¹ Zolberg, Aristide R. and Benda, Peter M., Global Migrants, Global Refugees. Problems and Solutions, New York and Oxford, Berghahn Books, 2001 Google Scholar; Bauboeck, Rainer, ‘The Crossing and Blurring of Boundaries in International Migration’, in Bauboeck, Rainer and Randall, John (eds), Blurred Boundaries: Migration, Ethnicity, and Citizenship, Vienna, Ashgate Publications, 1998.Google Scholar

² Rosenau, James, Along the Domestic–Foreign Frontier. Exploring Governance in a Turbulent World, Cambridge, Cambridge University Press, 1997, p. 4.CrossRefGoogle Scholar

³ Held, David, with McGrew, Anthony, Goldblatt, David and Perraton, Jonathan, Global Transformations. Politics, Economics, and Culture, Stanford, Stanford University Press, 1999, p. 32.Google Scholar

⁴ Jacobson, David, Rights Across Borders. Immigration and the Decline of Citizenship, Baltimore and London, The Johns Hopkins University Press, 1997, p. 5.Google Scholar

⁵ See Loesher, Gill, ‘Protection and Humanitarian Action in the Post-Cold War Era’, in Zollberg, A. and Benda, Peter M. (eds), Global Migrants, pp. 173–205.Google Scholar

⁶ Kant, Immanuel, [1795] ‘Zum Ewigen Frieden. Ein philosophischer Entwurf’, in Buchenau, A., Cassirer, E., and Kellermanm, B. (eds), Immanuel Kants Werke, Berlin, Verlag Bruno Cassirer, 1914;Google Scholar ‘Perpetual Peace’, trans. Beck, Lewis White, in Beck, L. W. (ed.), On History, Indianapolis and New York, The Library of Liberal Arts, 1957.Google ScholarPubMed

⁷ Sidgwick, Cf. Henry: ‘. . . but those who are in distress or urgent need have a claim on us for special kindness. These are generally recognised claims: but we find considerable difficulty and divergence, when we attempt to determine more precisely their extent and relative obligation: and the divergence becomes infinitely greater when we compare the customs and common opinions now existing among ourselves in respect of such claims, with those of other ages and countries’. In The Methods of Ethics, Chicago and Toronto, The University of Chicago Press, [1874], 1962 edn, p. 246 Google Scholar. For some recent treatments, see O’Neill, Onora, Towards Justice and Virtue. A Constructive Account of Practical Reasoning, Cambridge, Cambridge University Press, 1996;CrossRefGoogle Scholar Sheffler, Samuel, Boundaries and Allegiances. Problems of Justice and Responsibility in Liberal Thought, Oxford, Oxford Unviersity Press, 2001.Google Scholar

⁸ I have examined these issues at greater length with reference to the philosophies of Kant and Hannah Arendt in Benhabib, S., Transformations of Citizenship. Dilemmas of the Nation-State in the Era of Globalization. The Spinoza Lectures, Amsterdam, Van Gorcum, 2001.Google Scholar

⁹ Walzer, Michael, Spheres of Justice. A Defense of Pluralism and Equality, New York, Basic Books, 1983, pp. 50 ff.Google Scholar

¹⁰ Rawls, John, Political Liberalism, New York, Columbia University Press, 1993, p. 41 (emphasis added).Google Scholar

¹¹ Rawls, John, The Law of Peoples, Cambridge, Mass., Harvard University Press, 1999, pp. 38–9.Google Scholar

¹² Ibid., p. 39.

¹³ Rawls, J., The Law of Peoples, op. cit., pp. 117–19.Google Scholar

¹⁴ Rawls, J., Political Liberalism, op. cit., p. 39.Google Scholar

¹⁵ Carens, Joseph, ‘Aliens and Citizens: The Case for Open Borders’, in Beiner, Ronald (ed.), Theorizing Citizenship, Albany, State University of New York Press, 1995, pp. 229–55Google Scholar. For some modifications to these early arguments which retreat from the open borders position, see later, Carens’s Culture, Citizenship, and Community. A Conceptual Exploration of Justice as Evenhandedness, Oxford, Oxford University Press, 2000.Google Scholar

¹⁶ Nussbaum, Martha, ‘Patriotism and Cosmopolitanism’, in Cohen, Joshua (ed.), For Love of Country. Debating the Limits of Patriotism, Boston, Beacon Press, 1996;Google Scholar Nussbaum, Martha, ‘Kant and Cosmopolitanism’, in Bohmann, James and Lutz-Bachmann, M. (eds), Perpetual Peace. Essays on Kant’s Cosmopolitan Ideal, Cambridge, Mass., MIT Press, 1997, pp. 25–59.Google Scholar

¹⁷ Nussbaum, M., ‘Patriotism and Cosmopolitanism’, op. cit., 1996, pp. 12–17.Google Scholar

¹⁸ I have presented my own version of a dialogic universalist ethics, which builds upon Habermas, Juergen’s theory of discourse ethics, in Situating the Self. Gender, Community, and Postmodernism in Contemporary Ethics, New York and London, Routledge and Polity Presses, 1992.Google Scholar In this work I have named the problem of mediating the universal and in particular that of reconciling ‘the generalized’ with the ‘concrete other’, pp. 148–78.

¹⁹ See Benhabib, S., ‘Of Guests, Aliens, and Citizens: Rereading Kant’s Cosmopolitan Right’, in Pluralism and the Pragmatic Turn. The Transformation of Critical Theory. Essays in Honor of Thomas McCarthy, Cambridge, Mass., MIT Press, 2001, pp. 361–87Google Scholar.

²⁰ J. Rosenau, Along the Domestic–Foreign Frontier, op. cit.

²¹ Soysal, Yasemin, Limits of Citizenship. Migrants and Postnational Membership in Europe, Chicago, University of Chicago Press, 1994.Google Scholar

²² Sandel, Michael, Democracy’s Discontent: America in Search of a Public Philosophy, Cambridge, Mass., Harvard University Press, 1996;Google Scholar Jacobson, David, Rights Across Borders. Immigration and the Decline of Citizenship, op. cit.; Walzer, Michael, Spheres of Justice, op. cit., ch. 2 and ‘ In Response: Support for Modesty and the Nation-State’, The Responsive Community, 11:2 (2001), pp. 27–31.Google Scholar This is a response to my article, ‘Dismantling the Leviathan: Citizen and State in a Global World’, in ibid., pp. 14– 27. I should point out that these writers would not consider themselves a ‘school’ of thought. I am using the term in its broadest sense to refer to certain affinities in argumentation and reasoning.

²³ See Honig, Bonnie, ‘Immigrant America? How “Foreignness” Solves Democracy’s Problems?’, Social Text, 3 (Fall 1998), pp. 1–27.CrossRefGoogle Scholar

²⁴ For a forceful restatement of these principles in discourse theoretic terms, see Habermas, Juergen, Between Facts and Norms. Contributions to a Discourse Theory of Law and Politics, trans. Regh, William, Cambridge, Mass., MIT Press, 1996.Google Scholar

²⁵ Two separate claims need to be distinguished: i) In the tradition of natural rights-based social contract theories, such as those of Hobbes, Locke, and even Rousseau, rights claims were often conceptualized along the lines of naive moral realism. They were often considered psychological or anthropological attributes of human beings, such as the rights to self-preservation, to life, limb and property. This equivocation between facts and norms, description and justification, was aided by the language of ‘natural law’ and ‘natural rights’. Kant was the first to clarify the status of rights claims within a discourse of justification and a teaching of the state based upon the rule of law. See, Kant, I., [1797] The Metaphysical Elements of Justice, trans. and with an Introduction by Ladd, John, New York, The Bobbs-Merrill Company Inc., 1965, pp. 48–75.Google Scholar ii) Unlike previous social contract theorists, and even unlike Kant, I do not presuppose that rights have a specific material content which ‘antedates’ the will of the democratic sovereign. I am assuming that democracy is based upon the rule of law and that the rule of law entails that we treat each other as ‘consociates’ of a common normative order but that furthermore, the laws which we obey must also be underwritten by our collective will. ‘We’, as the sovereign people, are the subject as well as the author of the laws and precisely because in a democracy the people is the author of the law as well as its subject, there need to be boundaries circumscribing those in the name of whom norms are issued. Democratic norms, unlike imperial, theocratic and authoritarian ones, evolve through a transparent chain of representation and authorization, and bind the will of those whose representatives legislate in their name.

²⁶ Habermas, J., ‘The European Nation-State: On the Past and Future of Sovereignty and Citizenship’, in The Inclusion of the Other, trans. by Cronin, Ciaran and Greiff, Pablo de, Cambridge, Mass., MIT Press, 1998, p. 115.Google Scholar

²⁷ See Ackerman, Bruce, We, The People, Cambridge, Mass., Harvard University Press, 1991.Google Scholar

²⁸ Kant, Immanuel, [1797] The Metaphysics of Morals, trans. by Gregor, Mary, Cambridge, Cambridge University Press, 1996, p. 92.Google Scholar

²⁹ Jews in pre-modern and pre-revolutionary Europe, before so-called ‘emancipation’ and being granted citizenship rights, were considered foreigners who were dependent upon the good will and beneficence of various sovereigns who had granted them immunities and privileges of settlement, freedom of commerce and the exercise of their religion and culture. For a masterful analysis, see Katz, Jacob, Exclusiveness and Tolerance. Jewish–Gentile Relations in Medieval and Modern Times, New York, Schocken Books, 1973,Google Scholar 3rd printing.

³⁰ Weber, Max, [1922], Economy and Society. An Outline of Interpretive Sociology, ed. and trans. by Roth, Guenther and Wittich, Claus, Wirtschaft und Gesellschaft. Grundriss der verstehenden Soziologie, Berkeley, University of California Press, 1978 edn, pp. 901– 26.Google Scholar

³¹ Marshall, T. H., ‘Citizenship and Social Class’, Citizenship and Social Class and Other Essays, London, Cambridge University Press, 1950.Google Scholar

³² Soysal, Y., The Limits of Citizenship, op. cit.; Kastoryano, Riva, Negotiating Identities, trans. by Harshav, Barbara, Princeton, NJ, Princeton University Press, 2001;Google Scholar Benhabib, Seyla, ‘Citizens, Residents, and Aliens in a Changing World: Political Membership in the Global Era’, Social Research, 2:3 (1999), pp. 709– 44.Google Scholar

³³ See Article 8 of Part Two, C.. ‘1. Citizenship of the Union is hereby established. Every Person holding the Nationality of a Member State shall be a citizen of the Union.’ Facsimile reproduction on file with the author. A more extensive discussion of these issues appears in my book, The Claims of Culture. Equality and Diversity in the Global Era, Princeton, NJ, Princeton University Press, 2002 Google Scholar, ch. 6.

³⁴ The institution of citizenship among individuals who do not share a common language, a common public sphere and effective channels of participation has given rise to a number of debates in political theory and jurisprudence. Some see European citizenship as a fig-leaf intended to cover the considerable divestment of the democratic powers of sovereign peoples to an anonymous ‘Eurocracy’ sitting in Brussels, and still more others warn of the growing ‘democracy deficit’ in the Union. Citizenship without participation looms on the horizon, they argue. See Preuss, Ulrich, ‘Problems of a Concept of European Citizenship’, European Law Journal, 1:3 (11 1995), pp. 267–81;CrossRefGoogle Scholar Balibar, Etienne, ‘Is European Citizenship Possible?’, Public Culture, 8 (1996), pp. 355–76;CrossRefGoogle Scholar Percy, B. Lehning and Weale, Albert (eds), Citizenship, Democracy and Justice in the New Europe, London and New York, Routledge, 1997.Google Scholar This case has been made most recently and forcefully by Weiler, Joseph, The Constitution of Europe. Do the New Clothes Have an Emperor? and Other Essays on European Integration, Cambridge, Cambridge University Press, 1999.Google Scholar

³⁵ See Neuman, Gerald L., ‘Buffer Zones Against Refugees: Dublin, Schengen, and the Germany Asylum Amendment’, Virginia Journal of International Law, 33:5 (1993), pp. 503–26.Google Scholar The Dublin Convention and the Second Schengen agreement were signed in June 1990. Both agreements contain rules for determining a ‘responsible state’ which agrees to process an applicant for asylum from a non-EU country.

³⁶ Krieken, Peter van (ed.), The Asylum Acquis Handbook. The Foundations for a Common European Asylum Policy, The Hague, Asser Press, 2000, p. 25.CrossRefGoogle Scholar

³⁷ Ibid., p. 305.

³⁸ http://europa.eu.int/scadplus/citizens/fr/d7.htm

³⁹ Turks and ethnic Kurds, in most cases who are themselves Turkish citizens, are the largest group of foreigners, not only in Germany, but in Western Europe in general. In 1993, they numbered 2.7 million. Of that number, 2.1 million live in Germany and as of 1999 make up 2.86% of the population. The second largest group of foreigners consists of members of former Yugoslav states, many of whom enjoy either full or temporary refugees status: 1.8 million Croats, Serbians, Bosnian Muslims and Albanians.

This picture is complicated by the presence in countries like France of former colonials, such as the Algerians. As of the 1990 census, France counted 614,200 Algerian-born individuals among its population, and 572,200 Moroccans. In 1996 third-country national foreigners made up 6.3% of the population in France; in 1999 this number declined to 5.6%, and according to the 2002 figures, it hovers around 6.1%. These figures are based on SOPEMI Publications (the OECD Continuous Reporting System for Migration), Paris, 1998.

⁴⁰ With the exception of Austria, Luxembourg and Greece, most EU countries permit citizenship by naturalization. After the reform of Germany’s jus sanguinis citizenship law as of January 2000, most EU countries practise a form of more or less liberalized jus soli. The one exception to ‘political participation through naturalization’ is the policy of the city of Amsterdam. The Dutch model is quite unique in that foreign residents of Amsterdam are granted city-citizenship and voting rights after 5 years of legal residence, and are then permitted to take part in municipal elections as well as form political parties. The granting of political rights to residents of Amsterdam does not alter their status within the EU; nevertheless, this is a model which may become popular throughout large European cities with foreign populations.

⁴¹ See Thaa, Winfried, ‘ “Lean Citizenship”. The Fading Away of the Political in Transnational Democracy,’ European Journal of International Relations, 7:4 (2001), pp. 503–25.CrossRefGoogle Scholar

⁴² For a compelling analysis of similar tendencies within a non-European context see Ong, Aihwa, Flexible Citizenship. The Cultural Logic of Transnationality, Durham, NC, Duke University Press, 1999.Google Scholar

⁴³ Max Pensky, ‘Constitutional Exclusion? EU Constitution, Human Rights, and the Problem of Scope’. Paper delivered at the European Constitutionalism Conference, Johann-Wolfgang Goethe University, Frankfurt, 11–13 June, 2002. On file with the author (emphasis in the text).

⁴⁴ I. Kant, ‘Perpetual Peace’, op. cit.