REVIEW

‘Law, Citizenship and Struggle’

Jo Shaw, University of Edinburgh and GLOBALCIT Co-Director

There is much of interest to legal scholars in this elegant recapitulation and summation by Engin Isin of his much-read and much-used political accounts of citizenship in law, in practice, in theory and – most importantly – in acts. This is not a book about law and citizenship, but rather an account of the politics of citizenship situated within a critical tradition; however, since it appears in a Routledge book series called ‘New Trajectories in Law’, edited by critical legal and socio-legal scholars, it would be surprising if legal scholars who wish to use Isin’s work to enrich their own work on citizenship were not to turn to this book. The book ranges freely across time and space to bring important insights regarding the fundamental characteristics of the ‘acts of citizenship’ that are Isin’s core political building blocks. It would be futile to pigeonhole this book as belonging to any one discipline of study. It is self-consciously and richly interdisciplinary, in relation to both the sources on which it draws and the argumentation which it mounts. However, it is worth noting that Isin’s observations on the nature of politics and political thinking position him broadly within the Austinian tradition of the philosophy of language. This tradition tells us that speech acts are foundational and constitutive elements of our lifeworld, not just descriptions of what exists ‘out there’. Speaking of citizenship in law is, therefore, an important descriptive and constitutive speech act. It is indeed political. Speaking of citizenship in law, using the tools and guidance provided by Engin Isin can inform the work of legal scholars by illuminating the concept of citizenship in different ways, including in relation to acts of resistance and revolt. Exploring the different dimensions of acts of resistance as acts of citizenship is central to the argument built in this book, portraying change in and to the law is, therefore, a part of the bigger picture.

Isin sets broad parameters for the concept of citizenship. First, he sees citizenship as an apparatus of government that makes peoples and things, both at the individual and the aggregated level: ‘citizenship is an apparatus by which governments create the appropriate administrative arrangements for partitioning peoples, individuating groups, and aggregating individuals as citizen subjects of government’ (p. 48). This is an approach which is highly congenial to legal scholars. Citizenship is not a primordial condition of humans, but rather a consequence of the organisation of humans into communities, which are governed (and/or self-governed) and which necessarily experience boundaries to other communities (unless at the planetary level – which is the subject of speculation in Isin’s final chapter). Citizenship, or full membership, can therefore also be seen as an important condition for the flourishing of humans in communities; equally, as an organising principle, citizenship disciplines as much as it liberates.

Second, as he shows through a distinction between the laws of citizenship and citizenship laws, Isin includes within the domain of citizenship a wide range of areas of social life which are commonly regulated by various manifestations of ‘the state’ (including the local state and the supranational state). Thus, the term ‘citizenship’, as used by Isin, does not only include what is classically known as ‘nationality’, and the laws of citizenship not only cover acquisition and loss, but also other mechanisms for creating and regulating citizenship (and non-citizenship) status so far as these operate as methods of sortition and as the frameworks for boundary-making between categories of persons. In ‘the laws of citizenship’, as defined by Isin, we might also expect to find matters intimate to the functioning of the body politic, such as the right to vote or to be elected, and participation in civic functions such as juries. However, Isin’s other category of ‘citizenship laws’ covers a wide range of areas of social conduct regulated by domains of law as broad as employment law, education law, taxation law, environmental law, health and medical law, migration law, human rights law, etc. That is to say, it includes any field of law which regulates what might be construed as the rights and obligations of persons, as citizen subjects of governments, focusing in particular on the facets of life that render a person a full member of a community. This is not only separate, in Isin’s analysis, from the ‘laws of citizenship’, but also wider than ‘citizenship law’ would generally be construed within most current legal scholarship, not least because in constitutional democracies the main operating distinction made by many national norms in relation to those fields of law tends to be around questions of lawful presence on the territory, rather than whether a person is formally a citizen (or national) or not. It is lawful presence, in many cases, which determines that a person can legally attend school or receive medical treatment. However, much sociological literature does use markers of access to public and social goods as important referents for ‘citizenship’, so we can see why that terminology is dominant in many parts of the literature. These are all signals to remind us that Isin draws the lines of citizenship, and especially the acts of citizenship, very broadly. Moreover, the concept of those citizenship laws which regulate conduct of citizens is performative in the sense that ‘the right to act as a citizen can come from outside the authority of a given polity’ (p. 50). There is, thus, always the capacity to subvert the restrictions and limitations built into any concept of citizens, as non-citizens may act, and be recognised, as citizens.

Third, citizenship as an apparatus of government has several paradoxical qualities embedded within it. It creates and partitions the people, but at the same time individuates them. It offers both the reality of domination, as peoples – both aggregated and individuated – are rendered legible to the state (and thus governable), but also the promise of emancipation, as both citizens and non-citizens struggle across the citizen / non-citizen ‘divide’ in order to contest hierarchies and ruptures which exclude certain categories and include others, e.g. according to racial or linguistic or other characteristics. So, as Isin puts it ‘citizenship produces both citizens and non-citizens’ (p. 72) and above all involves making ‘rights claims’ (p. 74). Citizenship is, therefore, for ever in the moment of transformation and contestation of in/exclusion. For Isin, this extends even as far as seeing citizenship as a revolutionary subjectivity. That revolutionary spirit enables Isin to think radically. Is there a future after citizenship?

What is the place of that most prosaic of materials, the law, in all of this? Two important distinctions in relation to the issue of law and citizenship are drawn in the book. The first is a distinction between ‘the laws of citizenship’ and ‘citizenship laws’, highlighted above. The second is a separation between citizenship in law and citizenship in practice (seen alongside citizenship in theory and citizenship in acts). The two have, according to Isin, separate logics (p. 50).

Thinking from within the discipline of legal studies, it is hard to see these distinctions as foundational, in the way that they are for Isin’s work. That does not mean that they should be rejected, but it emphasises that the specificities of Isin’s argumentation may need mediation if they are to be applied in different disciplinary contexts. Legal scholarship is, of course, a spectrum and for some the starting point is to conceptualise the law as a body of doctrine and for others it is a matter of adopting a socio-legal perspective in which law is seen in its wider social and political context. The distinction between laws of citizenship and citizenship laws, as defined by Isin, is hard to maintain as a matter of law because it is ultimately both blurred and problematic, although as a matter of the politics of citizenship acts, which drives Isin’s approach, it is easier to sustain, in the sense that it helps to show how changes occur in consequence of acts of citizenship. On that view, the actual law of citizenship, whether citizenship laws or laws of citizenship, in Isin’s terms, seems subsidiary to a set of political considerations. This is an unsurprising conclusion in terms of the well-established tropes of critical legal thinking, but it is not a conclusion that should be used to downplay the significance of thinking carefully about the distinctive features of law’s normative force and autonomous meaning, so far as this is visible in relation to the regulation of citizenship. As Jacob-Owens and Shaw (2023) have shown, ‘soft law’ is an important part of the governance and normative toolkit of citizenship, alongside the ‘hard law’ on which most texts would focus. Seen from the perspective of citizenship regimes, there is a rich variety of ‘laws’ and ‘norms’ at many different levels, covered under the broad umbrella concept of ‘the law’, and neither legal scholars nor social scientists should adopt a monocular and reductionist approach to ‘the law’. Furthermore, these norms are not neutral containers of ‘legal truth, but they often embed within them ideological content and the outcome of struggles and contestation. Law is not an empty arbiter of membership status, rights or identity, but a set of practices and concepts which are imbued with power and process. Positivist scholarship on ‘the law’ is, in sum, hard to combine fruitfully with a critical take on power. When reflecting upon Engin Isin’s work from a legal perspective, it is important to bring this point to the fore.

Finally, the distinction between citizenship in law and citizenship in practice might need supplementation, from a legal scholarship perspective. There is another angle that takes seriously a further distinction between law in the books and law in practice. One domain of the ‘laws of citizenship’ where such a distinction is very important is that of naturalisation. In reality, the law in the books on naturalisation is very frequently quite different to the practice of naturalisation, especially if there is substantial executive discretion in play and few fixed norms. Most national laws do not offer a ‘right’ to be naturalised if certain objective conditions are met but have some form of supplicative and discretionary process. However, this ‘law in practice’ conceptualisation seems separate from the concept of citizenship in practice which Isin articulates. Perhaps, in fact, the whole concept of citizenship law is not as susceptible to drawing neat distinctions as might be thought at first sight.

As noted at the outset, legal scholars will gain much from the close study of Engin Isin’s work, and in particular, the reflections on the multivalent and paradoxical concept of citizenship contained in this volume. Isin’s book demonstrates, perhaps to an even greater extent than he himself explicitly acknowledges, that there is a fruitful triangle of relationships to be explored between citizenship, the law and the politics of power.