Hmong, 60 Greenpeace, 238 Greenwood, Arthur, 304n36 green zone, 90 grenades, 65 Gross, Leo, 1–2 Guantánamo, 49, 53–55, 172, 173, 277n64, 284n12

326

Index

Guariglia, Osvaldo, 184–185 Guattari, Félix, 307n2 guerrilla wars, 44, 172–174, 179, 302n24. See also terrorism Gwynn, Charles, 82–83 habeas corpus, 39, 41, 54, 55, 284n12 Habermas, Jürgen, 201, 314n30, 315n7 Haditha, 77 Hague Peace Conference (1907), 169, 170, 301n9 Haidt, Jonathan, 294n8 Haiti, 21, 24–25, 245, 258–259, 262, 271n20, 272n40 Hamas, 304n40 Hamdan v. Rumsfeld (2006), 54 Hamdi, Yaser Esam, 54 Hamdi v. Rumsfeld (2004), 54 Hamilton, Alexander, 162, 167, 176–177, 298n57, 299n60, 303n32 Hammar, Tomas, 135 Hansen, Thomas Blom, 59 happiness, 224, 246, 255 Hardt, Michael, 190, 309n35 Hart, H.L.A., 260 Harvey, David, 211, 223 Hasan, Nidal, 100, 106 Hastings, Warren, 27 Held, David, 3, 154, 166, 182 Henkin, Louis, 297n43 Heraclitus, 31 Herbst, Jeff rey, 32 Herero tribe, 169 Hertzberg, Hendrik, 52 Hintze, Otto, 40 Hmong: betrayal and, 67– 69; citizenship, plural, and, 2, 60, 66, 69, 73, 74; history, 59, 61– 64, 279n7; Laos and, 62– 67; mobilization and, 73, 74; political rhetoric and, 74; proxy war and, 2, 73; rituals, 67; U.S. withdrawal and, 70–71; wild mushroom collectors, 69–73 Hobbes, Thomas, 243 Holder, Eric, 54 Holland, 177, 178, 180–182, 184, 303nn,34,35, 305n45, 306n49 Holmes, Jr., Oliver Wendell, 42, 126 Holocaust analogy, 187–188, 306n64 Holsti, Kalevi, 43 Holy Roman Empire, 154

hospitality, 196, 216, 235 host-nations, 81 human (living) capital, 203, 209–210 human development, 209–210 humanism, 204 humanitarian intervention, 158, 206, 237, 313n27 humanitarian law, 302n19 humanity (human nature), 191, 195–200, 205–207, 209 human nature, 168, 203–204. See also humanity human rights: activists, 76; borders and, 206; citizenship, global, and, 237–238; citizenship and, 102, 104–105; communications and, 31; cosmopolitanism and, 184–185, 191; economic development and, 207; education and, 309n39; equality and, 167; Europe and, 302n20; labor exports and, 209–210; oppression and, 191; people as resources and, 210; property rights, as, 290n36; resources and, 208; states and, 30, 191, 196, 207; treaties and, 171; utopianism and, 187; women and, 207–208; world government and, 155, 158, 164 Hungary, 304n37 Hurriyah, 92 Hussain, Nasser, 6–7, 58 Hussein, Saddam, 179, 185 Husserl, Edmund, 16, 19 Hutchings, Kimberly, 314nn29,30 hyperprofit, 202 ICC (International Criminal Court), 104, 174–175, 180–181, 237 ICRC (International Committee of the Red Cross), 172, 175 identification, 241 identity: cosmopolitanism and, 230, 236; counterinsurgency and, 75, 82–94; Diogenes and, 312n9; history and, 61– 64; national, 56, 104. See also citizenship; ethnicity; particularity ideology, imperial, 66 ideology, nationalistic, 101–105, 190, 193 illegal immigrants. See immigrants, undocumented (illegal) imaginaries, 211, 214–217, 220, 221, 223 immigrants, undocumented (illegal): adults, 142–144, 287n5, 291n58; laws and,

Index

125–126; morality and, 112–114; students, 139–141, 287n5; “territorial inclusion” and, 293n72; U.S. number of, 125; workers (illegal immigrants), 119–124, 285n10, 287n5. See also immigration immigration: causality argument and, 112–119; citizenship and, 99; complicity argument and, 119–123; Europe and the United States and, 3; jus nexi and, 132; justification of states’ actions and, 111–112; nation of laws versus nation of immigrants and, 124; oppression and, 115; paths to citizenship and, 125–127 (see also naturalization); property rights and, 130–131; sovereign nation-states and, 5; United States and, 112–119, 124, 286n18; wars and, 114–119; World War I and, 41. See also immigrants, undocumented (illegal); migrations imperialism (colonialism/empires): contemporary confl icts and, 92–93; counterinsurgency and, 76, 77, 79, 81–94; embedding and, 212; ethnicity and, 279n9; Europe and, 24, 270n20; illegitimacy of, 24; India and, 27–28; instability and demise of, 15–17, 19–21, 24–25, 29, 271n23; laws and, 27; migration and, 32; policing and, 92; resistance and, 271n23; settler states and, 214; state sovereignty system and, 26, 29; U.S. and, 18; wars and, 169; world government and, 294n9. See also anticolonialism; decolonization inclusion/exclusion: Australia example, 221; biopower and, 309n35; democracy/ liberalism and, 3, 135, 138, 144; the earth and, 211; Hmong and, 6; indigenous peoples and, 16; Iraq and, 87; Naturalization Act of 1790 and, 292n65; obligation and, 144, 285n4; over- and under-, 128, 288n19; Oxfam and, 245; political community and, 126–129; race and, 292n65; territoriality and, 211, 293n72; U.S. and, 102, 103, 291n54; of U.S. women, 292n65. See also citizenship, global (universal); cosmopolitanism; immigration; rootedness income taxes, U.S., 162, 298n56 independence, 254–256 indeterminacy, 250–251 India, 27, 29, 101, 270n20 India Bill (1858), 28

327

Indian Ocean piracy, 32 indigenous peoples, 212, 215–223. See also American Indians; specific peoples indigenous theory, critical, 212–215, 224–226 individuals, 199–200, 204, 205, 208–210, 308nn17,20,22, 310n40 Indochina, 80, 85 industrialized state, 38 inequality, 4, 132, 284n15 information, 35–36, 56 information operations, 80, 91 infrastructural power (infrapower/ sous-pouvoir), 202 Ingold, Tim, 212 injustice. See justice/injustice insecurity. See security/insecurity instability. See order and stability institutional mediation hypothesis, 247–250, 252, 263–264 institutions, 246–254, 260 insurgents, 179–180. See also counterinsurgencies; guerrilla wars integration (racial), 42 intent to relinquish, 101, 108 interactional theory of natural duties, 248–249 Interim Governing Council (Iraq), 87 “internal aspect,” 260 internal colonization, 29 Internal Security Duties 1947, 85 International Committee of the Red Cross (ICRC), 172, 175 International Court of Justice, 133–134 International Covenant on Civil and Political Rights, 184 International Covenant on Economic, Social, and Cultural Rights, 207–208, 309n38 International Criminal Court (ICC), 104, 174–175, 180–181, 237 International Crisis Group report on Iraq, 87, 88 international currency transactions, 163 International Development Strategy for the Th ird United Nations Development Decade (U.N.), 205–206 international intervention, 33–34, 158 international-justice argument, 114–116 International Labor Orga nization, 206 international laws. See laws, international ( jus cogens)

328

Index

International Registry of World Citizens, 229 international relations theory, 42– 43 international systems, 25. See also imperialism (colonialism/empires); state sovereignty system (interstate system) interrogations, 172–173, 302n24 interstate system. See state sovereignty system Iran-Iraq war, 272n41 Iraq, 87, 92–94, 302n24 Iraqi Constitution, 87, 88 Iraqis, 2, 112–119, 285n7, 286nn18,24 Iraq War: counterinsurgency and, 75, 77–78, 81, 86–94, 282n51; democracy and, 87, 92–94; Europe and, 179–180; Kilcullen on, 82; rights and, 45; surge, 86–94. See also U.S. Army/Marine Corps Counterinsurgency Field Manual (CFM) Ireland, Northern, 80 Islamic countries and creed, 97 Islamic Party, 89 Islamist extremists, 179 Israel, 170, 180, 217, 304n40, 306n49 Italy, 16, 44, 303n35 Jacobson, David, 290n40 Jaffa, 85 JAM (Jaysh al-Mahdi militia) (Mahdi army), 89 Japan, 38–39 Japa nese Americans, 41, 42, 44 Jaspers, Karl, 227, 230, 243 Jay, John, 167 Jaysh al-Mahdi militia (JAM) (Mahdi army), 89 Jefferson, Thomas, 40, 41 Jews, 182, 303n35 Jonsson, Hjorleiff ur, 280n22 jus cogens (international law), 84, 102, 158 jus domicili (residency principle), 244, 258, 262, 292n68, 293n72 jus nexi: in action, 139–146; jus domicili versus, 293n72; jus soli and jus sanguinis and, 291n50, 292n64; 1.5 generation and, 141; rootedness and, 8, 128–139 jus sanguinis/jus soli (citizenship by descent/ birthright citizenship), 102–108, 127–128, 291n50, 292n64 justice/injustice: causality argument and, 119; coercion and, 252, 316n14; deportation and, 136; disagreements about, 249–250, 253, 257, 316n16; duty toward state and,

245–246, 248–249, 256, 317n24; economic, 255; economic development and, 205; fellowship of mankind and, 231; immigration policy and, 123; indigenous peoples and, 215–219; institutions and, 11; international, 114–116; liberalism and, 233; natural duty of, 245–246, 248, 249, 253–254, 256, 258–259, 263–264; political institutions and, 246–254; private views of, 252–253; procedural, 251–253; sovereignty and, 250, 253–254; thick subjectivities and, 224; time and, 218–219; utopianism and, 187; world government and, 164 Kaldor, Mary, 313n29 Kant, Immanuel: citizenship, global, and, 229, 234–236; on constitutions, 196, 254–255, 307n9; cosmopolitanism and, 196–197, 201; deterritorialization and, 195–197; duty to state and, 246–247; freedom of travel and, 212, 226; institutional mediation hypothesis and, 249–250; law of war and, 175; on legitimacy of states, 247–248, 254–255; on nation of laws, 128; on personhood of state, 317n28; on procedural justice, 251–252, 253; property rights and, 288n20; proximity principle of, 259; on state authority, 315nn9,12, 316n22; on states, 259; on wars, 39, 243; on world government, 149, 293n2, 295n23 Kaplan, Martha, 214 Kaplan, Robert, 273n64 Kauanui, J. Kehaulani, 219 Kelly, John, 214 Kennewick Man, 216 Kenya, 80, 85 Khrushchev, Nikita, 304n37 Kier, Elizabeth, 39, 40, 43, 44, 276n50 Kilcullen, David, 81–82, 90–91 kinetic operations, 77 kinship, 64, 212, 220, 221 Kissinger, Henry, 22 Kitson, Frank, 80 Klotz, Audie, 273n63 Know-Nothings, 98 Knox, Melissa, 285n13 Korean war, 272n41 Krebs, Ronald, 36, 39, 40, 43, 45– 47, 276n50 Kroenig, Matthew, 50–51

Index

Kurds, 88 Kyrgyzstan, 306n60 labor: Ca ribbean indentured, 32; deterritorialization and, 191; export of, 209–210; Foucault on, 204; intellectual, 309n35; Marx on, 198; politics and, 202; right to citizenship and, 190; temporary workers, 124, 287n5; women and, 207–208, 210; World War I and, 47. See also alienation; immigrants, undocumented (illegal) land, 212, 222. See also territoriality (territorial control) land powers, 40 language, 229–230 Laos, 59, 60, 62– 69, 280n25 Laotian Royal Armed Forces, 60 Laotians, 70 large-scale wars, 45– 46. See also specific wars Lasswell, Harold, 6, 35–36, 38– 42, 52, 56, 57 law of nations, 237, 301n8 law of war (armed confl ict) (rules of war), 168–176, 183, 235, 302nn25,26 Lawrence, T. E., 80 Lawrence, Vinton, 63 laws: as border, 189–190; citizen input and, 255–256; duty to obey, 244; enforcement and, 120–121; English, 27; equality and, 255; foreign, 104; justice and, 254; obeying of, 260; paths to citizenship and, 127; peoplehood and, 259–260; reform of, 141; rootedness and, 138; states and, 294n12; undocumented immigrants and, 125–126, 143; unjust, 257; U.S. citizenship and, 136; U.S. immigration and, 113–114; violence and, 216, 219; world government and, 151, 152. See also law of nations; law of war; laws, international; specific laws laws, foreign, 104 laws, international ( jus cogens): citizenship, global, and, 237–238; citizenship and, 133; expatriation and, 108; humanitarian, 171, 313n27; policing and, 84; right to intervene and, 313n27; rootedness and, 133; state sovereignty and, 158; territorial control and, 103–104; U.S. and, 102; world government and, 157–158, 297n43. See also law of nations Le, Kong, 67 leadership, 33, 64, 68, 69, 115, 119, 279n14 League of Nations, 177

329

Lebanon, 180 Lee, Gary Yia, 279n14 Lee Lor, 280n25 legal documentation, 2 legitimacy, 233, 313n15, 316n20 legitimacy of states, 254–255 liberalism: citizenship and, 98–99, 102, 233; civil rights and liberties and, 52–54, 57; constitutions and, 255; cosmopolitanism and, 167, 168, 188; Foucault on, 205; imaginaries and, 214; individuals and, 204; injustices and, 215; justification of state actions and, 111–112; noncitizens and, 183; space and, 220; war and, 37, 39 liberal reformists, 78–79 Libya, 181, 305n42, 306n60 Libyan rebels, 286n25 Lieberman, Joseph, 107, 108 “limited” wars, 272n41 Lincoln, Abraham, 41, 160, 303n26 localism, 155–156 Locke, John, 167, 248, 301n8 Lonsdale, Jeremy, 30 loyalty, 98, 109 Lugard, Frederick, 24 Luttwak, Edward, 271n26 Machiavelli, 31 Madison, James, 39, 160, 167, 296n34 Madrid terrorist attacks, 181 Magna Carta, 151–154 Mahdi army (Jaysh al-Mahdi militia), 89 Makiya, Kanan, 87–88 Malaya, 77, 80, 85 Mamdani, Mahmood, 58 manifesto cosmopolitanism, 195 mankind, 166, 167, 196, 197, 228–230, 235, 236 Maori, 218 maps, 211, 225 Marchetti, Raffaele, 154 Marcomannic Wars, 231 Marcus Aurelius, 229, 231 Margulies, Joseph, 56 Markell, Patchen, 212 market forces, 31 Markovits, Andrei, 306n49 Marshall, T. H., 6, 48, 57, 283n6 Marx, Karl: Beck and, 193; on commerce, 308n20; on crises, 31; deterritorialization and, 195; on globalization, 210; on human

330

Index

Marx, Karl (continued) nature, 203–204; post festum problem and, 16; on production, 210, 308nn17,20,22; sociality and, 195, 198, 200, 203; territoriality and, 197–201 Massachusetts Constitution of 1780, 287n2 McCarthyism, 98 McKinnon, Catriona, 236 McVeigh, Timothy, 97, 110 media, 77 medieval Europe, 168, 176 membership, 124–146 memory, 212 metics, 144 Metzler, John, 304n38 Mexican immigrants, 99, 113, 284n12 Mexico, 101 migrations, 32, 105, 209–210 militaries (armies): autonomy and, 62– 63; centralization and, 20; ICC and, 173, 174; policing and, 82–83; professionalization of, 44, 276n50; reprisals and, 302n26; Swiss Confederation and, 294n13; U.S. and, 156, 159–161; war crimes and, 302n25; world government and, 152, 153, 159–161. See also wars militarism, 7, 11–12, 41 militarization, 49. See also wars military/civilian ratio, 43– 44 military commissions, 52, 54 militias, U.S. state, 159–161, 297n45, 298n47 Mill, James, 270n20 Miller, David, 3– 4, 10–11, 18 missile attacks, 174 mobilization: counterinsurgency and, 75; ethnicity and, 63– 64, 279n9; Hmong and, 59– 61, 63– 64, 68, 73–74; kinship and, 64; rights and, 43– 45, 47, 48; sovereignty and, 68– 69; stories and, 74; World War I and, 44; World War II and, 49 modernity, 220 Montagnard refugees, 72, 278n4 Montesquieu, 167 moral interests, 250–253 morality: complicity argument and, 119–120; cosmopolitanism and, 166–167; disagreement and, 251–252; global civil society and, 314n30; immigration and, 111–114; law of war and, 175, 176; nation states and, 258–264; politics and, 196; rape and torture and, 303n28; rationalizations and,

294n8; thick subjectivities and, 224; universal, 231 moral judgments, 294n8 Morgenthau, Hans, 22 Motomura, Hiroshi, 134 Moua, Wameng, 280n20 multiculturalism, 194, 195, 223–224 multilateral organizations, 17–18 multinational corporations, 2, 4 Muslims, 81, 181–182, 184, 305n48 myths, modern, 279n7 Nagel, Thomas, 164 Nagl, John, 77 national attachment. See particularity national honor, 176–183, 303n31, 304n36 nationalism (nationalistic model): citizenship and, 102–105; cosmopolitanism versus, 192–193; deterritorialization and, 190; identity and, 56; indigenous peoples and, 219–223; settler states and, 214, 220; territoriality and, 219. See also patriotism national security industry, 274n6 nation building, 270n14. See also state building “nation of immigrants,” 292n69 “nation of laws” versus “nation of immigrants,” 124–128, 136–137, 142–145, 287n2 Native American Housing Assistance and Self-Determination Reorga nization Act of 2007, 222 Native Americans, 215, 218, 221–222, 301n10 NATO (North Atlantic Treaty Orga nization), 178, 180, 181, 286n25, 297n44, 305n42 natural duties: annexation/authority/taxes and, 258; authority and, 315n5; institutions and, 11; of justice, 245–246, 248, 249, 253–254, 256, 258–259, 263–264; to obey laws, 257; obligations, citizen, 315n5; particularity and, 260–263; political obligation and, 315n5; theories of, 315nn5–7 naturalization, U.S.: ceremony, 102; citizenship, plural, and, 99–100, 109; ex lege, 138; jus nexi and, 291n50, 292n64; residency and, 100, 134, 136, 138; terrorism and, 54, 97, 109; U.S. legal requirements for, 100–101, 128, 139, 288n21. See also citizenship, paths to; denationalization Naturalization Acts of 1790/1798, 138, 292n65– 66

Index

331

natural law, 167, 206, 248 Negri, Antonio, 190, 309n35 neo-colonialism, 180 Neo-functionalists, 149 Neo-Hegelians, 149 neoliberalism, 206, 209 Neo-liberals, 149–150 neutrality, 75, 79, 82, 83, 86–87, 176–179, 181, 303n34. See also clearing operations new property, 129–131, 290n34 New Republic (magazine), 112–113 New Yorker (magazine), 52 New York Times (newspaper), 89, 154, 181 New Zealand, 124, 217, 287n4 Ngai, Mae, 136 NGOs (nongovernmental organizations), 206, 209, 238–239, 246, 256 Nichols, Robert, 219, 222 9/11, post-, 36, 37, 56, 105–106, 109, 274n6, 277n64, 306n49 Nixon administration, 45 nomos, 189–190, 211, 212 nondemocratic regimes, 256 non-European states, between, 272n41 nongovernmental organizations (NGOs), 206, 209, 238–239, 246, 256 nonnationals: human rights and, 208 non-refoulement, 238 nonstate actors, 2, 19, 25, 31–34, 42, 206. See also nongovernmental organizations (NGOs); rebels; terrorism; specific nonstate actors the North, 207. See also wealthy countries North Atlantic Treaty Orga nization (NATO), 178, 180, 181, 286n25, 297n44, 305n42 Northern Ireland, 80 Norton, Anne, 278n4 Norway, 177 Nottebohm decision (International Court of Justice, 1955), 133–134 nuclear weapons, 21–23, 25, 26, 31, 243 Nuremberg trials, 174 Nussbaum, Martha, 223, 234

plural citizenship and, 101; rootedness and, 129–134, 137, 143, 225–226; U.S. and, 183. See also institutional mediation hypothesis; natural duties; patriotism; specific duties obligations, foreigner, 314n1, 316n24 obligations (duties), state: citizenship and, 101–102; civilians and, 174; cosmopolitanism and, 115, 168, 171, 187, 213, 226; extraterritorial control and, 104; immigrants and, 7–8, 112, 115, 118, 126–127; international law and, 237; Kant and, 288n20; labor migration and, 208, 209; the prior and, 218, 221–223; social movements and, 63; treaties and, 297n39; U.N. peacekeeping and, 161; U.S. and, 284n12; wars and, 36–37, 176 obligation to include, 144, 285n4 occupancy, 216, 217 occupations (military), 47 Oklahoma City mass murder, 97 1.5 generation, 139–140 O’Neill, Onora, 164 Ong, Aihwa, 4 opium, 64, 68 Oppenheimer, Robert, 22 oppression, 114–115, 191, 285n12, 317n32 order and stability: demand and supply mismatch, 15–19; imperial and state sovereignty systems and, 20–21, 24–26, 30–31, 33–34; international, 25–26, 31–32; nonstate actors and, 32–33; nuclear weapons and, 23; policing and, 83; state building and, 32, 34; state formation and, 19–30, 32; transnationalism and, 6; wars and, 271n26. See also crises; security/ insecurity Orr, Verne, 23 otherness, 194 Ottoman Empire, 21 Our Friend the Atom (movie), 22 Oxfam, 238, 239

Obama administration, 52–54, 76, 106, 173, 174 Obeyesekere, Ganneth, 67 obligations (duties), citizen: citizenship, global, and, 231; citizenship and, 101–102; ethical, 233; natural duty and, 315n7; particularity and, 11, 244–264, 315n7;

pacification, 78 Padilla, Jose, 97, 106 Pakistan, 306n60 Palestine, 83, 85, 91, 217, 281n25 Palmer, A. Mitchell, 41, 49 Palmerston, Lord, 28 Pao, Vang (VP), 60, 63, 68–70, 73

332

Index

particularity: citizenship, global, and, 11, 190, 230, 235, 238; citizenship and, 103, 105, 131, 135, 233; constitutions and, 260; cosmopolitanism and, 166–168, 225, 306n49; critical indigenous theory and, 224–225; immigration policy and, 111–112, 122; national honor and, 179, 188; natural duty and, 260–263; objection/ requirement, 246, 315nn6–7; political obligation and, 245–264. See also identity partisan confl ict, 52–54 passports, 2, 98, 100, 106 patents, international, 164–165, 300n66 Pathet Lao, 59, 63, 65, 66 patriotism, 44– 45, 104, 109, 168, 261, 314n2, 315n7. See also nationalism Paul the Apostle, 228 peace: appeasement and, 306n48; cosmopolitanism and, 9, 183–188, 197; economic factors and, 236; education and, 309n39; established military and, 35; Germany and, 177, 178; imperialism and, 20–21; Kant on, 154, 197, 235, 236, 293n2; movements for, 179; negotiated, 170; neutrality and, 178, 181; Rousseau on, 293n3; state sovereignty system and, 1–2, 9; threats to world, 306n49 Peace of Westphalia (1648), 1, 154 Pearson, Thomas, 72 Penn, William, 154, 296n31 peoplehood, 259–261, 317nn26,28,32. See also political community Pepper, Claude, 154, 295n21 Perrigo, Sarah, 302n24 personhood, 219, 222, 223, 288n13 Petraeus, David, 7, 76, 81, 89 Pheng, David, 280n22 Philippines, 101, 169, 301n10 Phou Bia, 70, 71, 73 piracy, 32 pluralism, 51 plural sovereignty, 297n42 Pogge, Thomas, 185–188, 306n64 Poland, 177, 178, 304n37 policing, 77, 78, 79, 82–83, 86, 93, 119–121. See also clearing operations policy, international, 32–34 polis, 189 political action, 73 political community: citizenship and, 227, 231–236, 262–263; citizenship, global, and,

234, 238–240, 242–243; coercion versus, 313n15; cosmopolitanism and, 2; counterinsurgency and, 92; duty to participate in, 245; ethics and, 233; experiences of war and, 60; gender and, 279n14; generation of, 259; globalization and, 82; Greeks and, 189–190; Hmong and, 69, 73; imaginary of nationalism and, 220; individual duties toward, 208; mobilization and, 74; states and, 33; territoriality and, 104, 228; wars and, 39, 43, 60. See also community; peoplehood; rootedness Political Instability Task Force, 271n21 political institutions, 246–254 political rhetoric, 60, 74 political voice, 58 politics: bio-, 191, 201–205, 207, 210, 309n35 (see also Foucault, Michel); cosmopolitanism and, 200; morality and, 196; partisan, 52; thick subjectivities and, 224 populations, 77, 83, 203–209, 309n30 Population Support Overlay, 86 Porter, Bruce, 39, 40 Posner, Eric, 50 Posner, Richard A., 290n37 post-9/11 period, 36, 37, 56, 105–106, 109, 274n6, 277n64, 306n49 post-1945 period (post-World War II), 21, 26, 42, 45, 50, 178, 188, 214, 276n48. See also cold war postcolonial world, 25, 29, 31, 93, 207–208, 272n41 post festum problem, 16, 26 postnationalism, 3, 290n40 poverty, 184–186, 306n64 power, state, 16–17, 27, 30, 32–33 precolonial period, 32 premodernity, 220 Presser, Jacob, 304n35 Priest, Dana, 274n6 prior occupancy, 10, 217 prisoners, 54, 56, 64, 170, 172–173, 239, 240. See also specific prisons private contractors, military, 44 private interests, 293n3 private property: duties and, 247; freedom and, 255; indigenous people and, 221; Marx on, 200; private views of justice and, 252–253; protection of, 251; as relations, 290n39; rivalrous conceptions of, 131–132; socialism and, 251; states

Index

and, 259; voting and, 316n23. See also property rights production, 198–200, 202–203, 308nn17,20,22 progress, 194–195 propaganda, 80 property rights: citizenship and, 130–131, 135, 143–146, 288n16, 289n23; human rights as, 290n36; inherited, 284n15; Kant and, 288n20; nationality and, 301n8; path to citizenship analogy, 127–129; personhood and, 288n13; restraints, 290n33; rootedness and, 126; social connections and, 131–132, 290n39; socialism and, 168. See also private property public discourse, 74 public goods and ser vices: counterinsurgencies and, 78, 81; formation of European states and, 20; indigenous peoples and, 216, 218; networks of civil-society organizations and, 18; noncitizens and, 133; nonstate actors and, 33; private property and, 289n23; property and, 132; state failure and, 15; U.S. noncitizens and, 183; violence and, 293n3 public opinion: Islamic terror and, 306n49; rights and, 48–51; technology and, 36, 39; undocumented immigrants and, 142; U.S. constitution and, 50 public spirit, 233–234 Puntland (Somalia), 32–33 al-Qaeda (AQ), 81, 88, 89, 100, 172 race and racism, 75, 79–80, 84, 122, 292n65. See also ethnicity Radin, Margaret Jane, 290n37 rape, 303n28 Rapport, Aaron, 274n74 Rasul v. Bush (2004), 54, 284n12 rationality (reason): archetypes and, 307n9; cosmopolitanism and, 194–195, 197; Europe and, 16, 20; fellowship of mankind and, 229–230; governmentality and, 207; Marx on, 200; morality and, 231, 314n30 Rawls, John, 135, 216, 217, 234, 245, 315n7, 317n24 Reagan administration, 23, 73, 304n38 reason. See rationality rebels, 160, 169–171, 233, 286n25, 301nn13–14, 302n24. See also anticolonialism; Chao Fa anti-communist resistance;

333

duty to resist or overthrow; guerrilla wars; nonstate actors; terrorism rebus sic stantigus doctrine, 217–219 reciprocity: citizenship, global, and, 10, 11, 234, 236, 239–242; coercion and, 316n14; Geneva conventions and, 170–171; Hague convention and, 169; weak and stronger, 232–233 Red Cross, International Committee of (ICRC), 172, 175 Reform Acts (nineteenth century), 152 refugees, 238, 285n7 regime change, adverse, 271n21 Reich, Charles, 129 Reiter, Dan, 46– 47 relativism, 27 religion, 85 Religion, Race and Ethnicity overlays, 86 removal, 136, 291n58. See also deportation representation, political, 20, 25, 44, 45, 56, 87, 89, 241, 292n62. See also right to vote reprisals, 302n26 republicanism, 39, 231, 233 residency, 100, 134, 136, 138–139, 292nn66,68 residency principle ( jus domicili), 244, 258, 262, 292n68 resistance, 254. See also rebels; revolutions resources: commons and, 18; cosmopolitanism and, 186–187, 240, 241; human beings as, 202–204, 206, 208–210; military, 38– 40, 56, 64, 187; states and, 259; taxes on extraction of, 162 responsibility, 187 restorative wars, 46 retaliation, 23, 173–174 revenue powers, 294n14 Revolutionary War, U.S., 159, 215 revolutions, 271n21, 293n3 Ricks, Thomas, 86–90 rights: biopolitics and, 203–205; citizenship and, 99–100; civil, cosmopolitan and international, 196; civil society and, 204; Civil War, U.S., and, 48; cosmopolitanism and, 196, 235–236; domestic terrorists and, 106; geographic basis for, 101; globalization and, 105; group, 104–105; immigrants and, 111; indeterminacy and, 251; insecurity and, 35–36, 41; Iraq War and, 45; Kant on, 234–235; political community and, 233; of refugees, 238;

334

Index

rights (continued) self-determination and, 248; social and economic, 206; social connections and, 130 (see also rootedness); state building and, 36–37, 47– 48; states and, 254–255; taxes and, 260; variation in, 47–51; wars and, 5– 6, 35–57. See also citizenship; civil rights and liberties; democracy; entitlements; property rights; specific rights rights, social, 48– 49. See also welfare “The Rights of the Child” (UN), 171 right to citizenship, 190 right to communicate, 172, 197, 230, 236 right to education, 208, 209, 309n39 right to free political association, 256 right to free speech, 256 right to intervene, 313n27 right to property. See property rights right to self-determination, 208, 245 right to settle, 235–236 right to travel, 235 right to vote (suff rage): compromise and, 232, 233; Kant on, 316n23; laws and, 260; rootedness and, 133; U.S. citizenship and, 99, 101, 107–108, 245; U.S. noncitizens and, 140, 183; wars and, 48. See also democracy Riker, William, 155–156, 196n35 risk societies, 193–194 Roberts, Owen, 154 Roman Empire, 228 Roosevelt, Franklin, 36, 41, 42, 50 rootedness, 126–146, 292n69. See also social connections Rorty, Richard, 215 Rose, Deborah Bird, 222 Rose, Nikolas, 202 Rosen, Nir, 89, 91, 93 “roundup republic,” 125 Rousseau, Jean-Jacques, 154, 293n3 Rowling, J. K., 314n2 rules of war (law of war) (armed confl ict), 168–176, 183, 235, 302nn25,26 Rumsfeld, Donald, 77 Russell, Bertrand, 229 Russia, 302n24, 306n60 Russian Empire, 20–21 Sabha, 286n25 Sadrists, 93 Saint-Pierre, Abbé, 154, 293n3

Samarra bombing, 88, 92, 93 Samuelson, Robert, 113 Saudi Arabia, 306n60 Savina, François Marie, 62 Scheckel, Susan, 214–215 scholarship, 2– 4 Schröder, Gerhard, 298n59 Schumer, Charles, 125 Schüsel, Wolfgang, 298n59 sciences, 197, 204 SCIFs (sensitive compartmentalized information facilities), 52 SCIRI (Supreme Council for the Islamic Revolution in Iraq), 89 Scots, 20 sea powers, 40 searches, 84–86, 90 security/insecurity: citizenship law and, 98, 110; civil liberties and, 255; clearing operations and, 86–87; cosmopolitanism and, 176, 179, 183, 193–194, 236; counterinsurgencies and, 34, 77, 78, 81, 87, 91; indigenous claims and, 217; Iraq and, 88–89, 91, 93; jus nexi and, 127, 129, 131, 135, 141, 146; neutrality and, 177–178; peace and, 236; rights and, 35–36, 41; Spain and, 181; U.S., 25, 43, 160, 274n6, 277n64. See also order and stability; wars self-defense, 182 self-determination, 208, 245, 248, 252–253, 262 self-interest, 105, 123, 178, 197, 206–207 selfishness, 303n32 Seminoles, 221–222 semiotic transfers, 212 Seneca, 229 sensitive compartmentalized information facilities (SCIFs), 52 September 11, 36, 37, 50, 105–106, 306n49 settler states, 214–216, 219, 220, 224 Shachar, Ayelet, 7, 284n15, 300n3 shadow global government, 17–18 Shahzad, Faisal, 97, 100, 106–108 Shi’as, 88, 89, 93 Shiites, 88, 89 Siam, 62 Sidgwick, Henry, 154 Simmel, Georg, 220 Simmons, A. John, 246, 248–249, 253–254, 257–259, 315nn5– 6

Index

Simpson, Audra, 219 Singer, Joseph William, 290n36 Sino-Vietnamese War, 272n41 slaves, 29 small-scale wars, 45– 46, 83, 92. See also terrorism; specific wars Smith, Phillip, 69 Smith, Rogers M., 102, 112, 136, 284n12, 285n4, 286n24, 292n62 sociability, 196–199, 201, 220, 221. See also social connections social connections, 130–132, 212, 219–220, 290n39. See also political community; rootedness; sociability; sociality; social practices social-contract theory, 120 social identities, 285n4 socialism, 167, 168, 200, 206, 251 sociality, 195, 196, 198, 200, 203, 212, 221, 224. See also social connections social network analysis, 75, 86 social practices, 99–100. See also social connections solidarity, 64, 104, 194 Somalia, 25, 32–33 Somali terror suspect, 173 Soros, George, 299n59 sous-pouvoir (infrapower /infrastructural power), 202 the South, 207–209 South Africa, 85, 169, 301n10 South Asians, 2, 32 Southeast Asia, 59, 62– 63, 71 Southwest Africa, 169 sovereignty (authority): capitalist, 18–19; citizenship and, 60; constitutions and, 297n35; cosmopolitanism and, 200–201; counterinsurgency and, 75–76, 81; democracy and, 316n15; identity and, 61– 64; indigenous, 212, 220–221; interstate system and, 30–34; justice and, 250, 253–254; Kant on, 247–248, 315n9, 316n22; limits of, 254–258, 316n18; oppression and, 115; partial, 270n1; political community and, 60; proxy wars and, 59; states and, 1, 2, 5; state sovereignty system and, 26; territorial control and, 259; wars and, 68. See also centralization (central authority); leadership; obligations (duties), citizen; sovereignty, multiple; state sovereignty system (interstate system)

335

sovereignty, multiple: cosmopolitanism and, 2; political rhetoric and, 60, 74; proxy wars and, 59, 61, 62, 66, 68, 74; subcontracted sovereignty and, 58–59, 61, 64, 67– 68, 73, 278n4; world government and, 149 sovereignty out of joint, 30–34 Soviet rhetoric, 294n3 Soviet Union (USSR), 18, 22, 47, 73, 178, 179 Soysal, Yasemin, 3 space, 211, 220 Spahn, Paul Bernd, 298n59 Spain, 181 spirit, 16 Spiro, Peter, 183–184 Sri Lankan government, 302n24 Stability. See order and stability Starr, Paul, 37, 39, 40, 48 state building, 19, 30–38, 47– 48 state failure event, 271n21 states (nation states): centralization and, 153; citizenship and, 32, 101–102; civil society and, 204; consent and, 120–121; cooperation and, 18; cosmopolitanism and, 168, 234–235; crises and, 15–18; delegitimation of, 196, 197; deterritorialization and, 195–201; duties and, 209; equality and, 166–167, 283n6; failure of, 270n13, 271n21; formation of, 15, 17, 20–34; freedom and, 254–255; functions of, 152–153; human rights and, 191, 196, 207; ICESCR and, 309nn38,40; imperial system and, 15–17, 19–21, 24–25, 29, 271n23; justification of actions of, 111–112; Kant on, 247–248, 254–255, 259; labor exports by, 209–210; laws and, 294n12; migration and, 32; militarism and, 11–12; morality and, 258–264; nuclear weapons and, 31; obligation to comply with, 248; peoplehood and, 259–260; place and, 212; plural citizenships and, 12; post festum problem and, 16; power and, 16–17, 27, 30, 32–33; rights and, 254–255; risks and, 194; sociability and, 199; as solution, 26–30, 34 (see also world government); sovereignty and, 1, 2, 5; violence and, 35, 39; wars and, 36–37, 51, 171, 176, 235 (see also law of war [armed confl ict] [rules of war]); weak, 25–26; well-being and, 208; world government and, 155, 158, 163–164, 206–207, 299n62. See also constitutions; federalism; obligations (duties), state;

336

Index

states (nation states) (continued) settler states; state building; state sovereignty system; strong states; territoriality (territorial control); specific states state sovereignty system (interstate system): crisis of authority and, 15–19, 30–34; formation of, 19–30; instability and, 21–26, 30–32; militarism and, 7; as solution, 26–30, 32–34; violence and, 2. See also antistatism; states (nation-states); territoriality (territorial control) Steputat, Finn, 59 Stiglitz, Joseph, 299n59 Stilz, Anna, 11, 317n32 Stoics, 229, 231–232 stories, 69–74, 279n7 Stowsky, Jay, 50–51 strangers, 220 stranger sociality, 221 strategic perspective, 176–183 strong states: as aberration, 31; constitutions and, 39, 40; defi ned, 273n64; instability and, 25–26; order and, 15, 20; partial sovereignty and, 58–59, 270n1; wars and, 5, 23, 29, 48 students, undocumented, 139–141, 287n5 Suárez, Francisco, 1 subjects, 225 subsidiarity, 155 Sudan, 302n24 Suff rage. See right to vote Sunnis, 87–90, 92, 93 Sunstein, Cass R., 45, 50, 51, 277n68 supranational entities, 18 Supreme Council for the Islamic Revolution in Iraq (SCIRI), 89 surrender, 303n26 sustainable economic development, 205 Swiss constitutions (1291 and 1848), 294nn12–14 Sypnowich, Christine, 166 systematic versus contingent, 166 Tamil rebels, 302n24 tariffs, 162, 298n56 Tarrow, Sidney, 5– 6, 58 Taussig, Michael, 67 taxes: cosmopolitanism and, 184; duty to pay, 244–245, 258, 259, 261, 314n2; EU and, 187; Kant on, 316n22; membership and,

133; rights and, 260; U.S. income, 162, 298n56; world government and, 152, 153, 161–165, 299n62 technology, 35–36, 39, 162–163, 284n16 temporary workers, 124, 287n5 “territorial inclusion,” 293n72 territoriality (territorial control): citizenship and, 101–103, 105, 211–212; citizens of the earth and, 211, 228–229; civil society and, 204; cross-border democratic attachments and, 292n61; embeddedness and, 222; federalism and, 156; governance of the prior and, 224; Guantánamo and, 284n12; human action and, 190; indigeneity and, 212; nationalism and, 219–220; politics and, 202; settler state and, 214; social connections and, 104; space and, 211; state authority and, 259; state failure and, 15; theory and, 223. See also state sovereignty system (interstate system) terrorism: Britain and, 302n20; cosmopolitanism and, 171, 173, 182; democracy and, 182; domestic, 97–98, 106, 107; Europe and, 181–182, 305n48, 306n49; expatriation and, 103, 106–110; Geneva Conventions and, 172–173; intent to relinquish and, 108; International Criminal Court and, 181; neutrality and, 180; personal insecurity and, 36; plural citizenship and, 97–99, 105–110; September 11 and, 306n49; threat of war and, 43; U.S. and, 36, 98, 106, 107, 173, 302n24, 306n49. See also Guantánamo; guerrilla wars; rebels; war on terrorism Thailand and Thai refugees, 59, 70–71, 280nn25,26 Th ird World nations, 170 Thompson, Robert, 80, 82 threat of, 43 Tilly, Charles: on democracy and war, 46; on failure of states, 16; on rights and war, 5– 6, 36–37, 43, 47, 56; on state formation, 26, 38–39; U.S. wars and, 40– 42, 57 time, 218–221, 225 Times (London), 28 Times Square car-bomber, 97, 100, 106 Tobin, James, 299n59 Tobin tax, 163, 299n62 torture, 278n4, 302n24, 303n28. See also Abu Ghraib; Guantánamo

Index

tourists, 262, 314n1 Townshend, Charles, 85 trade, 197, 207 traitors, 106 transformative wars, 46 transnationalism: Crusades and, 176; democracy and, 4; economic factors, 9; human rights and, 191, 206, 207, 209, 210; insurgencies and, 87; movements and, 273n63; regulation and, 18; stability and, 2–3, 6. See also citizenship, global; citizenship, plural; cosmopolitanism; world government (world governance) treason, 106, 107, 284n16 treaties: circumstances and, 217–218; citizenship, global, and, 236–237; civilians and, 173, 174; expatriation and, 107; Germany and, 177, 303n34; human rights and, 171–173, 297n39; quasi-federal systems versus, 297n42; rules of war and, 170; United States and, 174. See also specific treaties Treaty of Waitangi (1840), 217–219 Trinquier, Roger, 80 Tsing, Anna, 6, 7, 270n1 tuna fisheries, 18 Turner, Dale, 212, 222 tyranny, 294n7 Uganda, 32, 242 U.N. (United Nations): armies and, 161; dues and, 164; on globalization, 205–206; human rights and, 171, 185, 206; Iraq War and, 179–180; law of war and, 175; Libya and, 181; neutrals and, 178; Peace of Westphalia and, 1–2; Somalia, recognition of, 25; territoriality and, 105; world government and, 158. See also entries beginning with U.N. U.N. Charter, 175–176 U.N. General Assembly, 180 U.N. Human Rights Council (Committee), 174, 184, 302n19, 304n40, 306n60 U.N. International Covenant on Social, Economic and Cultural Rights, 184 U.N. peacekeeping forces (operations), 9, 161 U.N. Security Council, 175–176, 179, 180 uncertainty (insecurity), 35–36, 193–194. See also security/insecurity unconsciousness, 207 undocumented immigrants. See immigrants, undocumented (illegal)

337

unilateralism, 251–253, 257 United Front for the Liberation of Oppressed Races (FULRO), 279n6 United Nations. See entries beginning U.N. United States: cosmopolitanism and, 173; democracy and, 36; deportation and, 136–137; Europe and, 306n49; expatriation and, 103, 106–110; foreign aid and, 186; foreign-born population, 287n4; Geneva Conventions and, 172–173; Germany and, 188; imperial sovereignty and, 18; income taxes, 162, 298n56; Israel and, 304n40; Libya and, 181, 286n25; model for world government, as, 152–154, 159–162, 196n34; nuclear weapons and, 22–23; Philippines and, 169, 301n10; proxy wars and, 59; quasi-war with France, 40, 43, 45; rules of war and, 170; settler state nationalism of, 214–215; taxes and, 161–165; terrorism and, 36, 97, 98, 106–110, 173, 302n24, 306n49 (see also Guantánamo); treaties and, 174; tyranny and, 294n7; war and rights and, 40– 47; world government and, 154. See also American Indians; immigration; specific wars; entries beginning U.S. United World Federalists, 154 universal citizenship. See citizenship, global (universal) Universal Declaration of Human Rights (U.N.), 237 Universality. See cosmopolitanism; particularity Uppsala (Sweden), 43 Uruguay example, 261–263 U.S. Articles of Confederation, 156, 159, 161, 164, 297n36 U.S. (American) citizenship, 99–105, 131, 183. See also immigration U.S. Civil War, 40– 41, 48, 160, 302n26 U.S. Congress, 51, 106, 107, 222 U.S. Constitution. See also U.S. Supreme Court: armies and, 159; Bush and, 49, 50; centralization and, 150; cosmopolitanism and, 167–168; Fourteenth Amendment, 102, 103, 107, 127; Guantánamo and, 54–55; international law and, 102, 104; longevity of, 218; militias and, 159–161; plural citizenship and, 100–101; power abuses and, 150; public opinion and, 50; terrorism and, 100–101, 106, 109; Treason Clause, 107; “We the people” and, 292n62

338

Index

U.S. judiciary, 51 U.S. Justice Department, 53 U.S. Military Academy at West Point, 160 U.S. National Security Strategy (2002), 25 U.S. Patriot Act, 55 U.S. Refugee Act of 1980, 70 USSR (Soviet Union), 18, 22, 47, 73, 178, 179 USSR Constitution (1924), 295n19 U.S. Supreme Court, 50, 54–56, 101, 103, 104, 107–108, 131. See also specific cases utilitarianism, 224 utopianism, 186, 187, 191–192 Vance v. Terrazas (1980), 108 Vang, Lue, 280n22 van Gogh, Theo, 181 Vattel, Emer de, 301n8, 303n31 Vermeule, Adrian, 50 Verran, Helen, 212 Victorian period, 79–80, 281n9 Vietnam War: casualties, 272n41; counterinsurgency and, 76, 81; ethnic alliances and, 278n6; refugees and, 112; rights and, 41, 42, 45, 48; rules of war and, 170; transformative, as, 46; violence and, 78 violence: citizenship and, 60; cosmopolitanism and, 9; counterinsurgency and, 77, 78; free speech and, 184; Iraq War surge and, 87–91; law making and, 216; military ser vice and, 6; nonstate actors and, 33; proxy wars and, 59; sovereignty and, 67– 68; states and, 29, 31, 33, 35, 39; state sovereignty system and, 2; subcontracted sovereignty and, 68; Vietnam War and, 78. See also wars Vitoria, Francisco, 303n28 volunteerism, 247 volunteer soldiers, 160 voting rights. See right to vote VP (Vang Pao), 60, 63, 68–70, 73 Vue, Pa Chay, 63 Waldron, Jeremy: on coercion, 316n14; on indigenous peoples, 215–219, 223; on moral rules, 251; on natural duties, 315n5, 316n24; particularity and, 260; on property relations, 130; on territoriality, 259 Walzer, Michael, 112, 121, 144, 154, 285n6 war crimes, 174, 302n25, 304n40 warlords, 33–34

War of 1812, 45, 48, 107, 160 war on terrorism, 38, 49, 50, 53, 81, 82 war powers, 156, 158, 294n12, 296n31, 297nn36,45, 298n47 wars: anticolonialism and, 24; coercive foreign actions, 286n24; cosmopolitanism and, 180; crises versus, 19; cruelties of, 303n28 (see also war crimes); duration, goals, outcomes, sizes of, 45– 47, 57, 83, 92, 286n20; ethnic, 271n21; guerrilla/ irregular, 80, 172, 173, 174, 179, 302n24 (see also terrorism); international relations theory and, 42– 43; interstate, 272n41; “limited,” 272n41; losses in, 46– 47; market forces and, 31; nuclear, 31, 243; perfect, 117–118, 286n20; political community and, 39, 43, 60; postcolonial, 272n41; proxy, 58–59, 67, 73; restorative/transformative, 46; state formation and, 29. See also law of war; militaries; militarization; mobilization; rules of war; war crimes; and as subentry; specific wars war stories, 69–74 Washington, George, 160, 298n47 Washington Post (newspaper), 274n6 Watson, Diane, 222 Watson, Irene, 222 way-of-life argument, 121–122 weak states, 25–26 wealthy countries, 185–188. See also the North Weber, Eugen, 29 Weber, Max, 40 Weisberger, Bernard, 124 welfare, 36, 41, 49, 99, 183, 184, 218, 244, 290n34. See also entitlements; rights, social well-being, 135, 139, 205–206, 208, 209, 247, 310n40 Wellman, Christopher, 315n5 Westphalian system, 103–104 West Point, 160 “We the People,” 292n62 Whiskey Rebellion, 160 whiskey taxes, 162, 298n57, 299n60 Whitman, Jim, 302n24 Wilders, Geert, 181 Willett, P. Sabin, 56 Williams, Bernard, 224, 313n15 Williams, Eric, 29 Wilson, Mark, 49

Index

Wilson, Woodrow, 41– 42 Winichakul, Thongchai, 62, 279n9 Winks, Jay, 90 Wolfe, Patrick, 219 women, 48, 138, 207–208, 210, 279n14, 291n54, 292n65 words, 225 “word warriors,” 213, 224 work, right to citizenship and, 190. See also labor World Bank, 185–186 WorldCat, 300n4 “world citizen,” 227–228. See also citizenship, global (universal) World Federalist Society, 22 world government (world governance) armies and, 159–161; beginning of, 151–154; central authority and, 155–159; centralization and, 295n18; citizenship, global, versus, 227, 229, 243; concepts of, 17–18; cosmopolitanism and, 149, 205–206, 207; evolution toward, 9; expansion of, 165, 295n16; fear of, 149–151, 153–154, 165, 293n3; federalism and, 152–155, 295n23; global civil society and, 240; human rights and, 155, 158, 164; imperialism and, 294n9; institutions and, 158–159, 164–165; Kant on, 149, 154, 235, 293n2, 295n23; laws,

339

international, and, 157–158, 297n43; sovereignty of, 157–158; states and, 299n62; taxes and, 153, 161–165, 299n62; United States as model for, 152–154, 159–165, 196n34; war powers and, 158, 296n31; World War II and, 154, 295n21. See also cosmopolitanism; governmentality World Intellectual Property Orga nization, 300n66 world sovereign, 200–201 World Trade Orga nization, 185–186, 207 World War I, 16, 41, 44, 48, 169, 177 World War II: army and, 160; Britain and, 304n36; civil rights and liberties and, 50; democracy and, 47; neutrality and, 177–178, 303n34; rights and, 41, 42, 44, 45, 48, 49; rules of war and, 169; war crimes and, 174; world government and, 154, 295n21 Xiong, Blong, 68 Yang, Shong Lue, 63 Yoo, John C., 53 Zambia, 242 Zapatistas, 221 zoon politikon, 198