Will Kymlicka, Queens University
Julija Sardelić’s book The Fringes of Citizenship offers a compelling analysis of the various ways that the exclusion of Romani minorities is produced by citizenship regimes and practices. She argues that the exclusion of the Roma results from the way states define and operationalise citizenship, not from any putative defects or deficiencies of Roma minorities themselves, and that remedying this problem therefore requires examining the “perceived normalities of what a citizen should be and how Roma are excluded from these normalities even when they are ostensibly included” (p. 26).
I agree with this analysis. I also agree that the Roma are not unique or exceptional in this regard, and that many other minorities in other countries are marginalised or excluded by prevailing citizenship regimes and their perceived normalities. As she notes, the problem is not unique to post-communist states, or to postcolonial states, or to so-called “ethnic nations”, but arises within Western ‘civic’ nations as well (p. 15, p. 100). And so, I fully share her concluding call to rethink our underlying ideas of citizenship, and her insistence that new policies and programs regarding the Roma are unlikely to succeed if they are not built upon such a critical rethinking of citizenship.
In this short commentary, I want to explore what this rethinking of citizenship might look like. It seems to me that Sardelić’s analysis could in fact lead in two very different directions in relation to citizenship. At the start and end of her book, Sardelić states that the goal should be to “reconstruct” citizenship so that it is “truly inclusive” (p. 20) or “fully inclusive” (p. 126). In the middle of the book, however, she appeals to the idea of “ethical territoriality” (p. 52). I think these are actually two very different goals, so let me try to sharpen the contrast between them.
The idea of inclusive citizenship, at least as it is standardly discussed in the citizenship literature, starts from the assumption that citizenship should track social membership: anyone who has made a life for themselves in a given society should be seen as a “member” of that society, and as such, should have a right to full and equal citizenship. Citizenship, on this view, is both an acknowledgement of someone’s social membership and is designed to affirm and express that social membership: inclusive citizenship enables people to feel at home in the country they have made their home.
This membership-based conception of inclusive citizenship obviously requires some rule for distinguishing short-term visitors from long-term residents. The latter are seen as ‘members’, whereas temporary or transient populations are not. The goal of inclusive citizenship is to ensure that all long-settled members have citizenship, regardless of how they initially entered the country. Someone may have entered a country irregularly, or may have entered initially on a temporary visa, but if they have lived in a country for, say, eight years, they should now be seen as ‘members’, and hence as ‘citizens’, since citizenship should track and uphold social membership. (Carens 2013)
It seems to me that much of what Sardelić says in her book fits this membership-based idea of inclusive citizenship. The vast majority of Roma, she argues, are not nomadic or transient, but live in long-settled communities, and they meet any reasonable criteria for being members of society. In many cases they are living in settlements they have inhabited for generations, and even in cases where they have moved, it was often movement within the boundaries of the state as it then existed – for example, within the boundaries of the former Czechoslovakia or Yugoslavia – and hence they are not ‘foreigners’ or ‘immigrants’. And yet, she notes, all too often, state laws and practices have operated to ignore or deny the social membership of the Roma, and instead define them as foreigners, migrants, or even illegal migrants. As she puts it, state definitions of citizenship “recategorise” or “transform” Roma from members and citizens “into unwanted, undocumented or irregular aliens through the reinterpretation of their belonging” (p. 111, p. 127).
So one way of reading Sardelić’s book is as a plea to rethink citizenship so that it better tracks the reality of social membership: insofar as citizenship laws and practices operate in a way that deny or render invisible the social membership of the Roma, they must be reformed. However, there is an alternate reading of her book. In one of the few passages where Sardelić explicitly states her ethical commitments, she appeals to Linda Bosniak’s idea of ‘ethical territoriality’, according to which “rights and recognition should extend to all persons who are territorially present within the geographical space of a national state simply by virtue of that presence”. It is important to emphasize that this is not a membership-based idea of citizenship, and in fact, is not an account of citizenship at all. On the contrary, Bosniak is famous for saying that we should “give up on citizenship as an aspirational project altogether”. (Bosniak 1988) For Bosniak, the remedy to the exclusions of citizenship is not to make citizenship more inclusive, but to abolish the idea of citizenship entirely. Citizenship inherently distinguishes members from non-members, and so requires some process by which non-members gain membership (e.g., some naturalisation process), whereas “ethical territoriality” is intended precisely to reject that distinction and that process. Bosniak’s ethical territoriality is intended to challenge the idea that there is a legitimate distinction between long-term members and short-term transients. For Bosniak, there are just human beings who are present on the territory of the state. So citizenship as a legal and political category drops out of her analysis, and rights and recognition are just owed to us as human beings. Confronted with a human being on the territory of the state, we don’t ask whether they are a citizen or not, or whether they pass some threshold of social membership. The goal is not a more inclusive account of who is a citizen, but rather to replace categories of citizenship with the sheer fact of territorial presence.
I’m not sure if Sardelić intends to endorse Bosniak’s idea of ethical territoriality. Some of her examples could be read as supporting Bosniak’s view. Whenever states distinguish members from aliens, and whenever states create legal processes for naturalisation and regularisation, the Roma have often been excluded. (For example, the legal process for naturalisation may involve documentation that the Roma do not have). A pessimistic reading of these cases might suggest that any effort to create a more inclusive citizenship that tracks social membership will fail, and as Bosniak says, we should just “give up on citizenship as an aspirational project altogether”, and focus on ethical territoriality instead.
I don’t have the space to explore this debate in detail: there is much to be said for and against both inclusive citizenship and ethical territoriality. But I would just note that for many minorities – and, I suspect, many members of the Romani minorities – one of the abiding injustices they face is the denial of their social membership: the refusal by the larger society to accept that they truly belong here, that they have made their lives here, and hence that society belongs to them as much as to others. They are treated as if they are foreigners, guests, or visitors when in fact they are members. Confronted with this injustice, we have two options: we can fight for the recognition of social membership through inclusive citizenship; or we can fight to render membership irrelevant through ethical territoriality. On Bosniak’s view, it doesn’t matter if the Roma are seen as guests or visitors, because on a territorial presence view, visitors have the same rights as long-term residents. Whereas inclusive citizenship seeks to track more faithfully and fairly the realities of social membership, ethical territoriality says that social membership has no significance and that only territorial presence matters.
This choice between inclusive citizenship and ethical territoriality is an ongoing one in legal and political theory. I have elsewhere argued that a stable democratic welfare state requires nurturing an ethics of membership that generates a sense of mutual obligation based on affiliation to a shared society, and that this requires distinguishing members/citizens from temporary or transient occupants of the territory. So my own inclinations lie in the direction of inclusive citizenship not ethical territoriality. But I also acknowledge the risks this involved, not least for minorities, and the need to reconstruct our stories of the “perceived normalities of what a citizen ought to be” in order to truly include various minorities in our conception of social membership. (Kymlicka 2022) In any event, I am curious to know Sardelić’s views on this debate. And it would also be interesting to know more about how the Romani themselves discuss these options. In some times and places, ethical territoriality may seem like the simplest and safest route to a minimum level of rights protection, for some Romani communities. But at other times and places, I suspect that the goal of inclusive citizenship will remain a powerful ideal as a way of acknowledging and affirming that the Roma are truly social members and not just (territorially present) foreigners, guests, or visitors.