Kicked off by Rainer Bauböck’s essay, the general pros and cons of urban citizenship – or city-zenship as Avner de Shalit and Nir Barak have termed it in their responses – have been weighed. The question of who might lose out has been put on the table, notably by Patti Tamara Lenard. Other contributions have touched upon the question of the role of the law . Historian Maarten Prak has wondered, for instance, whether the turn to the language of “rights” is helpful due to its moralising undertones. Barbara Oomen has refuted this argument and has instead called for shifting the focus from citizenship more generally to human rights at the local level as a more tangible means for inclusion of those who are so far left out of the bond of citizenship. And Ran Hirschl has pointed to a more general deficit of constitutional theory that has avoided to tackle urban questions, possibly for the reason of its fixation on larger and arguably more important scales of government and governance.
In my contribution, I would like to reflect on the
role of law in this discourse. The answer one might give to the question of
decoupling citizenship from the state would arguably also depend on one’s
disciplinary perspective. It is easier to think outside of the box from the
perspective of political theory, political philosophy, and history than it is
from the perspective of the law. Even though “law” is not monolithic – neither
as an object of study nor as an academic field – lawyers have to start with the
law that exists. Law can be changed – for better or worse. But changing the law
requires following a certain process. The “rules of change” of a given legal
system are determinative for bringing about a change of the primary rules (Hart
1961). Scholarship can certainly influence these processes, point to existing
lacuna, fill them with systemic thinking or suggest novel interpretations to
courts and other decision-makers. But the starting point of a legal exercise
remains bound up with the existing legal framework.
In the context of our symposium, this raises the broader question of the value of legalising urban citizenship, a point also already flagged by Josephine van Zeben in her contribution. She rightly has concerns about turning urban citizenship into some kind of copycat of national citizenship. She wonders how this promise would be filled with life. In other words, she is asking which sovereign attributes necessarily go hand in hand with calling a status “citizenship”. To answer this question, it may be helpful to distinguish between status- and practice-based understandings of citizenship.
Urban citizenship as a status
A distinction exists between citizenship as status and citizenship as practice (Bauböck 2003). Lawyers tend to think of citizenship primarily as a status – a bundle of rights and obligations, which is defined by the common bond of belonging to a nation state. Inclusion in this circle of rights-holders (and duty bearers!) is passed on through legally defined mechanism, either at birth or through processes of naturalisation. Nation-states jealously guard the power to decide over this question, even though federal systems like the one in Germany may leave it to the component units of the federation to administer the concrete decision-making process on who obtains citizenship through naturalisation.
International law also expects states to a certain extent to keep these processes under control, at least if they wish to protect their citizens in the international arena. The Nottebohm case of the ICJ famously required a “genuine link” between a state and its naturalised citizen to make citizenship effective in the context of diplomatic protection.
From this legal perspective, citizenship fulfils a
certain world order function as the current inter-state system depends on the demarcation
of citizenship across some defined or at least identifiable lines. In the words
of Rogers W. Brubaker it is an “international filing system, a mechanism for
allocating persons to states” (Brubaker 1992). One can, of course, wish for the
inter-state system to disappear and be replaced by an entirely different system
(Barber 2013), but for the time being this looks unrealistic even to the most
ardent supporter of the rise of cities as global actors. Yet, some scholars
seem to take the leap. For instance, Alexander Aleinikoff argues that “urban citizenship is a useful concept
only to the extent that urban areas possess legal authority”.
This alone is not a bold claim. Many domestic legal
systems bestow legal authority upon cities and local governments; Germany and
South Africa are two examples with strong constitutional protections for local
governments (on Germany, see Aust 2017). Yet, Aleinikoff envisages more, “some
form of sovereignty” where things arguably become difficult. What would such a
turn to urban sovereignty entail? I cannot help thinking back to the “new
tribalism” evoked by the late Thomas Franck in the context of secessionist
movements (Franck 1999). Arguing for urban sovereignty in the context of our
current heated political debates seems to add fuel to the fire. Many
contributions to current debates on urban futures share a romantic affection
for the urban, which is coupled with a similar disdain for the supposedly rural
backwaters. I am not sure whether arguing for urban sovereignty will help to
close this gap (Aust 2019). As others in this symposium have also pointed out,
which forms of urban life are shaping our thoughts when we reflect on a growing
role of cities and along with that urban citizenship? This might be an
attractive ideal for the urbanites of New York, Berlin, Melbourne and Tel Aviv
– but not necessarily for urban areas that lack the appeal that these places
Urban citizenship as a practice
If there may be good reasons not to think of urban
citizenship in terms of status, one is left with the somewhat vaguer notion of
citizenship as a practice. This mode of citizenship is not a legal notion but
rather derived from local practices, which set out to redefine a certain form
of political membership in a community to the extent that local governments and
cities have the possibility and capacities to allow for such processes. Citizenship
as practice can easily tap into direct democratic experiments like
participatory budgeting, resonate with ideas of a “right to the city”, and
generally help to stimulate a sense of community on a local level. There is
much to be said for all this, and urban citizenship can well be an attractive label
to encapsulate a variety of emancipatory practices on the local level.
Keeping this emancipatory potential alive would
require, however, not to import the characteristics of the inter-state model of
citizenship as status in a legally defined way into this realm of urban
citizenship as practice. In other words: one can’t have your cake and eat it.
It is difficult to aim for political emancipation and yet long for the
trappings of citizenship in a legal sense at the same time. Legal form can be
stifling. It provides legal security and stability. But if you aim for change,
do not look for the law first.
Importing too much of the citizenship thinking from
the inter-state context into the vibrant field of urban citizenship practices
may stifle innovation. City networks in the climate change context seem to be
faced with a similar dilemma: In order to carve out a niche in the global
climate change regime, they have argued that cities are essentially different
from nation-states and the established forms of international cooperation. As
extrapolated in the works of Benjamin Barber, these networks want to be the new
kids on the block, not held back by ancient conceptions of sovereignty and
power politics, but rather aiming towards pragmatic problem-solving, grassroots
democratic legitimacy and shaking up the international system from the bottom
up. Apart from the often-unsolved riddle how the managerial and pragmatic
problem-solving attitude relates to the democratic legitimacy argument, it is
also noteworthy how these networks – like ICLEI and C40
– simultaneously long for acceptance from more established actors like states
and IOs, and how their meetings resemble international summitry. In other
words: there is a somewhat puzzling disconnect between an attempt to be apart
and new and the wish to break into the inner circle.
I would like to end with the suggestion to realise urban citizenship as practice, but not as status. The emancipatory potential of citizenship is more likely to be fulfilled if there is no vain and potentially unrealistic urge to legalise it. If you wish to emancipate it, do not look to the law – at least not first.
- Aust, Helmut Philipp. 2017. Das Recht der globalen Stadt – Grenzüberschreitende Dimensionen kommunaler Selbstverwaltung, Tübingen: Mohr Siebeck.
- Aust, Helmut Philipp. 2019. The Shifting Role of Cities in the Global Climate Change Regime: From Paris to Pittsburgh and Back? Review of European, Comparative and International Environmental Law 28/57.
- Barber, Benjamin. 2013. If Mayors Ruled the World – Dysfunctional Nation States, Rising Cities, New Haven: Yale University Press.
- Bauböck, Rainer. 2003. Reinventing Urban Citizenship. Citizenship Studies 7/2, 137-158.
- Brubaker, Rogers W.. 1992. Citizenship and Nationhood in Germany and France, Cambridge, MA: Harvard University Press.
- Franck, Thomas M. 1999. The Empowered Self, Oxford: Oxford University Press.
- Hart, H.L.A. 1961. The Concept of Law, Oxford: Clarendon Press.