An Electronic Journal Published by The Law and Courts Section,
The American Political Science Association
Vol. 6, No. 5 (May, 1996) pp. 88-89
Herbert Jacob, Editor, Department of Political Science
Northwestern University, Evanston, Il. 60208 E-mail:
mzltov@nwu.edu
RIGHTS ACROSS BORDERS: IMMIGRATION AND THE DECLINE OF CITIZENSHIP
by David Jacobson. Baltimore: The Johns Hopkins Press, 1996. 181
pp. $33.50.
Reviewed by Lawrence M. Friedman, Stanford University School of
Law
The main argument of this book is that citizenship, once a
cornerstone concept of the nation-state, is in decline. Its
rival is the notion of universal, fundamental human rights --
rights which, presumably, do not depend on borders and
citizenship. These notions are "transforming the nation-state
system." All residents of a state, "noncitizens as well as
citizens," can claim these rights; therefore, the state "is
becoming less a sovereign agent and more an institutional forum
of a larger international and constitutional order based on human
rights" (pp. 2-3).
Of course, universal human rights have been around for a long
time, and the concept helped in fact to legitimate the
nation-state; but the rights were always "construed nationally"--
there had to be a country, with boundaries, and with a "people"
or "nation" inside those boundaries (pp. 14-15). Foreigners were
simply outside the circle of those who were protected, or who
could try to force a sovereign nation to respect those rights.
Now all of this has changed, according to Jacobson -- swept away
by a tide of immigration. A flock of new institutions has grown
up to support and enforce these universal rights. The
distinction between citizen and non-citizen has gotten
exceedingly blurry. Anybody who is actually IN a country is
entitled to the full protection of the law, can exercise almost
all of the rights of citizens (except, usually, voting or holding
office), and gets to feed at the same trough of the welfare state
as the actual citizens.
All this seems reasonably clear as far as the status of resident
aliens goes. But even for actual citizens, the state' s duties
are "increasingly" determined by "international human rights
codes" (p. 120). At least this is true for the European
countries who have cast their lot with the European Union, or the
Organization for Security and Cooperation in Europe, or who
signed the European Convention on Human Rights. Hence, the state
is tending to become, in a way, nothing more than an agent of
outside organizations, for enforcing rights and guaranteeing
rights -- the rights get articulated elsewhere; and if the state
does a bad job, it is accountable to its citizens before these
international bodies.
In the United States, too, citizenship as such is less and less
the precious jewel it presumably was in the past. American law,
like European law, now gives aliens a whole basket of rights and
entitlements. (Arguably, then, what is really vital is the green
card; formal citizenship is a frill). The rights of resident
aliens are, to be sure, hotly contested in the political sphere;
but so far to little avail. The state is no longer the same
thing as the "nation," insofar as the concept of a "nation"
implies a population bound together by ethnic kinship or whatever
-- in any event, something more and deeper than just BEING
someplace inside the territory (p. 72). In fact, according to
Jacobson, the development of "rights across borders" (or, more
accurately, independent of borders) puts in doubt the very
"legitimacy of the state, in its classic nation-state form" (p.
71).
What can we conclude from all this? The author thinks that
identity is becoming "deterritorialized." Communities can "live
in the same locations in a patchwork fashion;" their "center"
need not be located in the same place as their actual residence
(p. 134). What
Page 89 follows:
he means by this is that (say) the Turkish community in Germany
can have its "center" in Turkey; African-Americans can treat
Africa as "home," and so on. The state no longer commands the
total loyalty of its citizens (did it ever?); and one result is
the kind of cultural pluralism which is so prominent a feature of
modern America.
I think there are a number of important ideas expressed here,
but two things about the general thesis make me a little uneasy.
In the first place, the human rights aspects of the thesis seem
to be mainly relevant to Europe, despite the material about the
United States. The countries in Europe are struggling to define
some sort of union; the process is painful, and it is taking a
long time, but so far at least there has been considerable
movement along the road toward what looks like a dim and emerging
mutant of federalism. If we are talking about rights across
borders, we have to ask, what is a border? It may be that all of
Europe for some purposes constitutes a kind of super-country; and
for other purposes, the supercountry is the European Union, and
the "borders" in question are not the borders of Belgium or
Austria, but the borders of the Union. After all, the rights
that are enforced apply only to people who are physically inside
"Europe." Sri Lankans cannot run to European judicial organs to
complain about oppression in their country; they have no
standing.
The second problem is the fact that human rights may be
universal in theory; but what is the practice? Outside of the
small group of fancy and wealthy democracies, they are violated
brutally every day by a whole coterie of military dictators and
local satraps. They are denounced as bourgeois and hegemonic by
the totalitarian left, sneered at as unsuitable for countries
with a "Confucian" tradition, and, in short, contested in all
sorts of ways. Mass migration and guest workers, to be sure,
create pluralism where it was not to be found before; but
political backlash is also on the rise -- not to mention "ethnic
cleansing." I think it is undoubtedly true that the message of
universal human rights is spreading, through the media and
otherwise, and that it has penetrated into consciousnesses far
from the centers of enlightenment. But governments at least have
a long way to go in many parts of this unhappy world.
At the very end of the book, Jacobson challenges scholars to
rethink their views of the state. Current theories of political
sociology and international relations are rooted in conceptions
that, he feels, are losing their relevance and bite. His case
may be slightly exaggerated, it may be mainly relevant to the
club of Western democracies; but the challenge is real enough.
This is a thought-provoking book.
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Copyright 1996 by the author. Readers may redistribute this
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(mzltov@nwu.edu), Department of Political Science, Northwestern
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Previously published reviews may be obtained at the Law &
Politics Book Review web site: http://www.polisci.nwu.edu:8001.