Lindah, H. (2011). in Between- Immigration, Distributive Justice, And Political Dialogue. Contemporary Political Theory 10, 140-143

7/27/2019 Lindah, H. (2011). in Between- Immigration, Distributive Justice, And Political Dialogue. Contemporary Political The

1/17Electronic copy available at: http://ssrn.com/abstract=1726285

In Between:Immigration, Distributive Justice, and Political Dialogue*

Hans Lindahl**

Abstract: How is distributive justice possible with respect to immigration if political decisions

about entry and membership cannot be grounded in the symmetry of a prior commonality, hu-

man or otherwise, that could guarantee reciprocal relations between members and nonmembers?

This paper deals with both aspects of this question. Initially, it engages critically with Seyla Ben-

habibs plea for dialogical universalism, showing why the strong discontinuity between political

and moral reciprocity precludes understanding distributive justice as the process of mediating be-

tween political particularity and moral universality. Subsequently, it suggests that a way out of

this conceptual and normative impasse can be found in the fact that boundaries create a double

asymmetry. This double asymmetry is constitutive for the dia of the political dialogue that sepa-

rates and joins members and nonmembers. This in between, which eludes control by the parties

to a dialogue, is the realm of distributive justice.

Key words: immigration; borders; distributive justice; political dialogue; cosmopolitanism

1. Introduction

Immigration confronts contemporary theories of distributive justice with an intractable di-

lemma. On the one hand, there is a fundamental asymmetry between the positions inside and

outside a polity: those within establish among themselves which aliens may enter the polityor must abandon it. This asymmetry is not only constitutive for politics and political commu-

nity but also for distributive justice: there can be no authoritative distribution of rights, re-

sources, or status in the absence of a bounded political community, the members of which

determine among themselves what accrues to whom. On the other hand, the asymmetry of

political reciprocity also continuously undercuts the possibility of distributive justice: as we

shall see shortly, the boundaries that distinguish inside from outside, and citizen from non-

citizen, are notand cannot bethe outcome of a democratic decision taken by all interested

parties. Simply subordinating the entry or exit of immigrants to decisions arising from the

reciprocal relations between the citizens of a polity would collapse distributive justice into the

sheer positivity of positive law.

Seyla Benhabib has sought to neutralize or at least to mitigate this dilemma by devel-oping a theory of cosmopolitan justice that confronts the right to inclusion and exclusion that

political communities claim for themselves with the universal validity of human rights. Im-

migrants, she asserts, have rights, qua human beings, that no receiving democratic polity can

deny without contradicting its own moral foundations. Accordingly, the hallmark of dialogi-

cal universalism, as she calls her interpretation of cosmopolitan justice, is to avoid either

* This paper was published, unfortunately, in truncated form in Contemporary Political Theory (2009)4, 415-434. The present version is complete. This paper was written with the financial support of the NetherlandsOrganisation for Scientific Research (NWO). I greatly appreciate comments to an earlier version of this paper byZenon Bankowski, Emilios Christodoulidis, Luigi Corrias, Bonnie Honig, Ivana Ivkovic, David Janssens, Nanda

Oudejans, Bert van Roermund, Andy Schaap, Neil Walker, and two anonymous referees.** Chair of Legal Philosophy. Department of Philosophy, Tilburg University, P.O. Box 90153, 5000 LE

Tilburg, the Netherlands. E-mail: [email protected] ; tel. + 31 13 466 3069; fax. + 31 13 466 2892.


2/17Electronic copy available at: http://ssrn.com/abstract=1726285

2

simply opposing political particularity and moral universalism or reducing the one to the

other. Acknowledging that there is an irreducible tension between politics and morality, her

defense of the rights of immigrants advances the claim that human rights allow of mediating

between these two terms.

While Benhabibs account is rich and subtle, and goes a long way toward clarifying the

normative problems that immigration poses for a comprehensive theory of distributive jus-tice, this paper shows, in sections 2 and 3, that the attempt to steer a middle course between

political particularity and moral universalism fails because political and moral reciprocity are

not only distinct but irreducible to each other. But need we assume that the boundaries of a

polity are merely the expression of particularity? Section 4 rebuts this assumption, showing

that boundaries are particular and general, inasmuch as they include by excluding, and ex-

clude by including. Expanding on this insight, section 5 argues that immigrants are party to a

form of political reciprocity because no polity can close itself off from an outside without in-

cluding itself and what it excludes in a more encompassing proto-political community. As

political reciprocity is indissolubly linked to the first person plural perspective of a we, what

conditions the legal institutionalization of this perspective is not morality or universal human

rights but variations of proto-political reciprocity that shade out into more or less inchoate

manifestations of a joint interest. Finally, section 6 engages critically with the idea of dialog-

ical universalism, arguing that the dia of political dialogue involves a double asymmetry

between those within and those without, and that this double asymmetry is constitutive for

the in between that makes distributive justice possible.

2. Another Cosmopolitanism

In a number of recent publications Benhabib has sought to outline the conditions under

which immigration can be incorporated into a cosmopolitan theory of distributive justice, if

we take distributive justice to include decisions about membership as much as about rights

and resources. Her contribution takes an important step beyond the work of political philo-sophers such as Pogge and Beitz (Pogge, 2002; Beitz, 1999; Beitz, 2000). While these philo-

sophers have moved to correct Rawls untoward reduction of the focus of distributive justice

to peoples, their account of global-distributive justice for individuals neglects one of the

first principles of distribution, namely the distribution of human beings as members of di-

verse communities. Whence the question that drives her critical reinterpretation of cosmo-

politan justice: What are the principles for the just distribution of membership? (Benhabib,

2004, 22-23).1

Benhabibs answer to this question, which is part and parcel of her project of another

cosmopolitanism, begins by taking issue with a brand of cosmopolitanism that in fact would

do away with the problems of immigration and membership by founding a world federal

state. The latter project has been endorsed by Jrgen Habermas in a well-known article aboutKants essay on Perpetual Peace. Whereas Kant defends a cosmopolitan right

(Weltbrgerrecht) in the framework of a federative union among independent states, Ha-

bermas argues in his article that only a world polity could provide the institutional setting

necessary for cosmopolitan justice (Habermas, 2005, 168, 181). Although she does not men-

tion Habermas by name, Benhabib shares Kants and Arendts deep preoccupation about this

approach to cosmopolitanism. She insists that membership in bounded communities . . .

remains . . . crucial; that democracies require borders; that the demos must assert control

over a specific territorial domain (Benhabib, 2006, 20, 33, 35-36). Why the insistence on

1 Although Benhabib also distinguishes between theories of justice and theories of distributive justice,such that the former include issues of status, whereas the latter do not, I refer to distributive justice as encompass-ing distributive issues with respect to status.


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boundaries as a necessaryeven constitutivefeature of political community? Although she

offers several arguments, Benhabibs vindication of bounded political communities is ulti-

mately an argument about reflexivity: boundary-setting is part and parcel of collective self-

legislation. It is not only the general laws of self-government that are articulated in this

process; the community that binds itself by these laws defines itself by drawing boundaries as

well, and these boundaries are territorial as well as civic (Benhabib, 2006, 33). On a strongreading of reflexivity, civic and territorial boundaries are necessary because they make it

possible for a manifold of individuals to identify themselves as a group and, therewith, to

engage in acts of collective self-rule. Taking this argument a step further, there can be no

distributive justice in the absence of a collective, the members of which determine among

themselves who is entitled to what. Distributive justice, as Arendt would phrase it, presup-

poses bounded politicalreciprocity. This insight about political reciprocity bears directly on

immigration: those inside determine among themselves the rules governing the entry and

participation of nonmembers. Notice that this asymmetry is not suspended but in fact reaf-

firmed when members decide to establish free entry unless . . . as the default rule of immi-

gration policy.

But, as Benhabib notes, to settle for political asymmetry and an alleged right to inclu-

sion and exclusion on the part of receiving democratic polities would be to overlook the con-

dition that governs the foundation of political community. Benhabib dubs this condition the

paradox of democratic legitimacy: democracies cannot choose the boundaries of their own

membership democratically (Benhabib, 2006, 35). This insight echoes earlier critiques of

social contract theories, which note that the preliminary problem concerning who is a party

to the social contract cannot itself be solved by appealing to an earlier social contract without

falling prey to an infinite regression or a petitio principi. The emergence of political commu-

nity requires unauthorized acts that seize the initiative to identify what counts as the com-

mon interest and who is a party to that interest (Van Roermund, 1997, 149-150; Waldenfels,

1999, 14). Rawls is particularly vulnerable to this problem, Benhabib argues, because he takesa closed polity as the point of departure for his theory of justice (Rawls, 191, 8; Rawls, 1996.

41). HisLaw of Peoples continues to take this assumption for granted, albeit in the guise of a

people. To the extent that social contract has no answer to the question concerning mem-

bership, his claim that a people has at least a qualified rightto limit immigration begs the

normative question concerning such a right (Rawls, 1971, 8; Rawls, 1996, 41).

The conjunction between the paradox of democratic legitimacy and bounded political

communities explains why, according to Benhabib, we need to think the problem of justice

afresh, and why justice must be cosmopolitan. As to justice, the problem is this: if the act that

kickstarts democratic polities, by separating member from non-member, and inside from

outside, is not itself democratic, how can we avoid collapsing justice into the sheer positivity

of a foundational act? Drawing on Derridas notion of iterations, Benhabib asserts that theparadox of democratic legitimacy is not only the problem but also an ingredient of its solu-

tion: although the demos, as the popular sovereign, must assert control over a specific terri-

torial domain, it also can engage in reflexive acts of self-constitution, whereby the boundaries

of the demos can be readjusted (Benhabib, 2006, 35-36). But that boundaries can be reite-

rated is clearly not enough, for the problem is to readjust them in a way that accounts for the

interests of those who have been excluded without their prior consent. This pressing problem

moves Benhabib to argue that justice must be cosmopolitan. For, at bottom, cosmopolitan-

ism is the view that the asymmetry of political reciprocity between the members of a polity

presupposes and rests on the symmetry of moral reciprocity between human beings. Moral

reciprocity, Benhabib argues, takes on the form of human rights claims. In contrast with the

civic and territorial boundedness of political community, human rights claims are bound-

lesshence universally validbecause they hold for everyone, everywhere, and everywhen.


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As such, human rights explain why the interests of those who have been excluded without

their consent ought to be taken into account by a receiving democratic polity. To the extent

that they institutionalize the insight that the rights of the citizens rest on the rights of man

(Benhabib, 2006, 32), modern constitutional democracies have the conceptual and norma-

tive wherewithal to mediate between political particularity and moral universalism. We, the

people refers to a particular human community, circumscribed in space and time, sharing aparticular culture, history, and legacy; yet this people establishes itself as a democratic body

by acting in the name of the universal (Benhabib, 2006, 32). Accordingly, universality, un-

derstood as the realization of the fundamental reciprocity between individuals as human be-

ings, is the principle that allows of settling the question concerning the just distribution of

membership in democratic communities, even though this principle is never fully realized

nor realizable.

In short, while Benhabib defends bounded political communities against those who

would further the cause of distributive justice by embracing politically unmediated forms of

moral universality, she also opposes those views that would render the boundaries of political

community immune to moral justification (Benhabib, 2006, 19). This approach, which she

calls dialogical universalism, is the lodestar of another cosmopolitanism. Cosmopolitan-

ism, she immediately adds, is a philosophical project of mediations, not of reductions or of

totalizations (Benhabib, 2006, 20).2

3. Political and Moral Reciprocity

As Benhabib herself notes, the mediation between political particularity and moral universal-

ity confronts cosmopolitan right with a dilemma. On the one hand, cosmopolitan right, if

it is to deserve its name at all, must bind, that is, must guide as well as being enforceable on,

the actions and the will of sovereign legal and political entities (Benhabib, 2006, 26). This

acknowledgment brings her perilously close to Habermas, who recognized that securing the

binding and enforceable character of human rights requires their legal institutionalization.3

Ifhuman rights are to be binding for and enforceable with respect to individual states, Benha-

bib has to run the whole mile with Habermas, endorsing the foundation of a world federal

state. But, for the reasons aduced above, she shies away from this form of cosmopolitanism,

immediately adding that although cosmopolitan right trumps positive law, there is no

higher sovereign that is authorized to enforce it (Benhabib, 2006, 26).

The source of this dilemma is the attempt to reconcile two forms of reciprocity that

are irreducible to each other. Moral norms speak to reciprocity between individuals as hu-

man beings, regardless of their political affiliation; by contrast, legally binding and enforcea-

ble norms ultimately presuppose political reciprocity. This problem crops up when, disputing

Rawlss limited right to control immigration, Benhabib proceed[s] from the assumption that

liberal peoples have fairly open borders; that they . . . coexist within a system of mutual obli-gations and privileges, an essential component of which is the privilege to immigrate . . .

(Benhabib, 2004, 93, emphasis added). It is significant that Benhabib refers to a privilege

to immigrate, for, under international law, there is no general right to immigration that

aliens can invoke against receiving countries. So, a privilege to immigrate either presuppos-

es political reciprocity between members, such that those inside grantoutsiders leave to en-

ter, or it draws its normative character from moral reciprocity between individuals. In the

first case, the reference to a privilege does not get us beyond the status quo, as the asymme-

try between the positions inside and outside continues to hold; in fact, the notion of fairly

2 See also (Benhabib, 2007) and other articles in the same number of the European Journal of Political

Theory devoted to a discussion of Benhabibs position on immigration and distributive justice.3 Human rights are juridical by their very nature. What lends them the appearance of moral rights is . . .

their mode of validity, which points beyond the legal orders of nation-states (Habermas, 2005, 190).


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open borders (emphasis added) presupposes political asymmetry. In the second case, it rein-

troduces the dilemma noted above, namely, that although cosmopolitan right is held to

trump positive law, there is no sovereign that may enforce the privilege to immigrate. More

generally, references to cosmopolitan right as embodying norms that are quasi-legal (Ben-

habib, 2006, 23), or that are neither merely moral nor just legal (Benhabib, 2006, 20),

highlight the discontinuity between morality and politics, but they dont bridge it.Not surprisingly, this dilemma comes to a head twice during Benhabibs discussion of

human rights. The first time occurs during her analysis of Arendts famous reference to a

right to have rights. According to Benhabib, the word right is used in two different ways

in this phrase. The first usage evokes a moral imperative: Treat all human beings as per-

sons belonging to some human group and entitled to the protection of the same. The second

use of the term right is juridico-civil, and implies membership in a political and legal com-

munity, such that I have a claim to do or not to do A, and you have an obligation not to

hinder me from doing or not doing A. Crucially, Benhabib argues that the second usage is

built upon [the] prior claim of membership in the first (Benhabib, 2004, 56-57). But this

alleged derivation is clearly incorrect: to acknowledge that all human beings ought to be

granted membership in some politico-legal community by no means entails that this impera-

tive would be violated if and when we were to refuse to enter into civil society with one

another, that is, if we refuse to become legal consociates (Benhabib, 2004, 58-59). The rea-

son for the discontinuity between these two sorts of rights is straightforward: the fact that

you, I, or anyone else can claim a right to membership in some community in no way implies

that you and I have a joint interest that we are prepared to institutionalize by way of binding

and enforceable rights in a community we call our own. In this vein of thinking, to become

legal consociates it does not suffice to enter into civil society with one another, as Benha-

bib suggests; we must compact political communityhence membershipamong us. One

does not enter into civil society in the sense of a (hypothetical) compact between individu-

als who thereby become its members, because civil society is open to all those who wish tointervene in it, regardless of their political filiations.

The point, then, is not so much that there is a difference in concretion between the

first and second usages of right, such that a legal right is simply more determinate than a

moral right. Rather, there is a difference in kindbetween the two: the latter speaks to reci-

procity between individual human beings, the former to reciprocity between political equals.

As Arendt puts it,

equality, in contrast to all that is involved in mere existence, is not given us but is the result of hu-

man organization insofar as it is guided by the principle of justice. We are not born equal; we be-

come equal as members of a group on the strength of our decision to guarantee ourselves mutually

equal rights (Arendt, 1973, 301).

The incongruity between moral and legal rights appears a second time, when Benha-

bib attempts to posit a non-foundationalist human rights discourse as the touchstone of cos-

mopolitan right. The core of this discourse is what Benhabib calls egalitarian reciprocity,

the idea that in the sphere of morality, generality means universality; universality refers to

what would be valid for all human beings considered as beings equally entitled to respect and

concern (Benhabib, 2004, 133). Specific schedule[s] of rights, she argues, are derived from

the egalitarian reciprocity that informs this universal principle of right. Evidently, this dif-

ferentiation reproduces the general distinction between, respectively, legal and moral rights.

The perplexities that arise from attempting to derive the former from the latter become ap-

parent in a passage in which Benhabib rehearses how egalitarian reciprocity would guide a

dialogue in which a member and non-member of a polity exchange reasons about whether or

not the latter should be admitted to membership:


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If you and I enter into a moral dialogue with one another, and I am a member of a state of which

you are seeking membership and you are not, then I must be able to show you with good grounds,

with grounds that would be acceptable to each of us equally, why you can never join our association

and become one of us . . . Our reasons must be reciprocally acceptable; they must apply to each of

us equally (Benhabib, 2004, 138).

But this is surely to beg the question: how can I enter into a moraldialogue with you about

whether you may become a member of our polity, now or in the future? After all, the whole

point of the dialogue ispolitical:you request to join our association, not an association in

general. When providing you with reasons to this effect, I act as a member of the community,

not as a human being. Accordingly, our dialogue is asymmetrical: when giving you reasons, I

claim, explicitly or implicitly, that I and the other members of the community are entitled to

determine among ourselves whether or not we will allow you to join our association, and on

the basis of reasons that we regard as relevant from the point of view ofour joint interest. To

overcome this asymmetry, you must invoke a right to membership of some kind contained in

or implied by the schedule of rights enacted by the political community to which I belong, not

the fact that you and I are human beings.To conclude, Benhabibs attempt to mediate between political particularism and mor-

al universalism by subordinating civic and territorial boundaries to the boundlessness of hu-

man rights is driven by the insight that, in the light of the democratic paradox governing the

foundation of political communities, settling for political reciprocity and the asymmetries it

creates between members and nonmembers, inside and outside, would amount to forfeiting

an essential condition of distributive justice. I wholeheartedly support this insight. Yet Ben-

habibs way of dealing with this problem fails: political and moral reciprocity are disconti-

nuous, incongruous. Accordingly, Benhabib faces a conceptual and normative impasse. Ei-

ther she embraces Habermas project of a world federal state as a means of securing cosmo-

politan right, but then this right is no longer the right ofothers, in the strong political senseBenhabib wants to retain. In this case, another cosmopolitanism would become, to borrow

Benhabibs own terms, a philosophical project of reductionsby dint of collapsing morality

into politicsand of totalizationsby virtue of encompassing political plurality within a

single polity. Or she holds on to the particularity of political community, hence to otherness

as the manifestation of difference, but then Benhabib must forfeit the strong notion of a

rightof others she is no less keen to safeguard. In this case, another cosmopolitanism

ceases to be a cosmopolitan project. As a result, the dilemma outlined at the outset of this

paper returns unabated: while political reciprocity conditions the possibility of distributive

justice, it also undercuts the possibility of distributivejustice.4

4. Inclusive Exclusion - Exclusive InclusionWe need to make a fresh start. To this effect, I want to begin by critically examining the as-

sumption that governs contemporary attempts to approach immigration from the perspective

of a cosmopolitan theory of justice. Indeed, Benhabib takes for granted that transcending the

civic and territorial boundaries of political communities requires introducing the moral point

4 In this vein,Cohens and Sabels model of deliberative polyarchy has difficulties in dealing with theconceptual and normative problems that immigration poses for theories of democracy and distributive justice. Asthe authors define it, what makes deliberative polyarchypolyarchic is its use of situated deliberation within deci-sionmaking units and deliberative comparisons across those units . . . (Cohen & Sabel, 2005, 780; see also Cohen& Sabel, 1997). For, in terms of the paradox of democratic legitimacy, the problem is not only assuring delibera-

tion within a pre-given unit or comparisons across units but rather what sense can be made of deliberationabout civic and spatial boundaries between citizens and would-be immigrants, given the asymmetry betweeninsiders and outsiders that governs political deliberation.


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of view of reciprocal relations between human beings.5 In other words, Benhabib and others

assume that political boundaries, both civic and territorial, are merely the manifestation of

particularity. Here is where my own questioning begins: could closer scrutiny of the struc-

ture of the boundaries of political communities reveal that they are also the expression of

generality, even if not of universality? In other words, would spatial boundaries be a specific

articulation of the relation between the particular and the general, such that this articulationmakes clear why and how border crossings by immigrants are thoroughlypolitical events

which call for a no lesspoliticalresponse?

Answers to these questions will be forthcoming in the following section. But those an-

swers turn on a prior issue, which requires our initial attention: how are the spatial bounda-

ries of a polity structured? To address this issue, I propose to return to examine more closely

Benhabibsvindication of bounded political communities as an argument about reflexivity:the setting of spatial (and civic) boundaries is part and parcel of what it means for collectives

to engage in acts of self-legislation. In particular, the spatial boundaries of a polity arise

through a collective self-closure. On this reading of political reflexivity, acts of collective self-

closure denote those legislative acts whereby the members of a polity are deemed (1) to arti-

culate a common interest by referring to themselves as (2) the groupthe wethat posits

the boundaries of a legal space in (3) its own interest (see Van Roermund, 2003) . In an ini-

tial approximation, what renders reflexivitypoliticalis, on the one hand, the reference to a

common interest whence a manifold of individuals can view themselves as a unity, and, on

the other, that the acts that posit spatial boundaries claim to be the legal articulation of a

common or collective interest.6

The European Union provides a good example of how this triad of elements deter-

mines the reflexive structure of legal space. This example is particularly apposite because

Benhabib views the EU, perhaps the most developed post-national polity to date, as a prom-

ising illustration of the era of cosmopolitan norms, in which new forms of political agency

have emerged that challenge the distinction between citizens and long-term residents, insid-ers and outsiders (Benhabib, 2006, 47; Benhabib, 2004, 129-170).7

Let us begin with (2). Article 1 of the Treaty of Rome, the founding treaty of the Euro-

pean Community, reads as follows: By this Treaty, the High Contracting Parties establish

among themselves a European Economic Community . . . If Article 1 is formulated in the

first person plural form, it reads as follows: By this Treaty, we, the High Contracting Parties,

agree to establish among ourselves a European Economic Community. This amounts to the

claim that the member states, acting as a group, jointly posit the boundaries of the European

polity. Moreover, and turning to (1), Article 2 of the Treaty enumerates a series of joint or

common interests to be realized by the European polity, such as a harmonious and balanced

development of economic activities and a high level of employment and of social protec-

tion. It also indicates that these shared interests are to be realized through the enactment ofa common market. By referring to the market as common, the Treaty of Rome transforms

this economic notion into a normative and, in particular, politicalnotion: the realization of a

common market is postulated as a common interest, such that day-to-day political debate

5 Benhabib by no means stands alone here. Two prominent contributions to the debate on immigrationand cosmopolitan justice that also endorse this assumption are Carens (1987) and Bader (2005). The works ofPogge and Beitz cited above also embrace this assumption, albeit in the context of a somewhat different set ofproblems pertaining to cosmopolitan justice.

6 This formulation encompasses both acts of constituent and of constituted power; more precisely, actsthat claim to be the legal articulation of a common or collective interest have to a lesser or greater extent a para-doxical structure: acts of constituent power can only innovate if they succeed in presenting themselves as acts of

constituted power. See (Lindahl, 2007) for a fuller description of the paradox of constituent power.7 In the forthcoming I will not distinguish between the European Union and the European (Economic)

Community, as nothing of importance for my paper turns on this distinction.


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and conflict in the European polity turn on what determines the market as common. In this

respect, what counts as a high level of employment, or as social protection, is a political,

not a merely economic, issue. Notice, moreover, the twofold process of inclusion and exclu-

sion: the act that selects certain interests as worthy of legal protection also posits a bounded

space as the politys common space: the common market. The notion of a common market

does not erase boundaries between member states; but it does provide a general criterion forregulating boundary crossings of goods, persons, services and capital between these states

the so-called four freedoms. Henceforth, each of the places in the European polity becomes

an ought-place, i.e. a place in which labor, goods, services, and the like ought or ought not to

be situated. In other words, the boundaries that carve up the European legal space into a ma-

nifold of legal places make it possible to qualify individuals and their actions as emplacedor

misplaced. Moreover, each of these ought-places refers to the unity of the common market

and derives its meaning as an ought-place from this unity, in such a way that the renegotia-

tion of boundaries between member states amounts to a renegotiation of the spatial unity

implied in a common market. We can now introduce (3), the last element of the triad which

composes the reflexive structure of a legal space. Not only do the High Contracting Parties,

agree to establish among themselves a European Community, in the form of a common

market, but they do so in their own interest. In effect, the point of creating the European pol-

ity is to protect and promote the common or internal market vis--vis the external market:

the rest of the world. The distinction between inside and outside is not neutral: the internal

market ispreferredto the external market.8 More generally, the self-closure of the EC brings

about what I will call a twofold first-order preferential differentiation: the Treaty of Rome

prefers the internal market when differentiating it from an external market, and a we to a

them, when differentiating members from nonmembers.

Thus far, my account of the structure of spatial boundaries renders explicit what Ben-

habib and a host of other authors take for granted when arguing that boundaries are particu-

lar, namely, that boundaries include and exclude. But closer consideration of the boundariesof the European polity shows that this presupposition is reductive in two inversely correlated

ways. First, by closing itself off as an inside over against an outside, the European polity also

includes itself and what it excludes in an encompassing whole. In effect, by demarcating itself

as an internal market over against an external market, the EC also refers to both places as

located in a global market. The self-inclusion of the EU in a world market is manifested,

amongst others, in the Preamble to the EC Treaty, in which the Member States express their

desire to contribute, by means of a common commercial policy, to the progressive abolition

of restrictions on international trade. Article 131 of the EC Treaty develops this collective

intention as follows: By establishing a customs union among themselves Member States aim

to contribute, in the common interest, to the harmonious development of world trade, the

progressive abolishment of restrictions on international trade and the lowering of customsbarriers. If the notion of a European market makes it possible for actors to identify them-

selves as operating inside or outside any given place within the European polity, the notion of

a global market also enables those actors to identify themselves as inside or outside the Eu-

ropean polity. Crucially, the global market is a politicalmore properly: a proto-political

notion, to the extent that the Preamble to the EC Treaty, as well as its Article 131, posit both

the European polity and third parties as an enlarged we that, although not institutionalized

as such, nonetheless have a common interest (Article 131) in the functioning of the global

market. Not only do the boundaries of the European polity refer beyond it, to the unity of a

global market, but they are only intelligible as its boundaries because they locate the polity as

one of a manifold of ought-places that compose a single legal space. Accordingly, the bounda-

8 See (Waldenfels, 1994, 197)for the notion of a preference in the difference.


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ries of the European polity separate it from other polities by joining it thereto. Here, then, is a

first aspect of what I will henceforth call the logic of boundaries: boundaries dont simply

include and exclude; theyinclude by excluding.

This feature of the logic of boundaries is no less effectual in the case of immigration

and immigration policy. To be sure, the beginnings of an immigration policy for the Euro-

pean polity came much later than the Treaty of Rome, namely in the so-called Area of Free-dom, Security and Justice (AFSJ) enacted in the Amsterdam Treaty of 1997. It remains to be

seen how far the EUs member states are prepared to go in transferring legally binding immi-

gration policy to the European polity. It is significant, in this respect, that despite the Irish

no to the Treaty of Lisbon, the European Parliament has just approved, at the time of writ-

ing this article, a controversial draft directive that includes common standards on the deten-

tion and removal of illegal immigrants. In any case, the Amsterdam Treaty and all immigra-

tion policy subsequently enacted under the aegis of the AFSJ deploy the same logic of boun-

daries discerned with respect to the common market. On the one hand, the EUs boundaries

separate an inside from an outside, such that those within claim to have a right to determine

the conditions under which aliens may enter and participate in the European polity. Here,

once again, is the twofold first-order preferential distinction between inside and outside, and

we and them. On the other hand, the European polity and its member states not only expect

individuals inside but also those outside it to recognize and abide by the (incipient) right to

closure the EU claims for itself in the immigration policy provisions of the Amsterdam Treaty

and all further secondary legislation. This normative claim with respect to outsiders only

makes sense because the positions inside and outside the European polity acquire their nor-

mative meaning as ought-places from the perspective of a more encompassing legal space in

which citizens and aliens are deemed to have their own place. This is what makes it possible

to say, for example, that legal immigrants are emplaced, and illegal immigrants misplaced.

Once again the logic of boundaries kicks in: in the very process of separating the AFSJ from

the rest of the world, the EUs boundaries join it thereto. In the same way that the EUs eco-nomic and commercial policies presuppose and refer to a global market, so also European

immigration policy presupposes and refers to the unity of an encompassing legal space that

enables the EU to claim a right to determine who may enter the polity and who ought to leave

it. The claim to a common, encompassing legal space in which, in principle, everyone has

her/his own place, is the indispensable presupposition of immigration policy, European or

otherwise.

But this is only half of the story. Indeed, by including itself and other polities within a

specific institutionalization of the global market, the Treaty of Rome also excludes, to a lesser

or greater extent, other ways of institutionalizing the market as a common legal space and

other interpretations of what renders Europe and the globe a common legal space. It is no

coincidence, therefore, that the World Social Forums clarion call, Another world is possi-ble, has, as its correlate, the European Social Forums Another Europe is possible. Both

cries contest how the current legal order institutionalizes the commonality of the European

and the global market and, to a lesser or greater extent, to what extent the notion of a market

ought to determine the commonality of these legal spaces. Because political commonality is

always posited as a (spatially and civically) bounded commonalityeven when what is at

stake is the realization of a global legal order of some sortall political claims to commonali-

ty can be contested. This has an important implication for immigration: boundary crossings

by immigrants can be a way of challenging the commonality claimed for a legal space, even if

this challenge is not explicitly articulated as such. Although I will discuss this case in greater

detail shortly, a brief initial reference to border crossings by so-called economic immigrants

may serve to illustrate this idea. In effect, when entering the EU in search of work, so-called

economic immigrants, many of whom flee from conditions of desperate poverty, can be


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My further claim is that the logic of boundaries suggests a way out of the conceptual and

normative impasse governing Benhabibs attempt to mediate between political particularity

and moral universality. In effect, the foregoing analysis of how the boundaries of the EU do

their work shows that Benhabibs formulation of theproblem facing a theory of distributive

justice is misguided. For the logic of boundaries entails that political boundaries are never

only particular, as Benhabib and others take for granted. To the extent that they include byexcluding, boundaries are also general. The claim to validity implicit in the idea that legal

places are ought-places is intimately linked to the fact that a legal place can only appear as

such if it refers to a unity of ought-places, that is, to a common space. Because boundaries

can only separate if they point beyond themselves towards a whole, transcendence is consti-

tutive for the boundaries between legal places within a polity, as well as for the boundaries

between polities. Crucially, transcending the particularity of political boundaries does not

require a moral supplement, as Benhabib and others assume; instead, the articulation of par-

ticularity and generality is thoroughly political. For the implication of the insight that boun-

daries cannot exclude without including is that nonmembers are never only outsiders; they

are also already, in some sense, insiders, members of the political community. At stake, then,

is not the moral justification of boundaries, nor a defense of a privilege to immigrate on

the basis of the humanity shared by those within and without, but rather the politicalcontes-

tation of boundaries, both civic and territorial, and a politicalresponse to such contestation,

in line with the concept of the political indicated at the outset of Section 4 above.

The ongoing European debate about economic immigrants and their alleged abuse of

political asylum law proves illuminating in this respect. The legal measures put in place in the

framework of external border controls, asylum and immigration point to a sustained effort to

draw and enforce a sharp line between asylum-seekers on political grounds and so-called

economic immigrants. Nonetheless, the inclusive exclusiveness of boundaries suggests that

the pervasive distinction between economically and politically motivated border crossings

into the EU can be contested on the EUs own terms. Indeed, the EUs first-order preferentialdifferentiation of space and membership is paired to a twofold second-order preferential dif-

ferentiation: the EU prefers the global market to an indeterminate outside, and we, the par-

ticipants in and interested parties to a global market, to an indeterminate them. Although

one might be tempted to view the first-order preferential differentiation as political, and the

second-order preferential differentiation as purely economical, the wording of the Preamble

to and Article 131 of the EC Treaty invokes a common interest that is more inclusive than

merely the interest of the European polity. To this extent, the second-order preferential diffe-

rentiation introduced by European legislation is already political, or more properly, as I shall

shortly explain, proto-political. Returning to Benhabibs rehearsal of a moral discourse about

membership, the kinds of reasons that I can give, as a member of the European polity, for

why you, an economic immigrant, may or may not enter or become a member of our associa-tion, are political, rather than moral. For, in terms of the Preamble to and Article 131 of the

EC Treaty, the acts that decide on the legality or illegality of boundary crossings by immi-

grants can only claim to being reasonable in a self-consistent manner to the extent that they

posit the first-order preferential differentiation between inside and outside in a way that sa-

feguards the second-order preferential distinction as well. Notice, moreover, that the minim-

al form of political reciprocity posited by this second-order preferential differentiation gives

rise to a new form ofasymmetry, not to unlimited moral reciprocity between human beings.Accordingly, to label individuals who enter the EU as economic immigrants is to acknowl-

edge, albeit indirectly, that their boundary crossings are politicalacts. More precisely, their


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boundary crossings point to a threshold of distributive justice that I will call proto-political

reciprocity.11 Let me unpack this expression:

I speak, first, of proto-politicalreciprocity, rather than of moral reciprocity, because

to the extent that European immigration policy qualifies individuals as economic immigrants,

it indirectly recognizes that they evoke the first person plural perspective of a we that has a

shared interest in the realization of a global market. Remember that the reference to a com-mon interest is a constitutive feature of political reflexivity. This recognition is a first and

essential step toward creating the condition by which those interested in the realization of the

global market can also become its subject: collective self-legislation. As politics is indissolub-

ly linked to the first person plural perspective of a we, what precedes the institutionaliza-

tion of this perspective is not cosmopolitan norms, which endowindividuals [as individuals]

with certain rights and claims (Benhabib, 2006, 16), but variations of proto-political reci-

procity that shade out into more or less inchoate manifestations of a joint interest. Converse-

ly, boundary crossings by economic immigrants, and the qualification of those boundary

crossings by authorities as legal or illegal, illustrate the process whereby more or less in-

choate manifestations of a joint interestand therewith the question concerning who is a

member of the collective that engages in acts of self-legislationcan become progressively

thematic. Although collective self-legislation presupposes and never abandons the first per-

son plural perspective of a determinate we, the logic of boundaries entails that the thematic

scope of this we is more or less variable. The political question concerning who has an in-

terest in a collective, i.e. the question concerning membership, is inseparable from the

process by which a class of individuals draws our interest, in the sense of individuals who

arouse our attention by dint of raising claims that come to register as political claims.

Arendts celebrated formula, the right to have rights, does not mean a moral right to have

legal rights, as Benhabib would have it; it is, I submit, a felicitous articulation of the thre-

shold leading from proto-political to political reciprocity. Arendts formula, on my reading,

evokes the emergence or genesis of a political community, not the mediation between politi-cal particularism and moral universalism (compare with Honig, 2006, 107, and Balibar,

2003, 12).

But I speak, second, ofproto-political reciprocity, instead of political reciprocitytout

court, because, in the case of the EU, the first person plural perspective enjoined by the

process of realizing a global market has not obtained legal form by way of officials that, acting

on behalf of a we, can authoritatively arbitrate about claims raised by economic immi-

grants. Remember that, as concerns collective self-legislation, the legal articulation of a

common interest is a constitutive feature of political reflexivity. As concerns the EU, what is

at stake, then, is putting in place the legal preconditions of distributive justice on issues of

economic immigrants, by making the passage from proto-political to political reciprocity. To

the extent that the EU has effectively transformed immigration policy into an integral part ofits economic and commercial policy, the institutional framework of the World Trade Organi-

zation suggests one way, however precarious, of realizing this passage. Indeed, it would not

be inconsistent with the EUs normative commitment to the realization of a global market

that it agrees to the appointment of a body in the WTO that could authoritatively settle claims

by economic immigrants.12

11 The forthcoming analysis is quite close to what Isin calls a genealogy of citizenship, understood as theprocess of becoming political, namely that moment when one constitutes oneself as a being capable of judg-ment about just and unjust, takes responsibility for that judgment, and associates oneself with or against other infulfilling that responsibility (Isin, 2002, 276).

12 In a sense, this way of dealing with normative claims raised by immigration would come close, if insti-tutionalized, to Habermass plea for a global polity that deals with issues in which a global interest is at stake. ButI sharply take issue with Habermass assumption that a global democratic and constitutional polity would have no


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We can now revisit the dilemma outlined at the outset of this paper. The dilemma,

you will remember, is that, on the one hand, securing distributive justice requires a legal or-

der that identifies, first, what ought to be attributed to whom, and, second, the officials that,

in the face of dispute, can authoritatively establish what ought to be allotted to whom. On the

other hand, as Benhabib and others have noted, the founding act of a polity is by definition

not itself democratic. This is clearly the case for the European polity: while the six foundingmember states claimed to represent European unity when signing the Treaty of Rome, they

had received no legal mandate to this effect from all possibly interested parties, whether

states or individuals, nor could they have, because the Treaty provides an initial delimitation

of who is a interested party. By taking the initiative of founding the European Community,

the signatories seizeEurope, disclosing it as a internal market, and they seize the world, dis-

closing it as a global market. This paradox reappears, unabated, in the circularity that go-

verns European immigration policy: while the EU claims a right to inclusion and exclusion

for itself because Europe is the own place of its citizens, a seizure gives rise to Europe and to

European citizens, to begin with (Lindahl, 2008).While a legal order is a necessary condition

for distributive justice, the foundational act without which no legal orderand a fortiorino

immigration policycan get going undercuts the possibility of distributivejustice.

The distinction and relation between a first and second-order preferential differentia-

tion provides a way to deal with this dilemma. For there can indeed be no distributive justice

without a first-order preferential differentiation: a manifold of individuals view themselves as

the bounded group, both civically and territorially, that, acting in its own interest, determines

what accrues to whom. Political reciprocity and suum cuique tribuere are the two sides of the

same coin. At the same time, the second-order preferential differentiation implies that the

acts of a collective subject that separate inside from outside, and member from nonmember,

eo ipse posit a more encompassing common interest as intersubjectively constituted. In this

way, the spatial and civic boundaries of a polity are not merely the expression of subjectivity,

in the sense of arbitrariness, but also involve the claim to a standard of objectivityof jus-ticewith respect to which the polity is not the sole custodian. Although distributive acts take

place from the first-person person plural perspective of a spatially bounded we, acts that

decide on the legality or illegality of boundary crossings by immigrants can only claim to be-

ing just, in a self-consistent way, if they posit the first-order preferential distinction between

inside and outside in a way that safeguards the extended we of a second-order preferential

differentiation. The inclusive exclusiveness of boundaries renders possible distributive acts

that can claim to being justto the extent that the first-order asymmetry they must posit af-

firms and remains consistent with the second-order symmetry they must presuppose.

6. In Between

Although the foregoing discussion of the logic of boundaries suggests a way of movingbeyond the conceptual and normative impasse facing the attempt to mediate between politi-

cal particularity and moral universality, doesnt it in fact provide a strong defense of Benha-

bibs larger philosophical project, namely the theory of cosmopolitan justice she characterizes

as dialogical universalism? Doesnt the foregoing analysis boil down to the thesis that we

can do without morality in a theory of distributive justice because the logic of boundaries

allows politics on its own to do the work of connecting the particular to the universal? It

seems as though the logic of boundaries is the true guarantor of the philosophical and prac-

tical viability of another cosmopolitanism. It would be the guarantor ofcosmopolitanism,

outside, such that politics becomes, as he puts it, global domestic politics Weltinnenpolitik (Habermas, 2005,

126). Although a global polity would have no outside in the sense of foreign territories located beyond its reach, orat least not initially, the inclusion and exclusion of interests required to institute the territory of a global polity

would ensure that it harbors, at least latently, strange places in what it calls its own territory.


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than to symmetry? An answer to this question is intimately related to a question I have kept

in reserve until now: how are boundary crossings by immigrants related to the acts by which

authorities qualify those crossings as legal or illegal? In the foregoing discussion, I have fo-

cused exclusively on qualifying acts. Their asymmetric relation to immigration consists, as I

have noted, in that such qualifications, when allowing entry and granting membership to

immigrants, anticipate the political meaning of their boundary crossingas, for example, aclaim concerning the commonality of the global market. The legal qualification of boundary

crossings is asymmetrical because it determines in advance what it means for immigrants to

cross a boundary, hence whence they are coming from and what we they invoke by enter-

ing. In this sense, legal qualifications precede boundary crossing byretrospectively deciding

on their political meaning.13 But boundary crossingsprecede legal qualifications as well, and

not merely because someone has to cross a boundary before this crossings can be deemed

legal or illegal. More fundamentally, boundary crossings have a certain precedence because

they never simply fit into the politys anticipation about where the immigrant is coming from

nor the we that s/he invokes when entering. In other words, boundary crossings can enter

from an outside in the strong sense of a place that has no place within the distribution of

places made available by a polity, even though they in some way ought to, in the politys own

terms, and invoke a we that bursts the extended we anticipated by the receiving polity.

Inevitably, a political community must anticipate the meaning of border crossings from with-

out in its own terms, for, without such anticipations, immigrants could not even begin to reg-

ister within the proto-political community. In the absence of an anticipated commonality,

political dialogue could not get started. But what renders border crossings opportunities for

political dialogue, rather than a monologue, is that the anticipated commonality is never en-

tirely borne out by crossings, never simply the fulfillment of our expectations: Do we really

know in advance whether the place whence an immigrant enters the EU is only a place in a

global market? Do we really know in advance whether s/he only speaks on behalf of we, the

interested parties to a global market? Border crossings by immigrants pose a challenge toreceiving communities because such crossings can retrospectively disrupt the anticipated

commonality on the basis of which a polity draws the second-order differentiation between

inside and outside, we and them, and to which a collective must respond. Hence, there is

no position de survol, as Merleau-Ponty would put it, whence it would be possible to settle in

advance Benhabibs question, What are the principles for the just distribution of member-

ship? Any response we could give in advance to this question already has begun to close

down possible contestations of what we deem to be common to us and those who would en-

ter. For the disruptive potential of border crossings by aliens is something no polity can con-

trol; it is what makes border crossings by aliens irreducibly asymmetricalacts in their own

right. More forcefully, this asymmetry makes it possible for boundary crossings by immi-

grants to un-settle or dis-locate distributive justice, intimating other distributions of insideand outside, member and non-member, that, unexpectedly, and to a lesser or greater extent,

could be our own. For, as we have seen, the self-inclusion of Europe as a common market is

also the self-exclusion that manifests itself in cries for another Europe. Not only are non-

members without in some minimal sense also members within but, conversely, members

within are also always in some way nonmembers without. Like any polity, the European poli-

ty harbors an outside within itself, such that, retrospectively, boundary crossings by immi-

grants can reveal Europe as being inside out.

Thus, the possibility of justice in the distribution of places and membership does not

lead back to, nor is grounded in, the symmetry of a prior commonality, human or other-

13 See Waldenfels (1994) for a careful study of the temporal paradoxes involved in the relation betweenquestion and response.


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wise, that guarantees reciprocal relations between the parties to that dialogue. Instead, the

possibility of distributive justice depends on unexpected claims to commonality, ever provi-

sional and ever precarious, that can emerge from the double asymmetry that joins and sepa-

rates those within and those without. This double asymmetry is constitutive for the dia of

political dia-logue, in the same way that it defines what it means that boundaries are in be-

tween members and nonmembers. This in between, which eludes control by members andby nonmembers, is the realm of distributive justice.


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Documents

Lindah, H. (2011). in Between- Immigration, Distributive Justice, And Political Dialogue. Contemporary Political Theory 10, 140-143