COMMENT
What are Džankić and Harpaz telling us about the future of citizenship?
Jo Shaw, Edinburgh Law School
The two books by Jelena Džankić and Yossi Harpaz that are the subject of this symposium are required reading for all scholars of citizenship: The Global Market for Investor Citizenship (‘Global Market’) and Citizenship 2.0. However, these are books which people will undoubtedly enjoy reading. They are empirically rich, well written, and comfortably and confidently anchored within many of the well-known analytical and normative literatures on citizenship, whilst each offering a distinctive contribution to their respective fields. Among the many aspects of citizenship that they touch upon are issues of global inequality as well as problems of equality within the polity. By implication, if not at all times explicitly, they engage practices of inclusion and exclusion which are characteristic of the Janus-face nature of modern citizenship. But it is by no means only specialists in citizenship studies who will find much of interest in these books, but also others interested in globalisation, marketisation, migration and mobility and other aspects of the twenty-first century condition.
The combined range of the two books is rather substantial, although there is some overlap in coverage between the two. To narrow my focus, I will concentrate on the central question that struck me as I read the books. What are Džankić and Harpaz each telling us about the future of citizenship? Indeed, does it have a future, and what form might that take?
Citizenship is widely understood to be an artefact or creature of governments (Orgad 2018), or perhaps better of governance (Shaw 2020). It would not exist without the superstructure of polities, which demand the organisation of humans into settled groups, thus immediately raising the question about how the boundaries between those groups will operate. But since citizenship is such an artefact, it is hardly surprising, in a world that increasingly combines neo-liberal economics with growing nationalism, such that some have more market-based and ethnicity-based freedoms than others, that it may also become an artefact of individual choice, within the parameters set by government. The focus of both books is on the implications of the changing parameters of government for those who are governed and organised, by reference to standard bundles of citizenship rights, status and belonging. Global Market and Citizenship 2.0 point out that we can observe a trend towards citizenship becoming an individual instrument for a person to alter his or her life chances and opportunities, rather than just a status or bundle of rights that citizens engage with only passively, which is either mostly done ‘to them’ (e.g. citizenship at birth) or is – if done ‘by them’ – framed as a process of supplication (e.g. via the swearing of oaths of allegiance by those seeking naturalisation, which are not demanded of birthright citizens).
This is not at all the same thing as saying that we are moving towards an era of active citizenship. On the contrary, many of the conditions for active citizenship are not applicable in the case studies delivered by these two books. But what they certainly do make clear is the complex and contested nature of citizenship, beyond the bare idea that it somehow equates to a passport.
Global Market focuses on the acquisition of citizenship ‘by’ investment, that is, in return for a transfer of wealth from the recipients of citizenship to the state vesting them with a new internationally recognised status. But it also stresses the long and often depressing story of polities using wealth in relation to citizenship as a marker of status, whether through purchase of citizenship or by limiting certain rights only to propertied (male) citizens. It compares cases of investor citizenship to scenarios where states confer citizenship by reference to qualities of excellence shown by particular individuals, highlighting to what degree states are exercising discretion in these fields (which will, inevitably, limit the freedom of action of those who seek a new status). It innovates, when compared to descriptive assessments of investment citizenship, with its analysis of how this change in status involves a range of market transactions, which engage not just the primary parties, but also third parties that can benefit from the exchange of citizenship for wealth. Global Market also draws out some important points concerning the operation of investment citizenship in the context of a multilevel citizenship regime, such as that applicable in the EU, and highlights some conclusions to be drawn regarding the possible special duties that Member States owe each other in a ‘complex, nested polity’ (Global Market, p. 208). Global Market tells us much about the structures and frameworks for citizenship by investment, but perhaps inevitably is lighter on the issue of motivations and individual instrumentalisation of the rules. Džankić herself acknowledges that this is a very difficult area to research.
Citizenship 2.0 looks at cases of what Harpaz calls ‘compensatory’ citizenship, where individuals use the various openings provided by states to gain a second citizenship on a non-residence basis. The compensation operates in respect of a weak ‘first’ citizenship. [The lawyer in me quibbles at this use of the word ‘compensation’, as I cannot get away from thinking of compensation as being linked in some way to the concept of deservingness, which underpins both fault-based and no-fault compensation schemes. Perhaps that echo is deliberate, but if it is then I am not sure it truly works.] Harpaz mainly focuses on birthright acquisition in the US (so-called ‘birth tourism’ by middle- and upper-class Mexicans for the benefit of their new-born children), kin-state acquisition of Hungarian citizenship by citizens of Serbia benefiting from an open external citizenship policy, and acquisition of ‘ancestral’ European citizenships in Western Europe by citizens of Israel. The studies are grounded in interview data as well as framing analysis of the relevant legal structures. In drawing out the implications of these case studies for understanding citizenship, Citizenship 2.0 claims that what we are now finding is just that: a new type of citizenship, which is a departure from Citizenship 1.0. Citizenship 1.0 has been a matter of tradition, and is constructed as ‘a sacred form of membership’ (Citizenship 2.0, p. 6). Harpaz returns to this ‘traditional’ construction on several occasions through the book, notably in the conclusion when he ties the decline of the ‘traditional’ approach to the rise of what he calls ‘the sovereign individual’. For example, he states that ‘Citizenship was traditionally understood as a sacred status that was intimately tied to national identity’ (p. 134). In contrast, citizenship 2.0 is a lighter citizenship, in which individuals can make many choices that the traditional relationship of state and citizen or ‘national’ did not permit.
While Citizenship 2.0 provides empirical evidence to allow to assess at least some of the meanings of citizenship in the contemporary world, its approach to one of the reference points of his central claims, namely that the history of citizenship encapsulates the idea of a sacred collective good, is rather light. This part of the analysis is simply not fleshed out. Hence Harpaz’s concluding thoughts about how citizenship is caught between individualism and (re-)sacralisation are perhaps less convincing than they should be, as sacralisation remains merely a claim, not a clearly demonstrated reference point. Global Market likewise claims that citizenship is changing, but rather than a focus on a binary of 1.0 and 2.0, its central premise is that citizenship is a ‘continuously transforming notion’ (p. 218), and the process of change is long-term, gradual and stepwise. This historical approach, backed up with evidence drawn from citizenship regimes dating back to classical times, seems better placed to avoid the reification of citizenship as ‘a thing’ (which is now not such ‘a thing’) rather than as a complex and often contested set of practices.
But human agency alone, even that of Citizenship 2.0’s ‘sovereign individual’ (and I retain considerable doubts about this characterisation given the complex political relationship between sovereignty, democracy and citizenship), is not sufficient for us to be able to understand citizenship and how it is changing. The articulation of citizenship also needs to make clear how one or more concepts of membership, both as an idea and as a set of practices, relate to the other building blocks of modern polities and groups of polities, in the state, sub-state and supra-state contexts. These include constitutions, notions of territory, and various mechanisms for articulating the togetherness of the polity, without which it would lack sufficient cohesion to continue to operate within the global system. None of this is, of course, hidden territory to either Džankić or Harpaz, and they do provide important insights in their books.
It is challenging for Džankić to delimit the scope of her study, given the different frameworks for passports, visas and residence conditions that she is dealing with, but from Global Market, it becomes apparent that most investor citizenship regimes are decisions of particular governments, and so are largely determined according to a partisan menu of political choices which may change over time. Furthermore, given the absence of social and political rights attaching to most investor citizens, and – in the case of the mass purchase of Comoros citizenship by the United Arab Emirates fora specific (discriminated) group, the Bidoon – not even the right to reside, it seems that investor citizens should not be understood as full political or perhaps ‘constitutional’ citizens. Investor citizenship arguably does not hollow out the constitutional framework of the destination polities precisely because of these limitations. But does its co-existence alongside a constitutionally grounded sense of ‘full membership’ change the meaning of citizenship and offer us only a dystopian future in which ‘money talks’, even more than it does at present?
In many of the cases described in Citizenship 2.0, individuals are engaging with or even manipulating a choice or contingency embedded in a state’s constitution, be it birthright ius soli in the US (since the 14th Amendment), Hungary’s construction of an idea of constitutional nationalism with an external face which allows it to claim more citizens (since 2011), and, in the case of Germany, the possibility of citizenship restoration provided for by the Constitution as a means of making some restitution for a historic wrong (since 1949). As Harpaz rightly points out, when these legal frameworks are combined with the global spread of dual citizenship, this does indeed open up many new options for strategic and instrumental behaviour on the part of individuals. [Even so, it must be commented that dual citizenship is hardly a universal norm given that three out of five of the world’s largest countries by population continue to prohibit it (in India’s case by means of a constitutional provision).] In this context, as Harpaz acknowledges (Citizenship 2.0, p. 140), the constitutional gateways and framing may be significant, especially with regard to the possibility that – in contrast to those means of acquiring citizenship which he describes in the book – conventional, ‘traditional’ residence-based naturalisation may in fact confer an inferior and more conditional status, because many states have recently made it easier to strip dual citizens of their citizenship without giving rise to the risk of statelessness. To put it another way, the structural conditions around polity-formation not to mention the ideational elements that frequently attach to it are not disappearing any time soon.
In the light of all of these comments, it is therefore not surprising that both Global Market and Citizenship 2.0 end on notes of uncertainty about the future. We may see more of the processes of citizenship acquisition analysed in the books. But we may not. We can see uncertain markets as neoliberalism comes under threat as the dominant mode of exchange in the modern world; uncertain borders, especially after COVID-19 and the closing of national spaces; and uncertain regulatory futures for dual citizenship in the face of the rise of populism and populist governments playing on fears of outsiders to ‘The People’. As Global Market puts it, there is much scope for more research to help us to understand the types of phenomena, which Harpaz describes as Citizenship 2.0. Indeed. But in doing so, we must remain clear-eyed about citizenship’s past, present and future.