Around the world, more people are being turned into denizens; they are having rights associated with citizenship whittled away, often without realizing it or realizing the full implications. Many are joining the precariat, an emerging class characterized by chronic insecurity, detached from old norms of labour and the working class. For the first time in history, governments are reducing the rights of many of their own people while further weakening the rights of more traditional denizens, migrants.
Mainstream politicians and political parties – on the right and left as conventionally defined – have become stridently utilitarian. While the past should not be romanticized, the class-based political parties that emerged in the late nineteenth and early twentieth centuries came closer to deliberative or participatory democracy. Groups debated and shaped class-oriented perspectives. By contrast, what has emerged in the globalization era could be called utilitarian democracy. Without class-based values or ideas of class struggle to guide them, politicians and old political parties have resorted to a commodified politics that focuses on finding a formula to appeal to a majority, often depicted as ‘the middle class’.
It scarcely matters to these politicians that their policies deprive a minority of rights and push them into the precariat. They can win elections as long as they can sell themselves to a majority. But the minority is growing by the day. And it is becoming restless, as the millions demonstrating discontent in the squares and parks of great cities testify.
Citizens and rights
The idea of citizenship goes back to ancient Greece. It made a stride forward in 1789 with the French Declaration of the Rights of Man and the Citizen, that stirring emancipatory call stemming from the Renaissance and its message of escape from a slavish ‘God’s will’. Henceforth, a citizen was someone who had rights. This was what Tom Paine – the Englishman who helped forge the American Revolution and Constitution, and the French Revolution – intended in his epoch-shaping tracts, Common Sense and The Rights of Man.
It fell to T. H. Marshall (1950), writing after the Second World War, to define citizenship in its modern form as ‘a status bestowed on those who are full members of a community’. To be a citizen meant having ‘an absolute right to a certain standard of civilisation which is conditional only on the discharge of the general duties of citizenship’. While Marshall’s later conception of the ‘duties of citizenship’ included a duty to labour, with which this book takes issue, he recognized the tension between rights and capitalism, noting that ‘in the twentieth century, citizenship and the capitalist class system have been at war.’ Citizenship imposed modifications on the capitalist class system, since social rights ‘imply an invasion of contract by status, the subordination of market price to social justice, the replacement of the free bargain by the declaration of rights.’
That was roughly correct in the ‘re-embedded’ phase of Karl Polanyi’s The Great Transformation ( 2001), the period of social-democrat supremacy between 1944 and the 1970s. In the subsequent ‘disembedded’ phase, contract has invaded status, and social justice has been subordinated to the market price.
There is also a tension between universal human rights, which should apply equally to everybody, and the idea of rights embodied in citizenship, confined to people with a certain status. Rights in the modern era have been depicted as ‘melting’ with citizenship (Bobbio 1990), with citizenship coming to be defined as belonging to an entity (usually a sovereign nation) and entitlement to rights seen as a function of that belonging.
In the early twentieth century, what Zolberg (2000) called ‘the hypernationalist version of citizenship’ predominated, leading to the ‘nationalization of rights’, which Hannah Arendt ( 1986) identified as leading to totalitarianism. Countries also took advantage of international migration. Some operated discriminatory quota systems, as the USA did in the 1920s to restrict citizenship mostly to those from ‘Protestant countries’. National citizenship became linked to obligations, notably to men’s duty to perform military service.
The end of the Second World War led to an advance in the framework of rights, with the Universal Declaration of Human Rights of 1948 and a spate of international documents, including the 1951 United Nations Convention relating to the Status of Refugees and the 1966 International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. However, while asserting universal rights, these reflected the conventional link between rights and national citizenship.
Thus the Universal Declaration (Article 13) interprets the right to freedom of movement as the right to emigrate – to leave a country – but not a right to immigrate – to enter a country. This is a recipe for leaving migrants without rights anywhere and without protection by national laws and institutions. As such, jurists have seen a contradiction between human rights and the territorial rights of national sovereignty embedded in the Universal Declaration. Similarly, the Refugee Convention asserts a principle of non-expulsion (non-refoulement) of refugees and asylum seekers, but does not grant them entitlement to the full rights of national citizens.
Rights are thus seen as a badge of citizenship, and only citizens have all the rights established in their own country. It is in this sense that most migrants are denizens – people with a more limited range of rights than citizens. But they are not the only group that fall into this category. As we shall argue, some migrants may have more rights than some ‘nationals’. The reality is that in the globalization era more people are being converted into denizens, through losing rights.
A human right is universal, applying to everyone. If someone is to be denied a right, there must be legally established reasons and strict respect for due process in denying it. Entitlement to a right is not dependent on some behavioural or attitudinal conditionality, other than adherence to the law of the country and due process. It is crucial to emphasize these points, since a contention underpinning this book is that governments are abusing them with increasing ease and impunity.
A full citizen has access to five types of rights – civil, political, cultural, social and economic – as recognized by the 1966 Covenants and by regional equivalents stemming from the Universal Declaration. Marshall (1950) famously asserted that civil rights were the achievement of the seventeenth century, cultural rights of the eighteenth, political rights of the nineteenth and social rights of the twentieth century. If so, we might say that the challenge ahead is to ensure that economic rights will be the defining achievement of the twenty-first century.
However, as emphasized by Bobbio (1990) and others, the nation state is not the only form of association for generating rights. Most of us belong to associations that establish and enforce individual and group rights within specific communities. A right is what is granted to those who join and remain good members of a club. That perspective produces an image of layers of citizenship and layers of rights. So we can think, for example, of occupational citizenship, implying that some have a ‘right to practise’ a set of activities with designated titles, such as doctor, lawyer, carpenter or baker, along with a right to receive income, benefits, status and representation or agency – rights developed and legitimized within an occupation, often over generations, as in the legal and medical professions.
A fundamental aspect is the right to belong to a community or a self-identifying set of communities. This is why freedom must be interpreted as associational freedom, a perspective that stretches from Aristotle through Arendt, but which has been lost by modern social democrats as well as by libertarians and neo-liberals, who see freedom in individualistic terms.
The main types of rights
* Civil rights include the right to life and liberty, a fair trial, due process, equality before the law, legal representation, privacy and freedom of expression, and the right to be treated with equal dignity.
* Cultural rights are rights of individuals and communities to access and participate in their chosen culture, including language and artistic production, in conditions of equality, dignity and non-discrimination.
* Political rights include the right to vote, participate in political life, stand in elections, and participate in civil society.
* Social rights include the right to an adequate standard of living, social protection, occupational health and safety, housing, health care and education, and preservation of and access to the commons.
* Economic rights include the right to practise one’s occupation, share in the economic resources of the commons, enjoy a fair share of economic growth, access all forms of income, and bargain individually and collectively.
Human rights are universal, indivisible and inalienable, meaning they cannot be taken away except in specific situations subject to due process. Thus a person convicted of a crime in a court of law may lose their right to liberty.
The term ‘claim rights’, or ‘republican rights’, is intended to mean rights that society should move towards realizing. As explained in Chapter 4, policies and institutional changes should be judged by whether they move towards realizing rights for the most vulnerable and disadvantaged in society.
Rights constantly evolve, at national and international levels. For example, a Charter of Emerging Human Rights, which highlighted distributional and ecological claims, was formulated as part of the Universal Forum of Cultures (Barcelona Social Forum 2004). It made little impact, but should be revisited.
Denizens and restricted rights
In the Middle Ages in England, a denizen was an outsider – an ‘alien’ – who was granted by the king, or an authority operating on his behalf, the right to settle and to work in a town in his proven occupation. He gained some of the rights of a citizen of the town, but rarely all of them and not necessarily forever.
As the idea of citizenship evolved, the notion of denizenship moved to national level. Writing his Law Dictionary in the early nineteenth century, Sir Thomas Edylyne described a denizen in these terms:
an alien born, but who so obtained, ex-donatione regis, letters patent to make him an English subject; a high and incommunicable branch of the royal prerogative. A denizen is in a kind of middle state between an alien and natural-born subject… He may take lands by purchase or devise, which an alien may not… no denizen can be of the privy council, or either house of parliament, or have any office of trust, civil or military, or be capable of any grant of lands, etc. from the crown.
Thus a denizen was usually denied political rights, but was granted designated economic rights as well as the citizen’s normal civil rights.
In British colonies, the governor was empowered to grant letters of denization to foreigners if they arrived with letters of recommendation from the relevant British secretary of state. Or they could petition the governor, who could submit their names to the secretary of state for approval. Denizens had to swear the oaths of Allegiance and Supremacy, disavowing the Pope’s temporal authority, abjuring the claims to the English throne of descendants of the Pretender, and affirming the Declaration against Transubstantiation. While Catholics were exempted from the last of these, they were restrictions on ‘cultural deviance’.
Thomas Hammar (1994) is credited with the modern reintroduction of the term denizen, to refer to migrant workers who came to Western and Northern Europe from the 1960s onwards and became long-term residents. They were granted negative freedoms, including access to the labour market, and gained some positive social security rights. But denizenship remained an ‘in-between’ concept (Oger 2003; Walker 2008).
This idea of denizenship as an ‘in-between’ status has historically been one of progress for the person involved. A denizen was someone who moved from being an outsider to a partial insider, with some rights. But denizenship should be seen as regress as well. In the globalization era, while the rhetoric of rights gained force and popularity, the reality has been the conversion of more people into denizens, denied certain rights or prevented from obtaining or retaining them. This does not affect only migrants. If Hannah Arendt’s idea of citizenship is ‘the right to have rights’ (Arendt  1986), today it would be better to think of citizenship as a continuum, with many people having a more limited range of rights than others, without any simple dichotomy of citizen and non-citizen.
Until the 1980s, the conventional view was that over the long run, in a democratic society, residence and citizenship should coincide (Brubaker 1989). This would not be true today. Many residing in a country never obtain citizenship or the rights attached to it; others who have resided since birth lose rights that supposedly go with citizenship.
Many denizens not only have limited rights but also lack ‘the right to have rights’. Asylum seekers denied refugee status are an example; migrants who cannot practise the occupation for which they are qualified are another. Often, they do not have the means or the procedural avenues to contest their marginal status. Many lack the capacity to claim or enforce rights, or fear that the act of asserting a claim right would have a high probability of retributive consequences or disastrous costs. Others have no avenues at all for pursuing nominal rights.
Historically, a denizen was granted citizenship rights on sufferance, on demonstration of worthiness, which was a matter of discretion by or on behalf of the ruler. Modern denizens are in a similar position. A denizen can also be seen as someone subject to ‘unaccountable domination’, that is, domination by others whose conduct cannot be held to account. This is contrary to the republican ideal of non-domination, meaning subject only to accountable legitimized power.
There are six ways by which people can become denizens. They can be blocked from attaining rights, by laws, regulations or non-accountable actions of state bureaucracies. The costs of maintaining rights can be raised. They can lose rights due to a change in status, as employee, resident or whatever. They can be deprived of rights by proper legal process. They can lose rights de facto, without due process, even though they may not lose them in a de jure (legal) sense. And they can lose them by not conforming to moralistic norms, by having a lifestyle or set of values that puts them outside the range of protection.
One egregious path to denizenship is the loss of rights due to growing criminalization. This is partly because governments have made more activities into crimes. The UK’s New Labour government passed 28 criminal justice bills in its 13 years in office, adding the equivalent of one new offence a day to the statute book, many of them trivial (Birrell 2012). The prison population nearly doubled. And digital technologies have also increased the long-term costs of being criminalized, making it harder to wipe the record and exposing people to discrimination long after what may have been a minor misdemeanour.
In sum, denizenship can arise not just from migration but also from an unbundling of rights that removes some or all of the rights nominally attached to formal citizenship. The neo-liberalism that crystallized in the globalization era has generated a ‘tiered membership’ model of society. Worst of all, the unbundling of rights has gone with a class-based restructuring of rights. This is the ground on which the precariat must make demands.
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