Asylum, Welfare and the Cosmopolitan Ideal

A Sociology of Rights

Lydia Morris

• Publisher: Routledge-Cavendish
• Year: 2010
• ISBN:
  9781136996481
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Asylum, Welfare and the Cosmopolitan Ideal: A Sociology of Rights puts forward the argument that rights must be understood as part of a social process: a terrain for strategies of inclusion and exclusion but also of contestation and negotiation. Engaging debate about how 'cosmopolitan' principles and practices may be transforming national sovereignty, Lydia Morris explores this premise through a case study of legal activism, civil society mobilisation, and judicial decision-making. The book documents government attempts to use destitution as a deterrent to control asylum numbers, and examines a series of legal challenges to this policy, spanning a period both before and after the Human Rights Act. Lydia Morris shows how human rights can be used as a tool for radical change, and in so doing proposes a multi-layered 'model' for understanding rights. This incorporates political strategy, public policy, civil society mobilisation, judicial decision-making, and their public impact, and advances a dynamic understanding of rights as part of the recurrent encounter between principles and politics. Rights are therefore seen as both a social product and a social force.

Chapter 1
The right to have rights

Fond illusion or credo for our times?

We became aware of the existence of a right to have rights and a right to belong to some kind of organised community only when millions of people had emerged who had lost and could not regain those rights.

(Arendt, 1979:297)

Hannah Arendt was writing of the stateless persons generated by the breakup of four¹ multinational empires in the aftermath of the First World War. However, her comments were prompted by a dilemma which is still apparent in contemporary society and which stems from the problematic relationship between citizenship and human rights, as illuminated by the position of cross-border migrants and more especially asylum seekers. This book examines the extent to which human rights can be evoked to support the rights of asylum seekers denied access to the necessities of life while their claim is being assessed. In so doing, it also considers a much broader question; the role of rights in drawing the moral boundaries of the community we live in, and in securing dignity and respect for the vulnerable. This first chapter therefore begins by considering the problem of rights in the light of the historical relationship between citizenship and human rights: Arendt’s paradox. It then goes on to examine a variety of sociological approaches to the practice of rights as a contested terrain in which the role of judgement is increasingly significant. When large numbers of people live outside of their national country of origin, determining decisions on the contours and content of rights provides a barometer by which we can measure practical commitment to the notion of a shared humanity and the cosmopolitan ideal.

Arendt’s paradox

The idea of universal rights, possessed by people as a direct result of their humanity, grew out of a tradition of natural law which was given expression at the end of the eighteenth century in the Declaration of the Rights of Man and Citizen. This declaration acted in large part as a guarantee of protection for the individual against the sovereign actions of the state (Arendt, 1979:291). However, the pairing of man and citizen is curious and as Agamben (1998:126) has noted, begs questions about the nature and purpose of the distinction, which appears to subsume ‘citizen’ under the broader category of ‘man’. For Arendt, writing in 1948, the distinction acquired a different meaning when the appearance of stateless persons on a large scale demonstrated that people without full membership of a national polity via citizenship had no institutionalised means of claiming their ‘inalienable’ human rights. This is what I here term ‘Arendt’s paradox’.

The rights associated with the Rights of Man and Citizen were addressed to claims arising in the context of a given political community, rather than to trans-national movements emerging from the breakup of empires. Hence, within the nation-states of inter-war Europe it seemed that only people of the appropriate national origin could enjoy access to those rights, to the extent that even naturalised citizens were commonly assimilated into the status of alien (Arendt, 1979:285). Although Arendt herself embraced the idea of rights to be guaranteed by virtue of humanity alone, a lingering concern was captured in her fear that: ‘It is by no means certain whether this is possible’ (p. 298). Her writing on this matter, in the context of her work on the origins of totalitarianism, is particularly striking when read against one of the foundational documents of modern cosmopolitan thought, Kant’s ‘To Perpetual Peace’ (1994). In this philosophical sketch the sole cosmopolitan right identified is a right to hospitality:

the right of an alien not to be treated as an enemy upon his arrival in another’s country. If it can be done without destroying him, he can be turned away; but as long as he behaves peaceably he cannot be treated as an enemy.

(Kant, 1994: para 358)

This is, in effect, a right to refuge.

Arendt’s reflections coincided with the formulation of the Universal Declaration of Human Rights (UDHR) in 1948, which was followed by a variety of more specialised instruments made available for ratification. These included the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), in force since 1953, and the Convention on the Status of Refugees (CSR), in force since 1954. The non-binding UDHR includes the right to seek and enjoy asylum but places no obligation on countries to offer asylum, and while the CSR requires of signatory countries a commitment to non-refoulement,² this first assumes access to a national territory. The ECHR provides a raft of basic rights, and though some may be subject to qualification there are a small number which are absolute in nature, and thus aspire to be truly universal. Such instruments do not necessarily challenge the nation-state framework that Arendt remarks upon, insofar as they require voluntary adherence or ratification by individual nations. However, they have gone some considerable way towards institutionalising human rights within an enforceable legal framework. Nevertheless, Arendt’s comments have a haunting quality and retain some salience in contemporary society, where the refugee still stands as the principal subject and true test of cosmopolitan right.

Benhabib (2004) links Arendt’s paradox to a dilemma at the heart of liberal democracy; the tension between sovereign self-determination and adherence to universal human rights. In Benhabib’s account, the rights of the citizen rest upon the rights of man, such that the two are co-implicated (p. 43); modern democracies embrace universal principles, but apply them within the context of a bounded civil and political community. Accordingly, her analysis of ‘a right to have rights’ illuminates a problem. The first instance of the word ‘right’ in this phrase implies membership in a community of consociates to whom the right is addressed, while the second instance of the term refers to the rights that follow from this membership. Thus the right to have rights rests upon a status of belonging within some form of rights-granting community which then has a duty to honour the claim to a variety of contingent rights. Without such membership the right to have rights had no force and this led Arendt to conclude that, in the absence of any juridico-political community to adjudicate universal claims, the loss of citizenship was tantamount to a loss of human rights altogether. As Michelman (1996:203) puts it:

As matters have developed … the having of rights depends on receipt of a special sort of social recognition and acceptance – that is, of one’s juridical status within some particular concrete community.

In Agamben’s (1998) nihilistic account, which draws heavily on Arendt’s analysis, a category of ‘bare life’ excluded from the polis will always exist, for however the lines are drawn, the rights of the insider are defined against a category of outsider, such that the two are co-dependent.

Arendt was by no means so fatalistic, but clearly saw that identification of the Rights of Man with nationally sovereign states contained problems which only came to light when significant numbers of people lacked their own political community and therefore the status of membership. She fully appreciated the irony of a situation in which human rights acquired a new connotation as little more than a right of exception (p. 293); a protection for the underprivileged and for those with nothing else to fall back on. Any attempt to claim these rights broke down when states were confronted with ‘the abstract nakedness of being human’ (p. 299). Hence:

The paradox involved in the loss of human rights is that such loss coincides with the instant when a person becomes a human being in general … and different in general, representing nothing but his own absolutely unique individuality …

(p. 302)

Arendt saw that then, as now, the sphere of international law operated in terms of reciprocal agreements and treaties between sovereign states, that a sphere above nations did not exist, and that every new republic necessarily drew lines of inclusion and exclusion. Yet while she was conscious of the tensions inherent in the nation-state system, she was also deeply suspicious of the idea of a world government, especially given the crimes against humanity which had emerged as ‘a speciality of totalitarian regimes’ (p. 298). Thus, in her view, a benign universalism would by no means be the guaranteed outcome of any system of global governance.

The situation today is somewhat changed, in that a plethora of treaties and conventions now exists and can be called into play to assert the rights of non-citizens, and in some cases be tested in international and/or national courts. However, access to these rights is commonly administered by the nation-state, which remains the principal unit of membership.³ Although the treatment of those on national territory is by no means unchecked, and the nation-states of Europe are legally bound by a variety of trans-national instruments, the right of control over entry and stay is still a fiercely protected sovereign privilege. While ‘free movement’ within the European Union (EU) stands as an exception to this rule, it is hedged with caution; the external borders of the EU are ever more tightly policed, and there has been a simultaneous increase in internal controls (see Morris, 2002). For those seeking to claim asylum, Kant’s original cosmopolitan right, an application will normally first require presence within the territory of the receiving country, and a variety of devices are in play which make arrival prohibitively difficult (Cruz, 1995; Morris, 2002). This aptly captures Benhabib’s liberal democratic dilemma, described by Habermas as the Janus-faced nature of the nation-state. Thus:

The tension between the universalism of an egalitarian legal community and the particularism of a community united by historical destiny is built into the very concept of the national state.

(Habermas, 1998:115)

Cosmopolitanism and communitarianism are therefore locked in a struggle which has yet to be resolved.

In an era of high levels of immigration and asylum seeking, a tension exists between the demand for universal rights and protections, and the practices of nation-states operating on the basis of exclusive rights of membership. Yet while membership of the nation-state is determined by citizenship status, presence on the national territory is not. Indeed:

There has never been perfect overlap between the circle of those who stand under the law’s authority and the full members of the demos.

(Benhabib, 2004:20)

The issue of who has what claim to which rights is not, therefore, determined once and for all by the question of membership, but is revisited in the context of a global competition for skilled labour, of family members wishing to rejoin their migrant kin, and of civil wars and oppressive regimes generating large numbers of asylum seekers. While modern democracies in contemporary society have undertaken commitments which govern these and other situations, through the ratification and implementation of a wide variety of transnational instruments, the actual content and delivery of many of the rights at issue remain subject to qualification, limitation and interpretation. Rights may be reciprocal and therefore limited to citizens of co-signatory states, they may apply only to those legally present on the territory, or they may have a variety of other conditions attached. Some of the so-called universal human rights can be qualified, with reference to national security, public safety or the economic well-being of the country, while even those rights which are absolute raise difficult questions of interpretation and application. The practice and language of human rights therefore opens up an uncertain terrain of claims making, deliberation and negotiation, and one specific example is detailed in the chapters to follow. The present introduction, however, is cast more broadly and will examine sociological approaches to the understanding and analysis of rights in practice, with a view to elaborating the contemporary resonance of a ‘right to have rights’.

Membership and equal status

Marshall’s (1950) famous essay ‘Citizenship and Social Class’ is in fact an essay about rights; their historical development, their mutual interdependence, and their importance in confirming equal social standing or status. As such, it is an interesting precursor of more recent work linking rights to recognition (Taylor, 1994; Honneth, 1995), an important theme of the present study. In viewing citizenship as a status of inclusion, Marshall explicitly addresses only one aspect of Arendt’s paradox, but his work offers a number of insights of more general significance which have direct relevance for an understanding of the practice of rights. The essay is well known as an account of the gradual development of civil, political and social rights in Britain, each right being associated with a different century, and each underpinned by different institutional supports. Marshall’s argument is that the rights associated with the equal status of citizenship were extracted from the status dimension of social class, robbing class inequality of much of its force and acting as a source of social stability. Hence:

There is a basic human equality associated with the concept of full membership of a community … [such that] the inequality of the social class system may be acceptable provided equality of citizenship is recognised.

(Marshall, 1950:6)

His focus on stability should not blind us to the recognition in his work of a series of status struggles – against serfdom in the case of civil rights; against economic privilege in the case of political rights; and against social ostracism in the case of social rights. In this connection, Marshall also recognised the indivisibility of rights, seeing the significance of civil rights in the fight for political and social rights, and the importance of social rights for the full enjoyment of all other rights. With respect to the latter, he provides what might be construed as a definition of social inclusion, which encompasses a range of factors:

from the right to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilised being according to the standards prevailing in society.

(Marshall, 1950:8)

Conversely, he was aware of the force of class prejudice and economic inequality as a bar to the full realisation of rights which were formally held, hence invoking two contrasting dimensions of status – formal status determining legal entitlement, and informal status attaching to wealth and power.

While Marshall’s interest in these issues was in relation to the development and functioning of a system of full social inclusion through citizenship, we can derive from his work an analytical framework which associates rights with status and recognition, and sees in rights a foundation on which social relations are built. In this respect, one of the idealised functions of an inclusive model of citizenship lies in breaking down status distinctions within society, leading to Marshall’s conclusion that the basic human equality associated with full membership compensates for other forms of inequality. In his view:

Inequalities can be tolerated within a fundamentally egalitarian society provided they are not dynamic, that is to say that they do not create incentives which spring from dissatisfaction …

(Marshall, 1950:44)

However, ‘dissatisfaction’ in relation to entitlements has driven a variety of civil society movements in the quest for a fuller realisation of rights and the recognition which accompanies them.

As noted, Marshall’s work addresses only one side of Arendt’s paradox, the guaranteed inclusion associated with citizenship, and seems blinkered against the associated exclusion which denies rights to those who do not possess full membership. This has, of course, been one common criticism. However, if we read the essay less as a treatise on citizenship and more as a sociological treatment of rights, then we find some insights which may help to address the other side of the...