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


Jo Shaw, University of Edinburgh and University of Tampere

As the author of a book, it is a rare privilege to enter into an extended discussion with one’s readers. I am very grateful both to my colleagues at GLOBALCIT for organising this review symposium which has produced such wide-ranging and generous responses, and to the reviewers for their critical engagement with The People in Question (PiQ). At its best, the process of preparing, writing, publishing and introducing a new book to the world is iterative in nature, involving multiple feedback points, and opportunities to clarify and restate the argument. The five reviews commissioned by GLOBALCIT, along with a number of other reviews that I have received elsewhere, have already helped me immensely. But as is right and proper, the reviewers – coming from different backgrounds in terms of discipline and geographical orientation – are inevitably looking for different things when they subject PiQ to close scrutiny, and thus some of the comments they make would push me further in directions that might end up being incompatible with each other. Rather than taking each review in turn, I will try to pull out a number of themes that I see emerging from the reviews as a whole, referencing back to what each reviewer has written as required.

The first theme concerns what type of book about citizenship I have written. PiQ is a book about the centrality of legal membership in a polity, but written – as several reviewers acknowledge – from an interdisciplinary perspective. That legal membership ought to be regarded as a crucial feature for each and every polity, given the centrality of a ‘permanent population’ to the (international) legal definition of a state, should hardly be controversial as a descriptive statement. Citizenship is imperfect, but in a world still dominated by Westphalian and ‘unfree’ states, it is all we have. It cannot be wished away, even if it is allocated in a seemingly random and certainly unequal manner across the population of the globe, as part of what appears above all to be a powerplay of states. Arguably, of course, it can be improved upon, and several reviewers, in particular Sandra Seubert and Rainer Bauböck, have invited me to consider that issue. I take the view, however, that if we want to ‘improve’ the conditions under which the allocation of individuals to polities takes place (that is to say, that having citizenship means something similar regardless of where one acquires it), then we should not start with citizenship but would need to focus first on how states operate within the international order. However, reforms to citizenship allocation principles would undoubtedly be one of the stopping points on any route towards a situation of greater inter-society equity in relation to citizenship (and indeed intra-society equity).

A second theme concerns the issue of constitutional citizenship. The beauty and the challenge of studying citizenship within the framing of polity building is that in moving beyond the formal confines of the rules determining who is and is not a member, we enter a complex and thus far surprisingly poorly mapped territory. This is the land of the constitution, and mapping that land implies engagement with constitutionalism as a normative system. In that respect, my approach is one which differs from that taken by many political scientists or political sociologists. My task in PiQ has been that of seeing where, as a legal scholar, I can take this approach, going beyond descriptive and observational analysis and entering into the realm of the interpretative. I am trying to offer an engaged coupling of citizenship, as artefact of government with, as Helen Irving points out, a jurisdictional base, with constitutional law, as polity foundation. It is important to point out, therefore, that this book is as much about constitutions as it is about citizenship. I am grateful to reviewers such as Sandra Seubert for acknowledging this point. As Seubert indicates, the book tries to contribute to ‘interdisciplinary discourse between constitutional scholars and political theorists, as well as between comparative and normative approaches’, and thus produces what she calls the ‘reconstructive approach’.

Pinning down constitutional citizenship is a harder task. One of the difficulties with citizenship lies in its inchoate nature both as terminology and as practice, as Chulwoo Lee suggests. On the one hand, we can start with the straightforward question of whether a person ‘has’ a particular legal status (although that question is by no means always amenable to simple answer). On the other hand, citizenship is also connected to other ideas such as democracy/the demos/the people, and thus polity foundation and formation, and the legitimacy of political power. In democracies, this is one the most important ways that citizenship connects with constitutions and constitutionalism. However, this raises the question on which Caroline Nalule muses, whether there can be ‘citizenship’ without democracy. In a formal sense, clearly legal membership exists outwith democracy. While this must necessarily be a certain form of citizenship, perhaps it is only citizenship in a rather degraded sense. My argument is that constitutional citizenship can help us to navigate the connection between individuals and polities under less than ideal conditions of democracy, but it cannot provide a tight analytical coupling that would offer scholars of citizenship, or constitutionalism, or both, that ‘aha’ moment when the scales fall away from the eyes. Too tight or rigid an analytical coupling of citizenship and constitutional law would be an inappropriate straitjacket for the idea of constitutional citizenship. On the contrary, the coupling reminds me of the perennial challenge posed by the coupling of the ‘legal’ or the ‘socio’ in the term: ‘socio-legal’ (within which broad intellectual tradition the book would locate itself). The idea of being ‘socio-legal’ does illuminate a certain sort of intellectual positionality, but it is a spectrum rather than a fixed point. As I noted in the introduction to this Symposium, what I am looking for above all is a way of reading citizenship in a constitutional way. The point of doing this is not in order to build some new theory or model of citizenship, but to understand it better in its proper context. It is surprising how little previous work within the socio-legal intellectual tradition has in fact engaged with this task.

In sum, my approach is positioned between and draws upon both a contextualised and comparative description of ‘just’ the legal status and its various attributes and those polity theories which come to us via the study of constitutionalism, where concepts such as ‘the people’ often become more prominent. Such theories embrace not only the liberal tradition in political thinking, as exemplified by several of the reviewers, but most explicitly by Rainer Bauböck and Helen Irving. Constitutional citizenship can also draw upon a wider range of political traditions, including those that focus on ideas of ‘world society’ and societal constitutionalism, as discussed by Chulwoo Lee, as well as agonistic traditions, as exemplified by some of the comments emerging in Sandra Seubert’s review. And of course, in practice, attachment to ethnic principles within the construction of ‘the people’ remains an important real world constraint for theory-building which seeks to offer alternatives to ‘the ethnic’. It is true that I can be subject to the accusation that I am neither consistent in my positions nor objective in my choices. However, as I am not trying to build a single ideal type applicable in all conditions, I can defend my theoretical agnosticism, my methodological pluralism, and my ‘reading’ of citizenship via a qualitative and highly selective lens that some might take issue with. That lens does not, for example, deny the usefulness of, for example, indicators and indices, but holds that these are likely to be most useful as research tools in the context of other intellectual traditions or methodological frames where I have less competence.

A further theme brought up by several reviewers concerns my use of principles of equality and dignity. I would argue, in our less than perfect world, that calibrations around these concepts are probably also the best we have when it comes to addressing the behaviour of states and governments. A glance at the recent UK Supreme Court judgment regarding citizenship stripping gives important insights into this point. The case is concerned with the stripping of British citizenship from Shamima Begum, a young woman who went to Syria to join or align herself with ISIS at the age of 15 (as discussed on GLOBALCIT by Rachel Pougnet here). Reflecting the shadows of an imperial approach to citizenship both during and after Empire (a point to which I return below), the UK courts have concluded that according to the letter of the (Bangladeshi) law, Begum is not rendered stateless by the withdrawal of her British citizenship, notwithstanding the fact she was born and raised in the UK, has no meaningful social connections with Bangladesh, and Bangladesh, as a state, has refused her entry, arguing that she is not, in its view, a citizen. Whatever the letter of the law, it is unsurprising that Bangladesh does not wish to shoulder the social burden of a person who was educated and radicalised initially in the UK.

The other issue concerns Begum’s attempts to appeal against the stripping of citizenship. Would the case proceed differently if the UK had the explicit constitutional guarantees of equality and – especially – dignity? Would that have avoided the Kafka-esque situation in which she has found herself after the Supreme Court judgment, unable to proceed with an appeal from a refugee camp in Syria, because the courts have decreed that such an appeal would not be fair, but not permitted to return to the UK to enable a fair appeal because the Supreme Court concluded that deference to executive decision-making in matters of national security must be almost complete. If the Home Secretary states that this represents a threat to national security, then this must be good enough for the judges, who cannot second guess such a question. This case has shown that so far as citizenship does have constitutional heft, as UK judges sometimes suggest, it does so only in the hands of the state, not in the hands of the citizen. For the latter, measures of loyalty and allegiance which hark back to a pre-modern era of subjecthood are the reference points, not dignity and equality. This is an important finding about the limitations of the UK’s ‘constitutional’ scheme for citizenship.

These points lead me nicely to Rainer Bauböck’s challenge to come off the fence and say whether or not citizenship should be constitutionalised. He then goes on to make the case for such a constitutionalisation to be based on the principle of genuine links, which he argues represents a reasonable basis for grounding political communities within the liberal tradition. I will approach the question slightly differently. First of all, I will come off the fence and say that despite my initial scepticism about the sparseness of the treatment of citizenship in many constitutional set-ups, I now acknowledge that citizenship is already widely if not universally constitutionalised, even if it is not necessarily explicitly included in that many formal constitutional texts in the way that, for example, human rights are. I can see both the advantages and the disadvantages of this. The key points were well stated by Rogers Smith in an oral discussion of The People in Question (see at 16’ 10”). I agree with Smith that formal constitutionalisation may cause more problems than it solves, especially where it involves deeply contested issues. But equally, as the Begum case shows, some forms of constitutionalisation could also provide cut-through remedies where otherwise an individual finds herself stranded within a Kafka-esque knot of administrative laws and process or in a scenario where courts effectively decree that citizenship is still subjecthood and not the empowering of the free and equal individual. The advantages of an approach which brings constitutionally-based remedies to the fore have to be offset against the possible disadvantages of empowering non-majoritarian institutions such as courts where democracy and thus majoritarianism itself is one of the values in play – i.e. the power within democracies to determine boundaries which identify ‘distinct and stable political communities’ (Bauböck). I end up back where I started, reasserting that constitutional citizenship is not, and cannot be, a single model. It is, at most, a defensible principle. It is the best we have at present, but it has its limitations.

Finally, I want to conclude this short response by highlighting what I think is the most serious challenge to the fundamentals of the project. This comes in the form of Caroline Nalule’s call for a thorough-going decolonialisation of the concept of citizenship, which demonstrates more clearly the significant gaps in the contemporary literature. Acknowledging the baby steps I have made in this direction, Nalule rightly states that more needs to be done. For example, we need more research on how both the languages and practices of citizenship, especially in Africa, have been imposed from the outside, without proper regard to the specific histories of the pre-colonisation societies. The recovery of historic practices destroyed by colonisation processes is an almost impossible task, but it is possible to discern the types of tensions which would arise if we were able to do this by looking, for example, at instances of indigenous claims-making around citizenship in a number of settler societies. There is the risk that these are dismissed as ‘just’ ethnocentric, and thus somehow less worthy of our attention in a contemporary world which views ethnocentricism as illiberal. But that does not make them less intrinsically valuable to those assert them, since they may be the only way in which certain cultural traditions can be preserved. As Nalule points out, the literature in this area is just emerging, and it is our task as responsible scholars of citizenship and constitutionalism to work in partnership with new and still emerging voices in order to complete this important work.