Citizenship: A relic of European legal culture?

A state is “the corporate body of a settled people equipped with sovereign authority”, wrote the influential Austrian constitutional lawyer Georg Jellinek in 1900. The defining characteristics of statehood are accordingly sovereign state power, a titular state people and a delineated state territory. This model of clear demarcations was formulated at the highpoint of the emergence of nation states, when they were at the peak of their legitimacy, and continues to shape international law to this day. National borders and national citizenship define an interior and exterior through legal means and thereby determine inclusion and exclusion.1However, the theoretical and ethical bases of this legal construction are beginning to seem increasingly flawed.

Two waves of globalisation have undermined – and continue to undermine – the spatial concept of an economically and politically self-contained state. Worldwide flows of information, economic activity, communication and above all migration contradict conventional understanding of national statehood based on static models, in which the population is tied to one location, cultures are nationally delimited, and borders are only crossed as an exception. Political practice drives these developments forwards. The freedom of movement within the united Europe – the dissolution of borders for communication, goods and travel – has shaped the continent’s de facto existence to such an extent that it determines how leading European politicians imagine Europe ought to be: border checks should no longer be possible because they can no longer be conducted in practice. Praxis creates a theory that, in turn, confirms praxis. The advance of universalist global ethics and the humanitarianism of human rights legitimise a global politics of morality. Against this, the boundaries of traditional nation states seem at best anachronistic and at worst theoretically simplistic and ethically illegitimate.

The abandoned border checkpoints are tangible signs of this development within Europe. At the same time, the less visible demarcation of citizenship, the membership of the state community, has come in for heavy criticism, both theoretically and at the practical political level. The current logic of citizenship grants rights on the basis of the accident of birth in the system of nation states. But the deep social inequality between states makes this a lottery of birth and an enduring infringement of the universalist ethos of equality.2Together with the fact that, since the 1970s, rights have been partially uncoupled from citizenship status, especially in Europe, this has meant that citizenship has been seen today as no more than a necessary organising factor in the transition to a period of “post-national membership”.3

In the following I will show that the best guarantor of the individual’s “security and freedom” – at least in Europe – continues to be legally circumscribed membership of a political community analogous to national citizenship. This thesis rests not on an ethno-cultural concept of collective identity; on the contrary, it views the individual strictly as part of a political, democratic community. It thereby addresses the question of whether and to what extent the demarcation between political entities along personal lines provided and continues to provide the individual with a basis for and increase in security and freedom.

Citizenship in Europe around 1900

Europe around 1900 was a continent undergoing upheaval. The period between the turn of the century and the outbreak of the First World War was the peak not only of European imperialism but also nationalism, the central concept of state legitimation since the French Revolution. Both “empire building” and “nation building” came together through their fixation on space as the material basis and symbol for acquiring and consolidating political power. Today, we know more clearly how much the transcontinental imperial extension of European society nationalised the metropolitan societies of the European colonial states and thereby promoted the development of national particularities and distinctions. The intensification and radicalisation of national movements in the European states at the turn of the century was often accompanied by the perception of an external threat, symbolised and heightened by the immigration of people perceived as deeply alien and therefore inferior.

Claude Monet: Rue Montorgueil with Flags (detail). Source: Wikimedia

The states’ nationalising self-demarcation against outsiders was strengthened by the development of the welfare state. This controlled its resources more strictly and distributed them according to national criteria. The legal institution of citizenship connected all these developments. It embodied the need to determine membership of the interventionist military state in a more precise, bureaucratised manner. The aim was to establish the number and treatment of both the poor and soldiers, to better identify membership of the nation state, and to mark out the citizens of the nation state, granting them rights and duties different from non-members. The greater protection of security and freedom had a negative aspect, of course, insofar as these were treated not as human rights, but as privileges enjoyed exclusively by national citizens. The result was to entrench the legal distinction between citizens and foreigners. This became obvious when thousands of foreigners deemed “undesirable” were expelled together with their families, without human rights protections or consideration of the fact that they been long been resident in the country.

This is what happened in the German Empire in 1885/1886. More than 30,000 migrants from Russia and Austria-Hungary were expelled as part of an anti-Polish and anti-Semitic defence policy. By contrast, German citizenship proved its protective power by preventing even despised “enemies of the Reich” such as socialists, Catholics and Jews from being removed. The emerging consensus in international law that one should protect one’s own citizens from expulsion but not foreigners strengthened the significance of citizenship. In turn it increased the vulnerability of those living outside their state of origin.

This effected above all the growing streams of all those who, in the wake of the industrial revolution and first wave of globalisation that followed, emigrated to other European states or left the continent altogether. The legal distinction between foreigners and citizens deepened still further, in that it increasingly connoted an existential difference between those who “belonged” and those who did not. National and ethnic discrimination made its way into the naturalisation policies vis-à-vis other European states. The German Empire’s restrictions on Slavic and Jewish migrants and the preference given to Roman Catholic immigrants in France are examples of this.

An even greater impact was had by the increasingly racialized demarcation and discrimination following the global expansion of European colonial empires. The inorodtsy or “foreigners”, primarily the indigenous peoples of the Asian parts of the Russian empire, the sujets-indigènes of the French colonies, the eingeborene or native inhabitants of the German dependencies and the “subjects” of non-European descent throughout the British Empire had anyway enjoyed only limited protection as citizens in their relations with other states. But inside their colonial empires, they were strictly and permanently deprived of the full rights and freedoms of British, French, etc. citizens. In the metropoles, the basic principle of equality between citizens prevailed; however, in the colonial space, this gave way to an equally firm principle of discrimination according to cultural and “racial” attributes.

The era of world war: Citizenship between democracy and the racial state

The explosion of violence in the First World War hardened all of these demarcatory trends into a system of border strengthening – both in territorial and personal terms. The “world of yesterday” described by Stefan Zweig as a universe in which one could cross state borders without onerous border checks gave way to an order dominated by the delineation of national affiliation, the mapping of collective identities, and the establishment of strict, bureaucratically organised and technically refined controls.

With universal conscription, the war opened up an existential dimension to citizenship that remained hidden during peacetime. At the beginning of the twentieth century, male citizens were duty-bound as soldiers to lay down their lives for the good of their state. Citizenship divided friend and foe and, on the basis of law, established armed communities that opposed one another politically and symbolically. This in turn shaped civilian society. Foreigners and neighbours who belonged to enemy states became “enemy aliens” who could have their freedom and rights taken away from them, even if they had been living in a the country for a long time. Compulsory identity cards and border checks were introduced. Initially intended as temporary wartime measures, they inaugurated an entire age of European demarcations and were only abandoned after the end of the Cold War.

However the demarcations did not end at the boundaries of citizenship and states. Behind a screen of legality, a fundamental principle of citizenship – the right of all citizens to equality and protection – began to erode. In 1914/1915 both France and Britain introduced denaturalisation for citizens viewed as suspicious because they had once belonged to “enemy states”. This new sanction gained a permanent place in the arsenal of national demarcation. The floundering tsarist empire took these exclusionary measures even further by deporting and dispossessing its own citizens, subjects of the Russian crown above all of German and Jewish origin, en masse. This anticipated the later practice of the Soviet regime, which after its victory in the Civil War in 1921 revoked the citizenship of the more than a million Russians who had emigrated as political opponents, making them stateless.

In this way, a mechanism of selection became politically established that served citizenship while at the same time robbing it of its fundamental function of guaranteeing the equality, security and freedom of all citizens. National, ethnic and political criteria underpinned existentially far-reaching measures of selection, discrimination and exclusion within one’s own citizenry. Citizenship was no longer a safe basis for individual civil and political existence in Europe.

The first to feel this were those belonging to Europe’s communist and fascist authoritarian systems. Citizens now became the objects of regime policy. The Nuremburg race laws of 1935 were the prototype for the reversal of the function of citizenship. From a legal institution on the basis of the equality of its members intended for their protection, it became a political instrument of racial discrimination. The National Socialist state did not grant rights and full protection to all its citizens, but only to Reichsbürger – citizens who belonged to the “Aryan race” . Ordinary citizens, who included all those classed as “Jews”, formed an inferior legal category. Before the National Socialist murdered the Jews with German citizenship who had remained in Germany in the Holocaust, it rendered them stateless.

However, what defines a whole epoch of “authoritarian high-modernity” was that the force of de-pluralisation and the creation of homogeneous societies affected all political systems, not just dictatorships. The interwar period witnessed the combination of the heyday of radical nationalism and the peak potency of nation-state interventionism. This development was exacerbated by a deep economic and political crisis of global proportions. Under these conditions, the European democracies also revealed their “dark side” (Michael Mann), realizing their potential to nationalise and homogenise societies.

Great Britain, the Weimar Republic and the French Third Republic, as well as the fragile young democracies of central eastern Europe such as Poland and Czechoslovakia, adopted numerous strict measures to limit immigration and naturalisation. Campaigns for the expulsion of foreigners, barely inhibited by humanitarian or human rights considerations, were an effective instrument for regulating foreign work forces and keeping ethnically or politically undesirable groups of foreigners at bay. These closure measures above all affected groups whose status was particularly precarious: the unemployed, political emigrants and refugees.

It is tempting to see in this, along with Gérard Noiriel, the “tyranny of the national”. However I do not share this moral verdict against the nation state, at least not as far as democratic states controlled by rule of law are concerned. For one thing, in Europe it was not nation states that were responsible for the huge misery, the precariousness experienced by the migrating masses of stateless individuals. Rather, the culprits were the dictators and totalitarian regimes that cast off traditional legal commitments and humanitarian conventions of international law in order to free themselves of their opponents as effectively and extensively as possible, while also destroying them symbolically. The suffering of refugees was intended not least to contribute to the destabilisation of the democratic states which, true to their basic principles of rule of law and humanitarianism, did not simply turn the refugees back – and indeed could not turn them back.

This historical process of mass disenfranchisement has given us one of the most clear sighted and bitter texts of political theory in the twentieth century – the famous third chapter of Hannah Arendt’s Origins of Totalitarianism. Referring to her own experience of living and suffering as a German-Jewish emigrant, Arendt put it as such: “it turned out that the moment human beings lacked their own government and had to fall back upon their minimum rights, no authority was left to protect them and no institution was willing to guarantee them”.4

Another reason to reject the notion of the “tyranny of the national” is that, while Europe’s democratic nation states often put up strict borders against outsiders, non-members, and foreigners, however as constitutional states they strengthened not only their own citizens’ freedoms and rights of political participation, but also their social rights. This demonstrates how, in a period of deep-seated economic instability, the rapid increase in demands on the welfare state raised the question of the limits of its ability to perform. The progressive nationalisation of many elementary rights, in other words the limitation of these rights to citizens, was the other side to their extension and substantial improvement. Ever since, the relationship between the qualitative improvement of rights and the need to distribute them selectively in view of the limited resources of the political community has been a core problem of every democratic order constituted and demarcated as a state.

Post-war: Citizenship between community building and liberalisation

The Second World War did not end authoritarianism in Europe and the authoritarian linkage of citizenship rights to the requirements of political, ideological or ethnic homogeneity. For example, the national People’s Republics of Poland and Czechoslovakia created after the National Socialist occupation turned the criteria of ethnic exclusion used by their former occupiers against them. They barred “ethnic Germans” from their socialist communities. “Soviet citizens”, “citizens” of the German Democratic Republic and other socialist states, as well as the Iberian dictatorships, enjoyed the protection and the limited freedoms of their states only to the degree that they were politically and ideologically compliant. Otherwise, they faced denaturalisation.

The western European democracies, by contrast, gradually shifted the boundaries of inclusion and exclusion. On the one hand, they began to open the criteria for citizenship to groups that in the past had been excluded for ethnic, racial or cultural reasons. On the other hand, they began detaching the guarantee of elementary rights from citizenship by increasingly accepting their link to human rights.

The first process of liberalisation, the opening up of citizenship, above all affected the European colonial powers. It did not happen entirely voluntarily. The exclusion of so-called “indigenes” from full rights of citizenship in the metropoles had become an explosive issue in the systems of late colonialism. It fuelled the bloodiest war of decolonisation, the Algerian Civil War of 1954–1962, and was a central motive for colonial subjects’ creation of independent nation states that would grant their own citizenship and thereby end the discrimination. They generally chose to form new national communities in which they had the say over which form citizenship would take.

The decolonised world outside Europe thus began its course toward nationalisation following the model of metropolitan interwar Europe. However, this was just one dimension of late colonial transfer. The degree of entanglement of post-colonial relationships became evident when former colonial subjects used their British, French, Belgian etc. citizenship to gain entry to the territory of the metropoles. The wave of post-colonial migration from the 1950s onwards fundamentally changed the western half of the European continent. The immigration of Africans and Asians from former colonies, who often carried the passports of their colonial rulers, permanently changed the ethnic, religious and cultural face of Europe.

The defensive paradigm of national and cultural homogeneity that had dominated the interwar period now confronted the demands of a democracy operating under the rule of law. Even a former colonial state could not simply reject or expel its non-white or non-Christian citizens. The phrase “the empire strikes back” succinctly sums up the process through which colonialism exerted a lasting and significant impact upon the European metropoles themselves. It changed the composition not only of populations resident within particular territories, but also of the citizenries within Europe as a whole. These became ethnically, religiously and culturally more plural.

But did immigrants end up enjoying the promises of freedom and equality as state citizens? Other mechanisms of exclusion suggest not. For example, the British immigration authorities limited the right of Commonwealth citizens from outside Europe to reside in the United Kingdom from the 1980s onwards. “Citoyens français” from the former colonial territories living in the banlieues were confronted by social and cultural discrimination, which was inseparable from the vestiges of colonial and racist prejudice. This reveals the limits to the protection that citizenship can, as a legal institution, guarantee.

The second opening up of citizenship took place with the growing importance and increasing implementation of human rights norms. Immediately after 1945, in response to the mass annihilation of the legal rights of the individual, these became the object of international codification. From the 1970s, a political situation finally developed in Europe where, both in the West and the East, human rights standards could be invoked not only against states but also against the ideological division of the continent. From then on, human rights became an effective rival to rights of citizenship in the struggle to implement individual rights.

The Helsinki Accords of 1975 provided the people of socialist Europe with an instrument with which to demand security and freedom from their states, which in the past they had been denied as citizens. In the West, the rulings of the European Court of Human Rights increasingly entered the national legal systems of the most politically influential CoE member-states. National citizenship rights were thereby no longer the only means of protecting individual rights in Europe, and the nation state no longer their only guarantor.

Instead, since the 1970s, there has in western Europe been an increasing tendency towards the denationalisation and de-territorialisation of individual rights. Social and economic rights in particular, for example in the areas of healthcare, social security and labour market access, have increasingly been decoupled from citizenship and its specific membership status. Intensifying flows of transnational migration, international agreements, and guarantees of human rights now began to mesh with one another.

Scholarly literature has often synthesised this into a single, overarching development. Talk of transition from citizenship tied to the nation state to ‘post-national membership’ is, however, exaggerated. The fact is that human rights did not displace, let alone replace citizenship as the basis for protecting individual rights. In both eastern and western Europe, the state remains the main addressee of people’s demands for security and freedom. Where, as in eastern Europe, citizens believed that the state had done increasingly little to fulfil these demands, it became the target of revolutionary resistance. By contrast, where the development of social services and the expansion of civil freedoms increased the state’s legitimacy, as in the West, citizenship became the very symbol of the modern welfare state. The English sociologist Thomas H. Marshall’s 1949 text Citizenship and Social Class, by now a canonical text in social science, gave a lucid description of this process of legitimation through rights of citizenship and continues to have a lasting impact. Citizens who enjoyed the fruits of these liberal, welfare state systems saw their social existence as being guaranteed via rights of national citizenship, not human rights, which at the most only augmented the former.

After 1989: Europe without borders?

Such was the situation in 1989, when for the first time since the ideological division of the continent in 1917 the chance arose to unify Europe politically and legally. This project unlocked Europe’s common legal culture in a new way. At its heart was the idea of citizenship as the basis of a liberal and democratic constitutionalism founded on the rule of law. Formed by the Atlantic Revolution at the end of the eighteenth century, two hundred years later it was the point around which a common European legal development crystallised: as an institution of the ius publicum europaeum.

After 1989, liberal democratic constitutionalism began its lap of victory throughout Europe. All the constitutional states created on the ruins of the Soviet bloc anchored the institution of citizenship in their constitutions, codified individual rights of citizenship and granted them comprehensive protection. Never before in Europe’s legal history had the liberal idea of an autonomous subject and bearer of individual rights been so dominant. Together with the guarantees of fundamental human rights inscribed into the new constitutions, citizenship rights provided the new European constitutionalism with a coherent basis for legitimacy, one that it had never possessed before.

While the European constitutions of the nineteenth century primarily sought to ensure popular participation in the exercise of state power, twentieth-century constitutionalism was often fragile or simply a fig leaf for deeply authoritarian systems. The upheavals in 1989 articulated a Europe-wide rejection of authoritarian systems in which the individual’s legal status was tied to their collective identity and enabled the autonomous exercise and defence of one’s rights. These were first and foremost the rights of citizens. Each state determined the concrete form of the rights they guaranteed, thereby preserving the consciousness of the specific relationship between the citizen and their state as guarantor of individual rights.

Is this interpretation not still trapped in the etatism and nationalism of the last century? Cosmopolitans and cosmopolitan theories of law will point to the undeniable increase in the legal significance of human rights throughout the world. Additionally, they can argue that, with EU citizenship, nation states’ monopoly on defining identity has been overcome in the heart of Europe. EU citizenship is a decidedly supra-national legal institution of political affiliation created by the will of the European member states to open borders, guarantee EU citizens the greatest possible freedom, and to entrust the protection of this to European institutions.

When one considers the two-hundred year tradition of the European nation-state, one central innovation of EU citizenship indeed has essentially revolutionary features. The introduction of the right of EU citizens to take part in local elections in every EU member state severs the link between the democratic franchise and citizenship that since the French Revolution has been seen as indissoluble. The fundamental connection between the right to vote and membership of the nation-state is at the core of what citizenship has meant historically. Since the 1980s, political initiatives emerged in many European states to counter this by integrating foreigners with permanent residency rights into state decision-making by granting them the right to vote in local elections. As late as 1990, the German constitutional court strenuously resisted this by appealing to the unity of the democratic nation. In 1992, however, European constitutional law acquired primacy. This codified the will of the EU member states to introduce a partial denationalisation of core democratic rights, after an epoch of nationalisation and national segregation of citizenship rights within self-contained nation states.

However this step did not abolish the old principle: the legal status of EU citizenship still proceeds from citizenship of a member state. It sets national citizenship as a prerequisite and does not replace it – as European law explicitly states.5 Acquisition of EU citizenship is subordinate to acquiring citizenship, which is under the purview of the sovereign member state. Member states defend their right to define citizenship as a sign of their sovereignty. Long-held expectations in the scholarly literature notwithstanding, no convergence between the legal standards of member states has taken place in this respect.

On the contrary, recent struggles over national affiliation point in the opposite direction. This is clearest in the central eastern region of the EU, but not only there. Here conflicts have emerged that have been brewing since the peak of European imperialism and nationalism. Hungary, for example, which in the 1920 Treaty of Trianon lost large territories to Rumania and Slovakia, has increasingly started reminding citizens of the latter two states that they have ethnic roots in Hungary. Russia, too, has discovered millions of ethnic “compatriots” in the neighbouring post-Soviet states, whom it is obliged to “protect” when a “threat” arises. In the light of these centrifugal developments, citizenships in contemporary Europe remain the fragments of a European legal culture.

But let us leave the cumbrous present and imagine that the EU states create a closer political union. They would then replace their national citizenship with a EU citizenship and convert their various national institutions into a unified ius publicum europaeum. However, even if the EU summonsed the strength to take this political decision, what would it mean for the borders of Europe as a renewed and more closely tied political unit? First, this political unity would have clearly defined borders. On the one hand, its territory would be demarcated from the rest of the non-European world, and access to it controlled. Many today see the strengthening of external EU borders and the construction of the common border guard Frontex as having been born of emergency. In practice, however, they are the precondition for deepening the political union and, who knows, the first step in this direction. On the other hand, EU citizenship remains a legal status of membership. In it, the security and freedom of Europe’s national citizens are not relinquished, but conserved. After all, the ability to define inclusion and exclusion remains an existential condition for every political unit. This is also true for Europe if it wants to remain in a position to guarantee its citizens protection and freedom.

How these borders of Europe should be shaped, and how the necessity of particular protection can be combined with the universalist precepts of humanitarianism – that is another story.