GLOBALCIT Review Symposium of The People in Question: Citizens and Constitutions in Uncertain Times, Jo Shaw


Helen Irving, University of Sydney

Jo Shaw begins The People in Question with an observation: “It has become rather fashionable to express negative views about citizenship and not to hold it in high regard”.  An example follows: so-called ‘investor citizenship’ schemes. If, Shaw asks, citizenship “can be put on the market, and purchased by ‘high net worth individuals’, why should it be treated with reverence?” (p. 3). But there is an alternative view. Citizenship has “acquired a fundamental importance in relation to the organisation of human affairs into polities.” Which is it then? Is citizenship ‘an empty vessel’, to be filled as governments choose or theorists imagine? Or is it something with a substantive core? What, if anything, do the countless regimes of citizenship law around the world have in common? What is essentially constitutional about citizenship? Whatever our response, Shaw reminds us, “[w]e cannot … ignore the importance of citizenship” (p. 5). Yet, as she also correctly observes, there is “surprisingly little scholarship that attempts to analyse” the relationship between citizens and constitutions in detail (p. 10).

The People in Question takes on the task, exploring the multiple ways in which these questions may be framed, examined and answered. It is a kaleidoscopic undertaking; each time the lens is turned and the shapes re-settle, we gain a new perspective. Multiple examples of constitutional provisions are considered, alongside laws governing conferral and revocation of citizenship, the symbolic function of constitutions, the ‘stories of peoplehood’ attached to constitutions, and the populist manipulation of constitutional notions of ‘the people’.

Anyone who has written on citizenship, attempting to make sense of the correspondence between theoretical, normative, symbolic and historical accounts, all the while keeping tightly in view that citizenship is a status regulated by law and not just anything one might want or believe it to be, will appreciate what was involved in this work. In the Preface, Shaw describes the writing of the book as “a reconstruction of the ship while at sea”. Throughout, one senses the struggle behind the undertaking, and feels the triumph as each batten is nailed to the hull. Even where it is only a formal legal status, even detached from political rights, citizenship is not an empty vessel. But the question remains: what is it?

Among what Shaw tentatively calls a “number of thematic conclusions” on this question (p. 254) is the theme that effectively provides a response to the book’s opening observation. As a concept, Shaw tells us, citizenship is essentially contested. But citizenship is more than a concept. It is a legal status. At the same time, it is not merely formal. It carries with it a normative core across its multiple varieties and instances: a message of equality and dignity.

This perspective, in my view, is the book’s great strength. First, Shaw conceptualises citizenship as a form of identity in itself, more than the bundle of rights that are so often, and problematically, treated as definitional. Then, step-by-step, she confronts what can be called the ‘existential’ nature of citizenship, the under-recognised aspect of citizenship as a legal status. That is to say, Shaw treats citizenship as something more than the normative or idealised concept so often found in citizenship literature, but as a reality, an experience that is shaped by the law governing its acquisition and loss, and yet is deeply personal (or “intimate”, as a Canadian judge quoted by Shaw (p. 6), insightfully called it), and it is profoundly consequential with regard to a person’s life chances and prospects of flourishing, as Ayelet Shachar has compelling argued (Shachar 2009). Its loss is similarly consequential, even tragic, as is witnessed in the lives of stateless persons.

It is this theme that I would have liked to have seen pursued and pressed more directly in the book. The association between citizenship and equality is commonplace in the literature, but the idea of ‘dignity’ as a core quality of citizenship is still relatively undeveloped (Shaw’s analysis draws on Waldron (2013) who draws on Kant. Hannah Arendt, we can note, also makes this connection in evoking the condition of statelessness). More than 150 Constitutions worldwide “refer to dignity as a foundational concept or a right or freedom” (p. 81), but what do they have in common jurisprudentially? For dignity to do its work in illuminating what is at the core of citizenship, we needed to know more about what it means, both as a human quality and in terms of the legal consequences of its constitutional protection. Is its association with citizenship – “one way in which we, as humans, can help realize ‘human dignity”’ (p. 161) – a placeholder for a further expansive form of human equality, or a faute de mieux because full human dignity is too hard to capture in law? We need to consider, too, whether the concept of ‘dignity’ might be problematic. What counts as an assault upon dignity may not be universal; it may be culturally contingent, gendered, class-based. Might it, thus, compromise citizenship as a culturally neutral status? (Some of these questions are considered in McCrudden (2013).)

There has been much speculation in recent years about the ‘de-territorialisation’ of citizenship, and Shaw also addresses this issue, reflecting on, among other things, the emergence of supra-national citizenship regimes (such as the European Union), the rise of dual citizenship, the decline of citizenship by ius soli, and schemes for acquiring citizenship that do not require residence (such as descent or purchase). This shift, Shaw observes, has contributed both to scepticism about citizenship’s significance and doubts about its future. But, the reality is that the regulation of citizenship always occurs in a jurisdictional context, and the core jurisdiction remains the territorial state. If it were otherwise, states such as the UK and Australia would not have needed to introduce laws (discussed in the book) under which citizens who engage in terrorist activities can be stripped of their citizenship, in order to deport them or shut the territorial door against their return.

A citizen belongs legally to a place on the earth; he or she is always a citizen of somewhere. This is a matter of both the ‘internal’ dimension (the rights and duties of citizens within a country and their relationship to each other and to their state) and the ‘external’ (international recognition of persons as belonging under law to a particular state, and the state’s responsibility for its citizens). Whether this is advantageous or disadvantageous, whether it is meaningful or simply instrumental in the life of the citizen, where one has the legal right to live, is more than just a matter of convenience. It shapes the citizen’s sense of self, and of his or her relations with others.

If we accept this perspective, even the sale of passports in ‘investor’ citizenship schemes does not undermine the value of citizenship or damage it as an object of ‘reverence’. It may, indeed, emphasise its value. We may be uncomfortable with the idea that wealthy people can use their money in this way, motivated by the prospect of better business or travel opportunities, or improvement in their circumstances or quality of life (Džankić 2019) (but do those who have the great fortune to be citizens by birth in the richer countries of the world honestly see themselves as morally pure in comparison?); still it is problematic to suggest that paying for a passport is more dishonourable or damaging to citizenship than, for example, ‘inheriting’ citizenship by descent, without participation in the polity or any other claim to a ‘connection’, and Shaw is careful not to be dogmatic or ideological on these questions.

If we start down the path of discounting citizenship by descent or purchase, we problematise a common result – dual citizenship – and disregard, even denigrate a vast and growing number of persons around the world who want or need, for reasons of family, work, and security, to maintain a territorial right to more than one state, not to mention undermining cultural pluralism by requiring individuals who want to naturalise in the country of their residence to give up their legal attachments to another country. However acquired and whether single or dual, citizenship allows for personal autonomy, choice of opportunities, avenues of escape, and a freedom of movement that the stateless cannot enjoy. Those who oppose strategic citizenship on theoretical or normative grounds fail to engage with the actual experience of persons as citizens, including as members of families or communities in which different citizenships are held. Shaw’s reflection on citizenship as a form of dignity or a dignity-conferring status invites us to think squarely about such experience.

The personal/existential is also relational; citizens are members in common of a particular constitutional community. A constitution, as Shaw indicates, shapes the community of citizens, even if it makes no textual mention of citizenship, and even if (as in many instances) it speaks abstractly of ‘the people’. Nations may be ‘imagined communities’ (Anderson 1963) but fellow citizens are not imaginary. Legal citizenship concretises the abstract; it turns the abstract into the experiential. These complex, challenging perspectives are threaded throughout the book. Shaw writes, in my view, more diffidently about what she has accomplished than her work deserves. The book effectively joins the three parts of the “classic triptych”, as Shaw calls it (p. 174): status, rights, identity. Shaw’s contribution is to have done this, tackling hitherto under-explored dimensions of citizenship, offering a subtle, but convincing, rebuttal of its ‘fashionable’ negative treatment, while encouraging others to join in the ship-building task.