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Why human rights are not enough

To combat the narrow-minded view of whom society belongs to, we must recognise a more sophisticated idea of what it means to be a citizen.

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Most modern societies recognise two kinds of rights: those that we owe to all human beings, by virtue of our shared humanity, and those that we owe to our co-citizens in a shared society. We can call these “universal human rights” and “membership rights” respectively. The right to not be tortured or experimented on is owed to all human beings; the right to vote, or to access the welfare state, is restricted to members.

This two-track conception of justice was taken for granted by most theorists of the 20th century, but it is increasingly being questioned. The argument for universal human rights is clear. There are shelves filled with books explaining why we have an obligation to respect “human personhood” or “human dignity”. But why do have special obligations to those who happen to be members of our society? And how do we determine who is a member, anyway?

At best, the restriction of rights to members seems morally arbitrary. Why should someone’s life chances be so powerfully determined by the accident of which side of the Rio Grande they were born on? Ayelet Shachar calls this the “birthright lottery”, equivalent to the medieval idea of being born into a particular caste.

This preoccupation with distinguishing members from outsiders also seems to feed into nativist conceptions of nationalism. Tying rights to membership inevitably raises questions about who “really” belongs, and this in turn always seems to cast suspicion on racial, sexual or religious minorities and indigenous peoples. The rise of right-wing populism across the West is often tied to the idea that the “authentic” white/Christian members of society need to “take back” the nation from minorities.

This has made political philosophers nervous about membership rights. A few have taken the plunge and explicitly repudiated the very idea of such rights. These cosmopolitan theorists argue that rights that are currently limited to members – such as the right to settle, work and vote – should instead be seen as human rights, which people take with them as they move freely across the globe. On this view, there would be no need – and no justification – for distinguishing insiders from outsiders, members from non-members, or us from them. We are all just individuals who carry all of our rights with us around the world.

Most political philosophers, however, have not embraced this “terrestrial cosmopolitanism”. This is partly because it seems practically unfeasible, at least for the foreseeable future. John Rawls argued that political philosophers are in the business of articulating “realistic utopias” and rejecting the very idea of membership rights does not yet pass the feasibility test.

But many philosophers also think there may be something valuable in the idea of membership rights. A good society, we might think, should have some sense of solidarity: members would think of themselves as having special duties to one another, above and beyond the basic respect owed to all human beings. A one-track conception of justice, relying solely on universal humanitarianism, might not lead to a levelling-up in our treatment of outsiders – treating them as well as we currently treat insiders – but rather to a levelling-down, treating everyone as if they were strangers to whom we have no special obligations.

As a result, most contemporary political philosophers still have a two-track conception of justice that limits certain key social and political rights to members. At the same time, they are aware that appeals to the value and importance of membership are all too often combined with exclusionary conceptions of nationhood. And so, the very moment they introduce membership rights, they immediately insist that membership does not require that people share any particular identity, culture, loyalties or attachments. It is enough that people are willing to play by the rules of liberal democracy – rules that are themselves held to involve universal principles of respect for each other as free and equal persons.

This thinning of membership is understandable, but it leaves it quite unclear why we have special obligations to members. After all, the duty to respect others as free and equal persons is indeed universal – it should regulate our interaction with all human beings. It does not single out members. The idea of membership rights makes sense only if we share something meaningful with our co-members that we do not share with all human beings: something that is sufficiently valuable to merit special obligations.

In my view, political philosophers in recent years have evaded, rather than addressed, the grounds of membership rights. Philosophers are comfortable discussing what we owe each other as human beings, but they are reluctant to discuss what we owe each other as members. Charles Taylor calls this “the ethics of inarticulacy”. Membership rights are a fundamental feature of our ethical world, but we have become less and less articulate about their ethical underpinnings.

In reality, liberal democracy as a political form is not primarily grounded in human rights, but in membership rights. It relies heavily on an ethics of membership - a sense of belonging together in a shared society and having mutual obligations to other members.

Consider the welfare state. Some aspects of the welfare state are based on universal humanitarianism – for example, the emergency services have a duty to rescue anyone in a fire or flood, whether or not they are members. But other parts of the welfare state are intended to affirm and strengthen a sense of belonging together. Many of the public goods provided by the welfare state, such as parks, museums, and libraries, as well as its redistributive tax policies, are guided by an ideal of “social justice”, and the term here is instructive.

“Social” justice suggests that we share a society that belongs equally to all its members, and the task of the welfare state is to shape social relationships in accordance with the idea of equal membership. In the words of T H Marshall, the welfare state rests on “a direct sense of community membership based on loyalty to a civilisation that is a common possession”. The task of the welfare state is to provide the public goods and social policies which help to create a good society – one which belongs to its members.

Note how different this is from the moral logic of humanitarianism. It is not a response to suffering or to the denial of human dignity, but an effort to enable members to see society as a “common possession”. The assumption is that we form a community and that the function of the welfare state is to ensure that everyone can partake in the social and cultural life of that community, that everyone can feel that they belong to it and that the community belongs to them. In this view, a key function of the welfare state is to distribute the membership goods that people need to flourish in a shared society. Human rights recognise and respect us as human beings with inherent dignity, but the welfare state empowers us as members of a particular society to shape and to enjoy our shared society.

And this sense of “we”-ness helps to explain why citizens are willing to make sacrifices to support the membership claims of others. My sense of obligation to you flows in part from the perception that you and I share a common orientation to the “we”. I am willing to accept special membership obligations to you, above and beyond respect for your humanity, because we jointly value living together and belonging together in a shared society.

A fundamental question for political philosophy – and indeed for society generally – is whether we still believe in this idea of a shared society as a common possession. This idea emerged in the heyday of the nation-state, and it was often explicitly tied to assimilationist projects of nation-building. The welfare state was a tool for turning “peasants into Frenchmen” or turning “immigrants into Americans”. It presupposed that the beneficiaries of the welfare state are here to stay, and that it was a legitimate task of the state to (re)orient these residents towards a shared national society.

For critics of this vision, the use of the welfare state to “integrate” people into society is unsustainable. People today are too mobile, and too diverse, to ask or expect that they orient themselves to a shared national society, nor do they frame their political claims in terms of membership goods, and any attempt to force people back into the confines of nationhood will only feed exclusionary populism.

In my view, political philosophy has failed to address this criticism. Most political philosophers continue to assert the need for an ethics of membership, but they fail to articulate the basis for membership rights. In doing so, they avoid explaining how we can make sense of this idea of loyalty to a shared society, and what states can legitimately do to promote this sort of orientation amongst its mobile and diverse members.

Drawing on the Canadian experience, I have elsewhere suggested that one possible route forward is a new multicultural and postcolonial conception of nationalism. The idea of a multicultural nationalism is often seen as an oxymoron, both by nationalists who fear the disintegrating effects of multiculturalism and by multiculturalists who fear the assimilationist and exclusionary effects of nationalism. But around the world, citizens are “implementing the oxymoron”, in the words of two scholars of multicultural nationalism in Scotland.

Citizens today are certainly diverse, and they seek recognition of their diversity. But in many cases what they seek is the recognition that there are diverse ways of belonging to a shared national society. Members of minority groups are staking a claim to membership.

In many contexts, minorities express impressively high levels of national loyalty and solidarity, even as they seek multicultural recognition of the specific ways in which they belong to the nation. Sadly, members of the majority all too often interpret claims for minority recognition as a form of disloyalty, and discount the demonstrable acts of civic friendship and solidarity that minorities display. In this sense, a multicultural nationalism is not only about constructing new loyalties and solidarities, but about learning how to better recognize the sophisticated ways that people already combine diverse identities and shared loyalties within an ongoing national narrative.

We have much to learn about how such a multicultural nationalism emerges and takes root. But the first step is to recognize that contemporary Western societies continue to rely upon an ethics of membership that we are less and less able to articulate.

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Will Kymlicka is the Canada Research Chair in Political Philosophy. He is the author of Multicultural Citizenship.

This article is part of the Agora series, a collaboration between the New Statesman and Aaron James Wendland, Professor of Philosophy at the Higher School of Economics. He tweets @ajwendland.