Strangers in each other's lands

Migration is doubtless one of the most politicized issues of our time. Since the tragic events of 2015, which culminated in what has become known as the European refugee crisis, Western societies seem to be more divided than ever before. Migration is not only heating up public debate; but it is also a divisive topic within political theory. Over the course of the last decade, an intense and as yet unresolved struggle has emerged about the rights of immigrants, the importance of citizenship, and the nation state's future role. Should borders be open as Carens (2015), Cole (2011), and other open border theorists suggest? Or should states retain their right to closure, as is argued by Walzer (1983), Miller (2016), and other thinkers in the liberal-nationalist tradition? Should settled immigrants enjoy the same rights as citizens? Or should they remain excluded from the social and political life of their host states until they have gone through the naturalization process? Without taking sides on any of these opposing positions, this article addresses one problem that all of them have in common: They neglect the political agency of their target group, namely, the immigrants themselves. Immigrants are either granted or refused entry; they are either provided with or excluded from citizenship rights, but have no say in these decisions. As such, this raises an as yet neglected democratic problem. To realize the core democratic values of individual freedom and self-determination, rights alone are not enough. If rights are to develop their full emancipatory potential, they must be brought under the control of their holders, who are free in a fuller, republican sense of the term only if they have the power to shape the legal relationship that ties them to the state. To overcome the democratic deficits that most approaches to migration currently display, this article aims to shift the debate from a focus on the rights that migrants should be granted to a focus on the process through which these rights are determined. It agrees with defenders of rights-based accounts that migrants—in a political order marked by distinct and bounded nation states—cannot directly participate in the political process that defines their rights and obligations. But it argues that they can be included in an indirect way, namely, via their national governments in a multinational setting. Such a procedural rather than substantive approach to migration requires, though, that we move beyond the level of national states and develop a multinational response to the troubling questions of inclusion and exclusion that haunt all modern democracies. To do so, this article proceeds as follows: Part I discusses the central problem that all procedural responses to the question of migrant rights inevitably face: the democratic boundary problem. Part II examines one of its most prominent solutions, namely, Seyla Benhabib's discourse theory of democracy. Based on a critical reading of Benhabib's account, Part III argues that democratic deliberations within national demoi are not enough to strengthen the political agency of migrants and therefore must be complemented by democratic deliberations among national demoi. In institutional terms, the article promotes the creation of a multinational and hence reciprocity-based regime of migrant rights and explores its practical feasibility on the basis of two concrete examples: the Global Compact on Migration (Part IV) and European Union citizenship (Part V). The striking preeminence of substantive approaches that we find in normative debates on migration is certainly not surprising. As theorists working on the so-called democratic boundary problem have shown, all procedural responses to the question of migrant rights inevitably run into an irresolvable dilemma: Questions of inclusion and exclusion cannot be settled in a democratic way. Any attempt to include noncitizens in the political process that defines their rights would lead to a reductio ad absurdum. It would have to presuppose precisely what is at stake, namely, that noncitizens do have rights, at least the right to participate in foreign states' public decisions (Whelan, 1983). Faced with the boundary problem, most democratic theorists have so far opted for one of two contrasting positions: They either defend contemporary nations and their membership boundaries or seek to circumvent the problem of borders by creating a borderless world. The first approach is generally adopted by thinkers who follow a predominantly nationalist tradition. Most nationalist democrats do not deny that boundary decisions violate core democratic values insofar as they are enforced not only against insiders but also outsiders and hence against people who, by definition, have no say in their making. However, assuming that boundaries represent a necessary background condition for democracy, they argue that it is best to stick with the membership boundaries we find today and accept their undemocratic externalities as the price we have to pay for the high levels of democracy they facilitate within. Unsurprisingly, this position is firmly rejected by cosmopolitan thinkers. Emphasizing the inherently undemocratic nature of membership decisions, in contrast to nationalist democrats, they claim that democracy can be realized only in a global polity that knows of no boundaries and hence no status differences between different individuals or groups of people (Ochoa Espejo, 2020, p. 77). However, despite leading to diametrically opposed results, both approaches share a common deficit: They ignore the political agency of noncitizens. Noncitizens are either excluded from or included in the circle of rights-holders, but play no role in the corresponding decision-making process. This is particularly evident in the first approach that reserves this process exclusively for the national citizenry. Of course, in contrast to traditional nationalists who defend contemporary nations' claims to absolute discretion in the distribution of membership rights, liberal-nationalist thinkers such as Bauböck (2005, 2015, 2018) or Rubio-Marín (2000) have adopted a more nuanced position. Seeking to reconcile national and liberal-democratic values, they urge modern nation states to reform their membership boundaries by severing the link between rights and formal belonging. However, even such a revised nationalist account remains vulnerable to the criticism raised above. Even if it would grant immigrants more rights than they enjoy under current citizenship rules, it continues to treat them as passive rights-recipients instead of active political agents, who can influence the legal relationship that ties them to the state. Importantly, far from being of purely theoretical concern, this passivity has tangible consequences in practice. As long as migrants have no say in the political process that defines their rights, these rights remain vulnerable to reactionary trends and tendencies that might gain ground in their host or destination countries. Indeed, just as national governments can decide to enhance the rights of migrants, at the same time they remain free to alter such decisions and, what is more, can do so at relatively little cost: Those who are most likely to oppose such measures simply play no part in the competition for votes and public support.1 Similar problems of passivity can also be discerned in the second approach. Although promising to grant migrants exactly the same rights as citizens, cosmopolitan theories of democracy do not fare better when they are assessed in terms of migrants' democratic agency. The global polity that cosmopolitan thinkers dream off is rarely envisaged as the outcome of a democratic process, in which its future members could be included to gain power over their rights and entitlements. It is rather presented as a moral desideratum, which precedes democracy and hence leaves no room for questions of democratic agency to arise (Lupel, 2011, pp. 133−136). An ostensibly elegant compromise between the two extremes of nationalist boundedness and cosmopolitan unboundedness can be found in the writings of Seyla Benhabib. Seeking to reconcile the existence of separate and independent nation states with their commitment to the freedom and equality of all people, Benhabib (2006) develops what she calls "another" cosmopolitanism, based not on open but porous borders. This porosity is guaranteed by the "rights of others," which all noncitizens would be able to claim (Benhabib, 2004, pp. 220−221). However, in striking contrast to the proposals discussed in the previous section, Benhabib's rights of others describe not a specific set or "schedule of rights" fixed in advance through moral or theoretical fiat. They must rather be understood as an abstract "principle of rights," which must be substantiated in concrete political processes involving all parties concerned, namely, citizens and noncitizens alike. However, to avoid the problem of circularity described above, Benhabib promotes an indirect form of interest mediation. Even if migrants could not directly participate in the process that defines their rights, their interests would be protected by the requirement that all decisions be in line with everybody's human rights (Benhabib, 2004, pp. 140−142). The specific type of proceduralism that Benhabib promotes becomes more tangible if we take a closer look at the concept of democratic iterations, which lies at the heart of her discursive approach. To translate migrants' abstract human rights into the concrete rights of others, which would be enforced by domestic courts, national citizenries have to engage in democratic iterations, that is, in "complex processes of public argument, deliberation, and exchange through which universalist rights claims and principles are contested and contextualized, invoked and revoked, posited and reposited" (Benhabib, 2004, p. 19). Although such an iterative process will not necessarily lead to the abolition of all status differences between citizens and migrants, it does change the status quo by limiting states' sovereignty in two important respects. First, it questions modern states' unconditional right to territorial closure, which Benhabib regards as incompatible with everybody's fundamental right to exit his or her political community.2 Second, it challenges absolute discretion over membership decisions, which compromises the democratic right of all individuals to participate in those laws to which they are subject (Benhabib, 1999, pp. 730−732; 2004, p. 221). Based on this short overview, we can now return to the preceding section's analysis by examining whether or not Benhabib resolves the problem of political agency outlined at the beginning. Even if she improves over substantive approaches to migration by including the perspective of migrants in the political process that defines their rights, ultimately, she cannot fully avoid the criticism made against liberal-nationalist and cosmopolitan thinkers. To escape the pernicious circularity that haunts all procedural approaches to questions of inclusion and exclusion, Benhabib resorts to what Hans Lindahl (2009a, p. 137) calls a "move from politics to morality." Although the claims of noncitizens are no longer ignored in the process of decision-making, they are incorporated as moral rather than political claims. Benhabib's discursive approach is thus not based on political reciprocity, which characterizes collective decision-making among fellow citizens. It rests instead on a less demanding form of reciprocity, which Benhabib describes as egalitarian. While as fellow humans but not fellow citizens migrants need not be given a right to participation, they must be given a right to justification (Benhabib, 2004, p. 13). Accordingly, the rights of others, which Benhabib offers as a response to the boundary problem, do indeed remain the rights we grant to those others whom we define as foreigners. However, they no longer depend on our goodwill or generosity, but are "negotiated upon this terrain flanked by human rights on the one hand and sovereignty assertions on the other" (Benhabib, 2004, p. 47). Strengthening the moral but not political agency of migrants, Benhabib's proposal faces a similar problem to that of liberal-nationalist and cosmopolitan accounts: although it has the potential to improve migrants' legal situation, it leaves their rights vulnerable to changing political moods in their host and destination countries. In contrast to the claims of citizens, the universal human rights of migrants simply have no binding force. Without being backed by the coercive powers of an overriding authority, they cannot become more than moral constraints, which a sovereign community decides to respect to cherish its constitutional commitments, but which it can equally put aside for the sake of other purposes or reasons (Lindahl, 2009b, pp. 5−6). Were the impact of outsiders' claims on the demos' iterative reconstitution to reach beyond such a voluntary self-limitation, another kind of reciprocity would be required. This must be political reciprocity, which distinguishes both parties as equal participants in the process of decision-making and hence as participants with legal and not only moral rights to have their interests represented and respected. Contrary to the assumption underlying Benhabib's approach, this section will demonstrate that the idea of political equality, as needed to restore the democratic agency of noncitizens, does not necessarily force us to abandon distinct, national communities and create a single world state. Nevertheless, so as to render it compatible with the existing political order, we must reconceptualize the rights of others which Benhabib proposes as a means of correcting the border and membership regimes of modern states. According to the view represented here, Benhabib's proposal finally falls short of fully developing the emancipatory potential within her account of migrant rights, because she views these rights as being intrinsically linked to a specific community, namely, ours. The rights of others are the rights of those migrants who seek entry and admission into our polity; they are the rights we will eventually grant them. Such a view, though, is problematic both conceptually and empirically. From a conceptual perspective, it necessarily leads to an asymmetrical dialog between citizens and aliens. The boundary which such a dialog should reshape is already built in to it; it is constitutive of the process itself (Lindahl, 2009b, p. 6). In empirical terms, any particularistic conception of migrant rights fails to do justice to the high levels of interdependency, interaction, and mutual mobility that exist between contemporary states and their members. In an increasingly mobile and interdependent world, we are no longer either citizens or aliens, but assume both roles at the same time. We are, ideally speaking, all potential migrants, who might eventually demand entry and residence in the others' states. As Benhabib herself suggests, the reason why we can take on the perspective of migrants and publicly defend their needs and interests is that "we are all potentially strangers in other lands" (Benhabib, 1999, p. 732; emphasis added). However, in a world that is neatly divided into distinct nation states, this means that we are all potentially strangers in each other's lands. Far from being merely a minor change in wording, such reformulation has transformative force. As soon as we acknowledge that we are not only citizens but always also potential migrants and not just migrants but always also potential citizens, sharing this double identity with those we generally regard as others, we can start to imagine a democratic process that is no longer based on asymmetry, but on reciprocity, or more precisely political reciprocity. As potential strangers in each other's lands, we would no longer need to enter into a moral dialog about the rights we should grant to others who seek entry and admission into our state. Rather, this could become a political dialogue about the rights we should grant to each other in our respective territories. Reconceptualizing the rights of others as rights that citizens and noncitizens grant to each other and hence as universal rather than particularistic migrant rights clearly implies a move beyond the national level. To include both citizens and aliens, Benhabib's democratic deliberations can no longer be limited to the domestic realm but would have to be institutionalized at a higher political level. In terms of institutional design, this article's revision of Benhabib's account thus seems to require the creation of a global assembly, albeit thematically limited, which in uniting different nations' citizens takes binding decisions on the rights that all of them could claim against the others' states. However, although such a reform would grant migrants an equal say over their own rights, thus effectively resolving the problem of agency, it nevertheless suffers from the same shortcomings as fully fledged cosmopolitan proposals: It would require a radical restructuring of the present world order and therefore can merely be regarded as an ideal solution to the lack of democratic agency that noncitizens face today. In any event, an elected legislative world assembly is not the only way in which the scope of democratic deliberation and decision-making can be expanded beyond national communities. To avoid the feasibility concerns associated with all forms of global democracy, as a second-best solution, the following paragraphs propose a shift from individual to collective political agency: Democratic deliberations about the rights of others would, in other words, no longer take place between individual political actors, be that at national or global level, but would instead involve collective political agents. Hence, different nations and their representatives would engage in joint deliberations about the entry and membership rights of international migrants. Based on these ideas, this article's response to the problem of political agency can now be specified further. If it should neither lead to a global polity nor collapse into a thin form of moral constraint, it must, as Benhabib argues, indeed be "another" cosmopolitanism, but another cosmopolitanism of a specific type: It must be multinational cosmopolitanism. The central actors here would still be existing nation states, but they would no longer enjoy absolute sovereignty over their internal affairs. When it comes to questions of inclusion, they would have to exercise their sovereignty in concert with all other members of the international community, which, through defining mutually binding migrant rights, jointly redefine the boundaries between them.3 to nationalist and cosmopolitan positions, which either the of collective or that of individual political agency over the multinational cosmopolitanism to equal to both and hence to reconcile the interests of migrants with those of their host and destination countries. from a procedural perspective, it political agency in a way that is compatible with the current political order and its of The rights of migrants would neither remain under the absolute discretion of national governments nor be by a global assembly, but would from common deliberations among all nation states. Although such a any form of political it does grant migrants an indirect say over their rights, namely, through their states of that would participate in the process that defines the rights of similar of interests can be if we multinational decision-making from a substantive of to its inherently it is likely to a between the two extremes of open and which are associated with cosmopolitan and nationalist Contrary to Benhabib's account, as being here, the rights of others have a They are not only rights that a given to but also rights that this state's own citizens can claim on the rights of others in the multinational above, national can be to have a double the same time as they to improve the legal of their citizens they are with the and of their internal political Accordingly, they are likely to on a set of rights that the of noncitizens, but does not the democratic of existing nation states. this of multinational cosmopolitanism all at the It a procedural response to the problem of political agency that can be realized in the here and membership decisions to a multinational level, it them to influence from noncitizens, but does not question the role of national states as the central political actors in the international However, a course between nationalist and cosmopolitan positions, multinational cosmopolitanism is, of course, vulnerable to criticism from both From a cosmopolitan perspective, its in its for decision-making, which ties migrants' political agency to their states' to represent their interests at international level. Although such an indirect form of better in terms of practical it also a set of normative which those that can already be in existing such as states or the European Indeed, in to such as or different democratic among states, the indirect outlined faces an to strengthen migrants' democratic agency on in their countries. However, despite these it would be a to multinational migration for an ideal world in which all states are not only equal in but also democratic and open to from their citizens. Rather, we should view it as one part of a which would not but domestic in a mutually way. based deliberations about the rights of others are an important for the indirect of multinational decision-making, but can also from the migrants with a on which to and publicly defend their international migration can facilitate the creation of formal and migrant that in individual political actors in their struggle for and to their such will be able to to the of people on the move and can as such debate within the states. In contrast to cosmopolitan who might of multinational procedural rules, are likely to criticism from a substantive of If the international community is to on a common set of migrant rights, we will certainly up with a level of than is by liberal-nationalist Nevertheless, such an the practical but only if multinational migration is regarded as an to measures at the domestic level. as a though, it improves migrants' legal even if their host states decide to grant them a higher level of in international migrant rights are no longer under national discretion and, for this more to domestic Of course, as with all proposals discussed in this multinational cosmopolitanism for its on a commitment to improve the of migrants. In the of a higher order authority, it cannot states from or international However, to adopted at national level, multinational cosmopolitanism for from or of not only need to be publicly the of international and domestic but they also at a cost: As soon as states decide to their multinational commitments, to their they not only the rights of but also the rights that their own citizens can claim the heart of multinational cosmopolitanism is a that any of migrants' legal cannot on individual states' As long as migrants have no influence over their own rights, these rights remain vulnerable to changing political within their host and destination countries. To strengthen migrants' political agency within the contemporary this article a of multinational migration In its most the would to an institutionalized which from all existing states to set binding for the entry and legal of migrants. Although such institutional existing two specific closer which multinational two different The cosmopolitan the global scope of this political To the of multinational cosmopolitanism, all existing states would have to participate in the international migration regime outlined above. If even one single to the problem of political agency would citizens would not be represented in the multinational they would be to influence the mobility and membership rights that their relationship with foreign states. But this first namely, that of does not merely require that all states participate in the multinational and the common migration regime it is to If the is of indirect democratic two or must be The multinational decision-making process must respect the freedom and formal equality of all states. As national governments and their as the representatives of their citizens, they can neither be into multinational nor be on terms precisely what should be namely, the equal political agency of all the condition of which the sovereignty of states by both their freedom and formal equality, the second condition is in the multinational all states to the absolute discretion they currently enjoy over noncitizens. As we have two of rights would no longer be under their the mobility and membership rights of people on the Even if this present account from substantive approaches to migration insofar as it to a specific set of rights that all states would have to grant to migrants, it nevertheless their sovereignty in an indirect way, by their to to the multinational migration regime and hence to open their migration to the joint influence of all other states. the international community defines as common migrant rights, its decisions would be binding and would therefore have to be by all states. If the two of and are that is, if all existing states their sovereignty to take joint decisions on the entry and membership rights of migrants, the problem of political agency would, at least be noncitizens would be represented in the multinational and as such be to influence the level of freedom and they enjoy in to foreign states. a between cosmopolitan and nationalist positions, the of multinational cosmopolitanism claims to a solution to the problem of agency that can be realized in the here and and bounded political communities would to form the central of decision-making, but would no longer enjoy absolute sovereignty over all individuals under their When it comes to people on the they would be by the common set of mobility and membership rights that all states jointly define at international level. The idea of sovereignty would thus not be but with a view to boundary decisions under the joint of all those rights and they could that the present

Agency (philosophy · Citizenship · Democracy · Human rights · Immigration · Miller · Nationalism · Naturalization · Political economy · Political science · Politics · Refugee · Social science · Sociology · State (computer science · Law · Migration and Labor Dynamics · Migration, Refugees, and Integration · Political Philosophy and Ethics

• From rights to democratic agency

  Open Access•Eva‐maria Schäfferle•Migration Studies•2025

  Add to list

• From legitimate boundaries to legitimate boundary-making

  Open Access•Svenja Ahlhau•Critical Review of International…•2024

  Add to list

• Boundary assembly

  Open Access•Svenja Ahlhau•Global Constitutionalism•2024

  Add to list

• A Republican Europe of States

  Open Access•R Bellamy•Republican Europe of States•2019

  Add to list

• Citizens, Residents, and Aliens in a Changing World

  Seyla Benhabib•Citizenship Rights•2017

  Add to list

• Strangers in Our Midst

  David Miller, David Leslie Miller•Strangers in Our Midst•2016

  Add to list

• The Rights of Others

  Open Access•Seyla Benhabib•Rights of Others•2004

  Add to list

• On Borders

  Paulina Ochoa Espejo•On Borders•2020

  Add to list

• Immigration as a Democratic Challenge

  Open Access•Ruth Rubio-Marín•Immigration as a Democratic…•2000

  Add to list

• Democratic inclusion

  Open Access•Rainer Bauböck•Democratic inclusion•2018

  Add to list

• The Global Compact for Safe, Orderly and Regular Migration

  Open Access•Kathleen Newland•International Journal of Refugee…•2018

  Add to list

• Global Migration Governance

  B Mayer•International Journal of Refugee…•2012

  Add to list

• Comparative Citizenship

  C Joppke•Law & Ethics of Human Rights•2008

  Add to list

• Temporary migrants, partial citizenship and hypermigration

  Rainer Bauböck•Critical Review of International…•2011

  Add to list

• When Migration Policy Isn't about Migration

  Open Access•Tendayi Bloom•Ethics & International Affairs•2019

  Add to list

• Narrating an ideal migration world? An analysis of the Global Compact for Safe, Orderly and Regular Migration

  Open Access•A Pecoud•Third World Quarterly•2021

  Add to list

• Tokens or Stakeholders in Global Migration Governance? The Role of Affected Communities and Civil Society in the Global Compacts on Migration and Refugees

  Open Access•Stefan Rother, E Steinhilper•International Migration•2019

  Add to list

• From Zero to Hero? An analysis of the human rights protections within the Global Compact for Safe, Orderly and Regular Migration (GCM)

  Open Access•Elspeth Guild, Tugba Basaran et al.•International Migration•2019

  Add to list

• The Global Compacts on Refugees and for Safe, Orderly and Regular Migration

  Open Access•Elizabeth Ferris, Elizabeth E Ferris et al.•International Migration•2019

  Add to list

• The Government of the Peoples

  Open Access•Francis Cheneval•Government of the Peoples•2011

  Add to list

• Spheres of Justice

  Michael Walzer•Spheres of Justice•1984

  Add to list

• Morphing the Demos into the right shape. Normative principles for enfranchising resident aliens and expatriate citizens

  Rainer Bauböck•Democratization•2015

  Add to list

• Expansive Citizenship—Voting beyond Territory and Membership

  Open Access•Rainer Bauböck•PS Political Science & Politics•2005

  Add to list

• Strengthening migration governance

  Colleen Thouez•New Community•2019

  Add to list