Abstract
Polities appeal to the principle of distributive justice when justifying the right to inclusion and exclusion they claim for themselves with respect to immigrants: to each their own place. This paper attempts, in a first stage, to explain the nature of the link between distributive justice and an alleged right to inclusion and exclusion, as manifested in the political use of indexicals such as ‘we’, ‘here’, and ‘now’. Drawing on an analysis of the European Union, it subsequently shows why the use of political indexicals, when officials exercise the EU's putative jus includendi et excludendi, is only possible by invoking the utterance of a first ‘we-here-now’ that has no referent. The relation between distributive justice and an alleged right to inclusion and exclusion—a polity as a nomos, as I will call it—is rendered both possible and continuously undermined by an anomos—the invocation of a polity and a world that are not and cannot be in empirical space and time.
INTRODUCTION
The aim of this paper is to explore the relation between distributive justice and the right to inclusion and exclusion polities claim for themselves with respect to immigrants. In particular, I will link this alleged jus includendi et excludendi to a feature of Ulpian's formula, suum cuique tribuere, that has gone largely unnoticed in discussions of distributive justice: the quasi-indexicality of suum cuique. Pointing to the empty formality of ‘to each their own’, those discussions move directly to the question concerning the criterion or criteria on the basis of which rights and resources are to be meted out to each. As a result, they pass over in silence that the word ‘own’, in ‘to each their own’, is a quasi-indexical used in conjunction with indexicals such as ‘here’, ‘now’, and ‘we’. Focusing on the European Union, I will argue that the quasi-indexicality of the principle of justice is by no means fortuitous: not only does distributive justice necessarily involve a first-person plural perspective—the invocation of a ‘we’ on whose behalf rights and resources are distributed—but this ‘we’ is necessarily a collective that emplaces itself, positing itself as an inside over against an outside, and that ‘temporalizes’ itself, by articulating a past, present, and future as the temporal modes of what it claims to be its own history. To highlight this feature of distributive justice, I will refer to a political community as a nomos. Yet I will also be concerned to show that the spatial and temporal conditions governing the emergence of a polity also call forth what I will call political ‘counter-indexicals’, which undercut the legal actualizations of ‘to each their own place’ and ‘to each their own time’, such that distributive acts never simply coincide with distributive justice. In effect, the use of political indexicals when European authorities exercise the EU's incipient jus includendi et excludendi is only possible by representing a first ‘we-here-now’ that has no referent. Precisely because the EU must invoke a Europe and a world that are not in empirical space and time, and in this sense anomos, to be able to emplace itself as a nomos, the relation between distributive justice and an alleged right to inclusion and exclusion is both possible and irreducibly problematic.
2 A RIGHT TO IMMIGRATION?
Theories of distributive justice that defend the right to the inclusion and exclusion modern states claim for themselves, have come under attack in the light of the humiliation and suffering associated with cross-country migration in our times. Taking issue with Michael Walzer's view that bounded political communities are the proper locus of distributive justice, Joseph Carens has mounted an impassioned defense of a right to immigration. ‘Borders’, in his view, ‘should generally be open and people should normally be free to leave their country of origin and settle in another, subject only to the sorts of constraints that bind current citizens in their new country’.Footnote1
Carens mounts three distinct but related challenges to the jus includendi et excludendi states claim for themselves. The first draws on Nozick's theory of property rights. To the extent that the right to inclusion and exclusion is justified by the claim that ‘It's our country’, this justification seems to appeal to collective or national property rights. But, Carens notes, Nozick's theory is built around the protection of individual property rights. Carens draws the implications of this insight for immigration: insofar as ‘the land of a nation is not the collective property of its citizens’, ‘it follows that the control that the state can legitimately exercise over that land is limited to the enforcement of the rights of individual owners’.Footnote2 The enforcement of these rights does not entail the right to exclude aliens from entering the state's territory. The second challenge pits Rawls against Rawls. The central concern of Rawls is to identify the principles that should guide the distribution of rights, duties, and social advantages, or as he puts it, ‘certain distributive principles for the basic structure of society’.Footnote3 In this sense, Rawls’ theory of justice attempts to respond to the question raised by Ulpian's maxim: what is to be attributed to individuals as their own? Although Rawls’ theory of justice presupposes that polities are closed social systems,Footnote4 Carens argues that Rawls’ conception of justice is incompatible with its limitation to a bounded community. If justice rests on the intuition that all human beings should be treated as free and equal persons, then citizenship is conceptually and normatively subordinate to moral personhood. Since it depends on contingent features such as birthplace and parenthood, citizenship is ‘arbitrary from a moral point of view’.Footnote5 Accordingly, citizens can in principle claim no privileged position vis-à-vis aliens, even though this doesn't necessarily exclude the possibility of restricting immigration. The third challenge is utilitarian. Even though there are deep disagreements among utilitarians as to how utility should be defined, they all link utility maximization to moral equality, such that ‘everyone is to count for one and no one for more than one when utility is calculated’.Footnote6 As with Rawls, the upshot of this utilitarian line of thinking is that, although immigration can be restricted under certain conditions, citizens can lay claim to no special privilege with respect to aliens.
These three arguments in favor of a right to migration are united, as Carens correctly notes, in the priority they assign to the individual with respect to the community. Moral personhood, rather than the citizen/alien distinction, is, he argues, fundamental to a theory of distributive justice. ‘Our commitment to civic equality is derived from our convictions about moral equality, not vice versa’.Footnote7 Closer scrutiny shows, however, that each of the three challenges he mounts against a right to inclusion and exclusion actually presupposes a bounded community and the citizen/alien distinction as the basis for distributive justice.
Consider, first, his reconstruction of Nozick's theory of property rights. Although the claim ‘It's our country’ entails a collective or national property right, this right cannot be self-consistently justified, Carens holds, because its exercise would undermine the individual rights from which it is derived in the first place. The most direct way of questioning this approach is to note that, conceptually speaking, individual property rights presuppose a bounded political community, not vice versa. Nozick's move to postulate individual property rights in the state of nature, which are subsequently brought under the protection of the state, merely retrojects into an imaginary past what is the outcome of distribution within the state itself. Consequently, the famous opening dictum of Anarchy, State, and Utopia—‘Individuals have rights’Footnote8—must give way to another dictum—rights are allotted to individuals—thereby reintroducing the problem of distributive justice as distilled in Ulpian's formula, suum cuique tribuere. This insight gives the nay to Nozick's methodological individualism, according to which the first person plural perspective is merely an aggregation of—and thus reducible to—a manifold of first person singular perspectives.Footnote9 Laying claim to property rights from a first person singular perspective presupposes a first person plural perspective—a ‘We’ that lays claim, as a whole, to a territory, such that property rights in part or all of that bounded region can be created and allotted to individuals. Moreover, this collective claim is not primarily a legal claim, in the sense of a collective or national ‘property’ right, for it is a claim that conditions the possibility of creating property rights, whether individual or collective, in the land. As I will explain shortly, the collective claim to an ‘own’ territory has a reflexive structure. Any attempt, then, to justify a right to immigration by recourse to the alleged priority of individual property rights ends up by quietly reintroducing borders—hence the citizen/alien distinction—as constitutive elements of a theory of distributive justice.
Carens’ critical reconstruction of Rawl's theory of justice fares no better. Freedom, according to Rawls, may be limited by ‘the common interest in public order and security’.Footnote10 Although Rawls discusses this limitation with respect to liberty of conscience, Carens acknowledges that it also applies to immigration in the event that unrestricted immigration leads to the collapse of order. If all individuals—both citizens and aliens—would be worse off as a result of unbridled immigration, those in the original condition would agree to curb it, even if, retrospectively, one were an alien whose right to immigration had been restricted. This reasoning, however well intentioned, does not hold water. When applied to immigration, the concept of public order both presupposes and aims to secure the distinction between citizen and alien. It presupposes this distinction, because the government seeks to protect the interest shared by the members of the community; it aims to secure this distinction because public order becomes an issue when immigration threatens to bring about the collapse of the order in which citizens, as members of the community, have a preferential stake. Rawls can claim that the invocation of the public order limitation is consistent with the original position precisely because he has assumed that the closure of a community is instrumental to a common interest. In the absence of a closure, the very notion of a threat to commonality, hence to public order, loses all meaning. Despite its apparently radical character, Carens’ argument for ‘(relatively) open borders’ actually gets us no further than the status quo concerning immigration.Footnote11 For his qualification of borders as relatively open betrays a fundamental asymmetry between the positions inside and outside the borders of a polity: authorities within determine whether and when the borders are opened to immigrants without. By accepting that public order and security may curb immigration, Carens effectively recognizes that the right to inclusion and exclusion and the citizen/alien distinction enjoy priority in a theory of distributive justice.
I can be very brief with Carens’ utilitarian challenge. If, he argues, from a moral point of view everyone counts as one and no more than one, then the borders of a political community, and the concomitant distinction between citizens and aliens, can be factored out from the calculus of utility on the basis of which goods are distributed among individuals. The blind spot of this argument resides in the tribuere of suum cuique tribuere. Indeed, Ulpian's formulation catches a feature that remains more or less invisible in conventional formulations of the principle of justice, such as ‘treat like cases equally’. Rights have to be attributed to individuals by an authority, who acts on behalf of a collective. Such, precisely, is the gist of Hobbes’ insight about the internal connection between law and distributive justice: ‘take away the civil law, and no man knows what is his own, and what another man's’.Footnote12 This does not exclude the possibility of allowing an individual to immigrate and become a member of the community; but it does entail, first, that justice is actualized through acts that attribute to each their own, and, second, that such acts take place from the first person plural perspective of a bounded political community. The equality of a utilitarian calculus with a view to distributing to each their own presupposes political inequality between citizens and aliens. In other words, the utilitarian calculus can only begin when the most important distributive act—the distribution of membership—has already taken place.
In short, each of Carens’ three challenges to the jus includendi et excludendi that states claim for themselves fails, and each fails for the same reason: by taking methodological individualism as their point of departure, they presuppose a symmetrical relation between individuals, thereby losing sight of the asymmetry between inside and outside. To suspend this asymmetry is to suspend borders and, consequently, the condition in the absence of which immigration (and emigration) and a case for open borders is meaningless.
Accordingly, the influential theoretical account that is the target of Carens’ critique survives unscathed. Walzer can adduce excellent reasons to continue asserting that ‘[t]he idea of distributive justice presupposes a bounded world within which distributions take place: a group of people committed to dividing, exchanging and sharing social goods, first of all among themselves’.Footnote13 The stark conclusion that Walzer derives from this premise remains equally unperturbed: ‘no one on the outside has a right to be inside’.Footnote14 A critique of the right to inclusion and exclusion that bypasses the problem of the nature and genesis of borders, summoning authorities to endorse the unmediated moralization of immigration policy, forfeits ab initio all critical leverage in politics and law. So, instead of simply trading in a right to inclusion and exclusion for a right to immigration, it behooves us to first look more closely at borders, that is, at their structure and their genesis. As I will argue in the forthcoming sections, the political use of indexicals not only sheds new light on borders, but also offers new critical perspectives for an understanding of the relation between immigration and distributive justice.
3 SPACE AND POLITICAL INDEXICALITY
So, let us begin afresh by scrutinizing Walzer's main claim: ‘[t]he primary good that we distribute to one another is membership in some human community. And what we do with regard to membership structures all our other distributive choices …’.Footnote15 This claim builds on and radicalizes a well-known passage in the Leviathan concerning the relation between law and justice. Evoking Ulpian's famous formulation of the principle of justice, Hobbes notes the following:
And this they well knew of old, who called that Nóµoς, that is to say, distribution, which we call law; and defined justice, by distributing to every man his own. In this distribution, the first law, is for division of the land itself …Footnote16
An initial hint can be found in the principle of justice, ‘to each their own’, to which Hobbes alludes in the foregoing citation. In effect, the word ‘own’ functions as a quasi-indexical in this phrase, as it does in the claim ‘It's our (own) country’. As such, the word ‘own’ denotes something that is speaker-relative. This feature links it to indexicals in general. ‘To know the referent of “I”, “now”, “here”, and “you”, we must know who utters the word and when, where, and to whom he utters it’.Footnote17 Although the referent of ‘own’ in ‘to each their own’ is an individual, the legal speech acts that distribute to each their own are also indexical in that they are posited from the first person plural perspective. Whereas Carens’ methodological individualism collapses We-talk into I-talk, Walzer and Hobbes correctly resist this reductive strategy: distributive justice is only possible when ‘we come together to share, divide, and exchange’, that is, when ‘we’ denotes a unity in (distributive) action.Footnote18 On this reading, suum cuique tribuere presupposes the first person plural perspective of a collective agent that distributes rights and resources, preferentially among its members, who, as such, have a common interest in those distributive acts.Footnote19
Accordingly, I propose to read Walzer's defense of a notion of bounded justice as an invitation to approach acts of distributive justice in general, and immigration policy in particular, as manifestations of politics in an indexical mode, or if you wish a politics of indexicality, organized around the triad ‘we-here-now’. While political indexicality has received significant attention in the literature, by way of a discussion of the use of the indexical ‘we’, legal responses to boundary crossings by immigrants not only suggest that political indexicality also includes spatial and temporal indexicals, but that integrating space and time into an account of political indexicality requires rethinking the political uses of the indexical ‘we’.
In this vein of thinking, I would like to suggest that by invoking a ‘we’ in whose name rights and resources are distributed, legal speech acts also invoke an indexical organization of space: at a minimum, they presuppose borders which distribute things and persons according to the here/there distinction. This point may seem trivial, but it has an implication of great consequence to our inquiry. In effect, an indexical ordering of space, that is, an organization of space from the first person plural perspective, is irreducible to a boundless, three-dimensional extension ‘in’ which any and all legal orders are located. This scientific conception of space, which is operative in all sorts of ways in modern legal theories, is motivated precisely by the desire to purify space of any relation to subjectivity, whether individual or collective.Footnote20 How, then, is space structured when relative to a collective subject? Here are its main features:
To begin with, a right, even a spurious right, to inclusion and exclusion would be unintelligible unless borders are what distinguish—in the twofold sense of separating and uniting—inside and outside. To put it another way, border crossings do not simply involve movements from one point to another on a grid; they involve a passage whereby someone or something enters a region or leaves it to go elsewhere. The political use of indexicals such as ‘here’ and ‘there’ arises with the introduction of the distinction between inside and outside.
The notion of a jus includendi et excludendi presupposes that border crossings are normative no less than physical events: a passage is qualified as legal or illegal. This is only possible because borders themselves have a structure that is both physical and normative. Their normative aspect concerns a claim about the common interest of a polity. The second aspect of borders is physical, insofar as, claiming to institutionalize the common interest of the members of a polity, a legal order partitions space by indicating where behavior ought or ought not to take place, in the twofold sense of this expression. A space of action is a legal space of action to the extent that it reveals places as ought-places. Accordingly, Ulpian's dictum has a properly spatial significance: suum cuique is also always suum cuique locum. Importantly, this dictum is by no means limited to immigration: the couplet legal/illegal immigration is only a species of the binary organization of legal space, in which persons and things appear as in-place or misplaced. Only by abstraction can the normative and physical aspects of borders be distinguished, which is why borders are variable even when their physical positioning does not shift an inch, as when the legal definition of family is tightened or relaxed in view of determining the conditions of family reunion.
The distinction between inside and outside arises in the same process by which a polity identifies certain interests as worthy of legal protection—as its own interests—and discards others as legally irrelevant; in fact, an ‘inside’ and an ‘own’ place are the two sides of the same coin. Hence, by closing itself off as an inside with respect to an outside, a community posits a territory as its own, and vice versa. An inside and an own territory are mutually implicative; together, they express the specific kind of unity a polity claims for its territory.
A certain ambiguity in the notion of an ‘own’ space highlights the fact that there are two different forms of inside and outside. On the one hand, the distinction between the inside and the outside of a political community is correlative to the contrast between a community's own territory and foreign territories. On the other, the divide between an inside and an outside is correlative to the contrast between an own place and a strange place. These two manifestations of the inside/outside divide are mutually irreducible: the place from which a foreigner comes, when entering a polity, need not be strange; conversely, a strange place need not be foreign: it can irrupt from within what a political community calls its own place.
The correlation between an inside and an own place explains why, Nozick's assumption notwithstanding, a territory is never merely a ‘geographical area’.Footnote21 Beyond the empirical fact that not all territories are geographically contiguous, the essential point is that the closure of a polity involves a qualitative differentiation of space: the inside is preferred to the outside. The claim to a common place entails ‘a preference in the difference’.Footnote22 So, trivially but again decisively, the very idea of a jus includendi et excludendi presupposes that here and there, inside and outside, are not simply interchangeable locations, and that it is not indifferent whether one enters or leaves a political community.
Finally, a space of collective action entails a reflexive relation: a polity relates to itself in relating to a territory. This reflexive relation explains the notion of ownership involved in the paradigmatic claim of political indexicality, ‘It's our country’. It is essential to bear in mind that this claim is not juridical, that is to say, it does not imply legal concepts such as dominium or imperium. While a lot of energy has been spent on showing the difficulties in viewing the relation of a collective to a territory as a property relation, such efforts miss the point: at stake is a manifestation of political reflexivity, not of legal ownership.Footnote23 On the one hand, the members of a collective relate to themselves as an agent that, claiming to act as a whole, posits the boundaries of a territory, both those that close it off from other territories and those that demarcate places within it, both public and private. On the other, the members of a collective relate to themselves as the community that has a preferential stake in a territory, that is, the set of persons who are interested parties therein. Together, these two collective self-relations define what is meant by the collective ‘ownership’ of a territory, that is to say, its subject-relatedness.
In short, the possibility of claiming a right to inclusion and exclusion depends on the fact that suum cuique tribuere implies a subject-relative form of space. This holds for the Greek polis than for a modern nation state; it also applies no less to the post-national polity we call the European Union. This is not to deny, of course, that neither the Greek polis nor feudal communities had anything like the regular immigration controls that emerged in the modern Western world.Footnote24 But the claim to a jus includendi et excludendi, whatever its contingent historical configuration, is only intelligible from the perspective of a subject-relative form of space, hence presupposes the possibility of referring to a ‘we’ and a ‘here’.
This insight sheds new light on the ancient notion of nomos, which Hobbes translates as distribution or law. According to Cornford, this meaning covers up an earlier use of the term nomos, namely ‘a range or province, within which defined powers may be legitimately exercised’.Footnote25 And Arendt, drawing on Cornford, notes that we have become so accustomed to ‘understanding legislation (Gesetz) and the law, in line with the Ten Commandments, as orders and prohibitions, the only meaning of which is to demand obedience, that we easily allow the originally spatial character of legislation to become forgotten’.Footnote26 It is a moot point, for the purpose of this article, whether this etymology is spurious or well founded; what is of practical and theoretical importance, however, is coining a label for the fact that a subject-relative region is not merely a condition for, but also an element of the law. In the next sections, I will call this strong reading of law a nomos.
4 TAKING, DISTRIBUTING, EXPLOITING
Let me summarize the findings of the foregoing section: political indexicality suggests that if legal speech acts necessarily invoke a ‘we’ in whose name goods are distributed, they also necessarily invoke it as an emplaced collective, a collective that delimits itself as an inside over against an outside: a ‘we-here’. In this, I concur with Walzer. But the implication of the subject-relatedness of nomos is that borders are themselves the outcome of a distributive act. In other words, inside and outside emerge through a collective self-closure. How, then, is this act to be interpreted in the framework of a theory of distributive justice?
In a fateful move, Walzer relegates the self-closure of political community to a ‘historical’ issue beyond the pale of a theory of distributive justice:
We assume an established group and a fixed population, and so we miss the first and most important question: How is that group constituted? I don't mean, How was it constituted? I am concerned here not with the historical origins of the different groups, but with the decisions they make in the present about their present and future populations.Footnote27
This insight is no mere speculative ploy of a notorious thinker bent on legitimating European conquest; Schmitt's discussion of nomos goes to the heart of the inaugural gesture that gave rise to the European Community. Indeed, the Preamble to the Treaty of Rome states that the parties to the Treaty are ‘determined to lay the foundations of an ever closer union among the peoples of Europe’. Crucially, while the six founding Member States claimed to represent European unity, they had received no legal mandate to this effect from all possibly affected parties, whether states or individuals. The founding states are the self-proclaimed representatives of European unity. By taking the initiative of founding the European Community, the signatories seize Europe, disclosing it as a common market. The objective of ‘establish[ing] progressively an area of freedom, security and justice’ in Europe (Article 61, EC-Treaty) is only intelligible as the continuation and realization of an act that takes the land. Whence the threefold sequence of meanings of nomos alluded to by Schmitt: ‘freedom’, ‘security’, and ‘justice’, in the sense of rights to be enjoyed by citizens and legally resident third country nationals (exploitation), presupposes an act of allotting rights and obligations (distribution), which, in turn, presupposes a land-appropriation (taking). A discrete but potent circularity governs European immigration policy: exclusion from (and inclusion in) the European Union is held to be justified because this bounded region is the own place of European citizens; yet, to begin with, exclusion (and its attendant inclusion) gives rise to European citizens and their own place.
Notice, moreover, that land-appropriation works externally as much as it does internally: the EU and its Member States not only expect that individuals inside the Union but also those outside it recognize their right to inclusion and exclusion. This claim is only possible if, in a sense, those who are excluded are also included. The European polity closes itself off as a polity by including itself and what it excludes in an encompassing spatial unity. Putting this point in terms of political indexicality, the act that creates ‘here’ and ‘there’ accommodates both within a single region. This is a specific instance of the double function of borders, which cannot separate the Union from the rest of the world without also uniting these two regions into a whole: the world is disclosed as a market, and its denizens as economic actors who submit to the rules of market exchange. So, the founding members of the European polity do not only claim to represent European unity; they also claim to represent world unity. But, no less than is the case for Europe, the founding Member States had received no prior legal mandate to this effect from all possibly affected parties in the world, whether states or individuals. The founding states of the European polity act as the self-proclaimed representatives of a world market. The land-appropriation that gives rise to the European Union is coevally an appropriation of the world, a European nomos coevally a nomos of the earth.
Here, then, is the pressing question that arises with respect to a jus includendi et excludendi: if a land-appropriation inaugurates the distinction between inside and outside, how can such an appropriation countenance a right to inclusion and exclusion? Walzer excises this question from a theory of distributive justice; Schmitt, having stared it in the face, belatedly attempts to neutralize it by asserting that
[t]he land-appropriation is the ultimate legal title for all further divisions and distributions, and therewith for all further production. It is the radical title, according to John Locke's expression …Footnote30
Schmitt whitewashes this question because, by definition, there is no title that precedes a seizure. Is there any alternative to the immediate moralization of immigration policy or its collapse into an exercise in cynicism?
5 TIME AND POLITICAL INDEXICALITY
An alternative, if there is one, must begin by considering an aspect of distributive acts that remained heretofore beyond the purview of our discussion: time. Walzer implicitly broaches this issue in the passage scrutinized in the foregoing section:
How is [a] group constituted? I don't mean, How was it constituted? I am concerned here not with the historical origins of the different groups but with the decisions they make in the present [“now”, H.L.] about their present and future populations.Footnote31
Accordingly, distributive speech acts imply an indexical organization of time, in which the discursive ‘now’ of the apposite legal speech act is linked to the past and future of a polity. This insight loses its apparent triviality if we bear in mind the distinction Émile Benveniste draws between calendar and lived time. In the same way that a subject-relative form of space is irreducible to a boundless three-dimensional extension, so also a subject-relative form of time is irreducible to the uniform and continuous sequence of measurable units of time made available by calendars.
As a day is identical to another day, nothing says about this or that calendar day, taken in itself, whether it is past, present, or future. It cannot be placed under one of these three categories other than by who lives time.Footnote33
The unity of calendar time manifests itself as the inexorable sequence of a before and an after; by contrast, past, present, and future can only appear as a unity to the extent that they are the temporal modes of an ‘I’ or a ‘we’, that is, insofar as they are relative to a subject. The discursive ‘now’ of distributive speech acts cannot be substituted for a date without forfeiting an explanation of the temporality proper to those acts. Indeed, legal acts that distribute places, either authorizing or denying entry to immigrants, are only intelligible as acts in which a collective posits itself as a historical unity, that is, as the unity of a past, a present, and a future. In this sense, the indexicality of suum cuique tribuere is also temporal: ‘to each their own place’ goes hand in hand with ‘to each their own time’. Suum cuique locum entails suum cuique tempus, and vice versa.
How, then, is this subject-relative form of temporality at work in the distribution of persons and places? Consider once again the cited passage of the Preamble to the Treaty of Rome: the parties to the Treaty are ‘determined to lay the foundations of an ever closer union among the peoples of Europe’. Although it refers to a plurality of peoples, the passage also claims that there already was a union at the time of laying its legal foundation in the Treaty of Rome, a community of peoples that, by virtue of their shared interests, could go further together, engaging in a process of legal and economic integration. The wording of the passage implies that the Treaty of Rome builds on a prior closure, providing this community with an institutional setting and specific goals. Its jus includendi et excludendi, or so the European Union holds, emanates from an original title, an aboriginal cut lost at the dawn of history. Significantly, by evoking a primal cut that created two places—Europe and the rest of the world—the Preamble not only assures the EU of a place of its own, but also of a place within a single distribution of places. The fundamental distinction between those who are in-legal-place in the European Union, and those who trespass its borders, is already prepared in the Treaty of Rome, which only gives legal form, so it claims, to a cut that established at the dawn of history who belongs where: suum cuique locum.
This insight modifies Schmitt's analysis of an original Landnahme in a decisive way: although the Treaties postulate Europe as the spatio-temporal origin of the European Union, the Union has no direct access to its origin. Yet more forcefully, Europe can function as the origin of the Union only if it is not in empirical space and time. More precisely, legal authorities have no direct access to the original scission that gives rise to Europe, on the one hand, and the rest of the world, on the other. Instead, Europe only appears indirectly, by way of its representations: the internal market and the Area of Freedom, Security, and Freedom. Paradoxically, and radicalizing Schmitt's account of nomos, a community appropriates the land, separating inside from outside, by reappropriating it, by representing an original separation of inside and outside to which it has no direct access. Europe, which the European Union claims to represent, is, strictly speaking, nowhere and ‘nowhen’. Accordingly, the speech acts that exercise the European Union's jus includendi et excludendi designate a ‘here’ and a ‘now’ by way of a detour through a first place and time that never could have been—and never can become—a ‘here’ and a ‘now’. To put it as sharply as possible, the use of political indexicals is only possible by invoking the utterance of a first ‘we-here-now’ that has no referent.
Accordingly, Walzer's account of the distribution of membership is reductive to the extent that it takes for granted that the triad ‘we-here-now’ has an ultimate referent that guarantees the justice of distributive acts. Because the possibility of designating a ‘we’, the European Union, located ‘here’ in Europe, and enacting immigration policy ‘now’, in the light of our common past and with a view to ensuring our shared future, presupposes the invocation of a first ‘we-here-now’ that has no referent, the indexicals used in its legal speech acts are ‘essentially questionable’.Footnote34 More generally, the questionableness of indexicals is radical because the self-closure of a polity that spawns the distinction between ‘here’ and ‘there’ also spawns an elsewhere, a place that is neither here nor there, yet which ought to have a place in the distribution of places made available by a legal order. Indexical claims are questionable because the closure of a polity into an inside spawns an outside in the strong sense of strange places that announce themselves in acts that transgress spatial boundaries, whether these are the ‘external’ borders of a polity or boundaries within it. In the same way, if every distributive speech act claims to take place in the present of a collective history, the border crossings it must qualify as legal or illegal confront a polity with the possibility of an elsewhen, a ‘now’ that does not fit into the unity of past, present, and future posited in that speech act. Finally, the questionability of indexicals manifests itself in that border crossings by aliens have the potential to contest the fundamental distinction between member and non-member, and therewith the referent of ‘we, the members of this collective’.
6 IMMIGRATION AND A POLITICS OF INDEXICALITY
These considerations have two important implications for the problem of distributive justice, as encapsulated in the notion suum cuique tribure. The first concerns the subject-relative character of distributive justice. I have argued that the quasi-indexicality of the principle of justice is by no means fortuitous: not only does distributive justice necessarily involve a first-person plural perspective—the invocation of a ‘we’ on whose behalf rights and resources are distributed—but this ‘we’ is also necessarily a collective that emplaces itself, positing itself as an inside over against an outside, and that ‘temporalizes’ itself, by articulating a past, present, and future as the temporal modes of what it claims to be its own history. Now, the whole problem of distributive justice turns on its subject-relative character: given the conditions that govern the genesis of a political community and its legal order, can ‘to each their own’ by anything more than the expression of subjectivity in the sense of arbitrariness? In particular, if the EU and the distinctions it draws between member and non-member, and inside and outside, arise through what is at least in some measure a seizure, a Landnahme, does not sum cuique tribuere collapse into the acts of officials whom, representing a ‘we’, ‘here’, ‘now’ that have no first referent, arbitrarily distribute membership and legal place? Can, under these circumstances, the subject-relativity of suum cuique tribuere accommodate a form of objectivity? In other words, does the foregoing analysis of political indexicality intimate a critical instance, in the absence of which distributive justice would collapse into the sheer positivity of positive law?
Looking at the EU, it seems to me that this critical instance is none other than Europe, which the European Union claims to represent, yet which is, strictly speaking, nowhere and ‘nowhen’. I am reminded here of Claude Lefort's well-known insight, according to which ‘power makes a gesture towards an outside (un dehors), whence [society] defines itself. Whatever its form, [political power] always refers to the same enigma: that of an internal-external articulation … of a movement of the externalization of society that goes hand in hand with its internalization.’Footnote35
The Europe that is not a referent of legal speech acts, i.e. which is not and cannot be in empirical space and time, exemplifies this ‘outside’ to which Lefort refers as being constitutive for political communities, and which makes it possible for political indexicals to refer to a European ‘we’, ‘here’, and ‘now’. I would argue that while the invocation of Europe renders possible that the EU is a nomos, in the sense noted above, this non-referential Europe is itself anomos. The invocation of an anomic Europe not only allows the EU to ‘define itself’ as ‘the same’, as Lefort puts it, but also, and crucially, as different. The difference I have in mind is not merely difference with respect to the EU's others; more radically, it is a difference that is nested within the EU itself, such that the invocation of Europe not only allows the Union to identify itself as the same but also as different to itself. This self-difference—this non-identity in all claims to identity—manifests itself, amongst others, when European citizens, invoking values they deem European, engage in illegal acts in view of contesting measures taken by legal authorities to remove illegal immigrants. Such acts aim to reveal European immigration policy as un-European and to intimate that Europe can be the subject of another legal order—a European polity that is not the referent of the ‘we’, ‘here’, ‘now’ uttered in legal speech acts. Yet more forcefully, to the extent that the European Union can be contested by its members in the name of another collective distribution of places and another interpretation of what defines Europe as a temporal unity, ‘we-here-now’ is also, and from the very beginning, ‘they-elsewhere-elsewhen’. Self-inclusion is also always, to a lesser or greater extent, a self-exclusion, and the exclusion of the Other, to a lesser or greater extent, her/his inclusion. In a parallel fashion, borders don't simply include and exclude; they include by excluding, and they exclude by including.Footnote36 As a result, the conditions that govern the political use of indexicals also spawn the political use of counter-indexicals, i.e. the use of the indexicals ‘we’, ‘here’, and ‘now’, in a way which undercuts the referents of the distributive claims raised by legal authorities: ‘to each their own place’ and ‘to each their own time’. Succinctly, counter-indexicals ensure that distributive acts never simply coincide with distributive justice.
This point is crucial because it explains at least part of the reason why the subject-relativity of distributive acts does not merely collapse into arbitrariness, but also accommodates a measure of objectivity. On the one hand, distributive acts are subject-relative, in that the invocation of an anomy is indispensable for a collective to institute itself as a nomos, in Hobbes’ sense of the expression: ‘And this they well knew of old, who called that Nóµoς, that is to say, distribution, which we call law; and defined justice, by distributing to every man his own’.Footnote37 Returning to Lefort, an anomy makes it possible for a collective to ‘define itself’ (emphasis added) by way of distributive acts that assign to each their own. On the other, this anomy ensures that collectives are never simply ‘we-here-now’, but also ‘they-elsewhere-elsewhen’. Accordingly, that anomies ensure that collectives are never merely identical to themselves, and that anomies function as the critical instance that impedes distributive justice from collapsing into the sheer positivity of distributive acts, are the two sides of the same coin.
These considerations explain, secondly, why the distributive issues raised by border crossings by aliens call forth a politics of indexicality. As no polity has direct access to the original nomos whence it derives its claim to a jus includendi et excludendi, each border crossing by aliens inevitably confronts a polity with the question concerning its unity in space and time, hence its unity as a collective. There is, Schmitt notwithstanding, no clear-cut distinction between an initial act that separates ‘here’ from ‘there’, and subsequent acts that enforce this distinction. If the act that constitutes the borders of a polity already moves to enforce what are held to be the community's prior borders, all acts of enforcement constitute these borders anew, refounding the polity as a spatial unity—a nomos—even when they confirm this unity. Border crossings call forth a politics of indexicality because each legal act that qualifies such crossings not only secures prior borders but is also, and unavoidably, a decision about (i) what counts as ‘here’ and ‘there’, (ii) what counts as the historical unity in which the authorization or denial ‘now’ of a border crossing by an immigrant draws its meaning, and (iii) who counts as a member, whether actual or potential, of the ‘we’. Accordingly, legal speech acts that assign to each their own are not only context-dependent with respect to place, time, and subject; they are also always, to a lesser or greater extent, context-productive with regard thereto.Footnote38
7 THE ANOMOS OF THE EARTH
In terms of European immigration policy, the questionable character of indexical claims manifests itself most starkly in the pervasive distinction between de jure and de facto immigrants. A prominent scholar on asylum law voices what has become a widely accepted assumption in the debate on European immigration policy, when he notes that
[a]lthough the EU Member States have unanimously denied that they are countries of immigration, by and large all have eventually become de facto immigration countries. The flow of asylum applications has become a major source of de facto immigration.Footnote39
Accordingly, it would be reductive to assert, as Hailbronner does, that de facto immigration only poses a derivative problem for the European Union because of the difficulty in enforcing the distinction between legal and illegal border crossings. De facto immigration poses a radical problem because it calls into question what counts as inside and outside, and who counts as member and non-member. In short, de facto immigration contests the right claimed by the Union and its Member States to determine who and what belongs within and without the Union, which is to say that it presages other nomoi of the earth. Notice the inverted symmetry: in the same way that there is a de facto core to the EU's de jure claim concerning its borders, border crossings by de facto immigrants also intimate a de jure claim to another Europe in another world, hence another way of apportioning to each their own place: suum cuique locum. This, concretely, is the manner in which something like a ‘right to immigration’ announces itself at the borders of the European Union.
The challenge posed by de facto immigration resonates in what all commentators take to be the major constitutional tension governing the Area of Freedom, Security and Justice, namely the tension between effectiveness and accountability.Footnote42 On the one hand, authorities must be granted the legal instruments to effectively enforce the borders of the European Union; on the other, these authorities must be rendered accountable for their enforcement activities. While this tension can no doubt be negotiated, there is nonetheless a point at which de facto land-appropriation catches up with a political community, such that effectiveness comes to mean that what is identified as de facto immigration is controlled with de facto mechanisms, that is to say, by de facto acts of border control. This, concretely, is what Schmitt's state of exception means for immigration. Such is the unvarnished meaning of the public order and security limitation that Rawls and Carens confidently bring into the fold of distributive justice. At this extreme political juncture, the right to inclusion and exclusion a polity claims for itself is suspended in view of recreating by de facto means the conditions of normality under which this right can be exercised.
While the conditions governing the genesis of political community introduce an irreducible indeterminacy concerning the disjunction between a de facto and a de jure closure, the possibility of meaningfully drawing this distinction resides in what makes any definitive disjunction between these terms impossible in the first place: the representational paradox governing land-appropriation. If, as Schmitt argues, there is a spatial unity that is immediately present at the foundation of a polity, then, indeed, legal authorities could only be held accountable for enforcing the distinction between inside and outside, legally if possible, effectively if necessary. But, as we have seen, Europe is anomos: there is no referent for the first utterance of ‘we-here-now’ invoked in legal acts of inclusion and exclusion. Because the initial taking cannot but retake an original unity that eludes the EU, the distinctions between inside and outside, and member and non-member, become the primary subject of accountability by legal authorities.
But accountability to whom? The whole thrust of Schmitt's and (implicitly) Walzer's analysis is that the Union, as every polity, is only accountable to those who, by virtue of being included in the light of the original land-appropriation, have an interest in the European nomos. In a sense, their point is indisputable: suum cuique tribuere requires the use of political indexicals, including ‘we’, ‘here’, and ‘now’. But who has an interest in the European nomos, by virtue of being included therein?
I noted earlier that the European Union not only seizes Europe, disclosing it as an internal market, but also the world, which it discloses as a world market, and its denizens as economic actors that submit to the rules of a market economy. In other words, the Treaty of Rome includes what it excludes in a more comprehensive spatial unity, the world market. In the act by which the founding states proclaim themselves the representatives of European unity, they also proclaim themselves—and the European Union—as representatives of a world unity. To this extent, the European Union acknowledges, albeit implicitly, that by including itself in a nomos of the earth, the rest of the world has an interest in the European nomos. The de facto immigrant, that is to say, the so-called economic migrant who is subject to the vagaries of global market forces, embodies this interest. I submit that this inclusive exclusiveness, in the absence of which the self-closure of the European Union as we know it today could not have taken place, is a condition of possibility of a politics of indexicality that institutionalizes a form of accountability of European authorities to those who stand at the Union's borders. It is no more than a condition of possibility thereof because, although the EU's inclusive exclusiveness allows for a form of political accountability to those who would enter the European polity, accepting this inclusive exclusiveness as the sufficient condition of accountability to prospective immigrants would amount to consolidating the nomos of the earth in which the EU includes itself—a world market. In a word, this form of accountability would place the seizure of Europe and the world as a market beyond the bounds of political accountability. What would be required, then, is that the EU both recognizes the interest in the European nomos of those whom it deems economic immigrants and allows for the contestation of this putative interest as the interest of whom participates in a world market. In short, political accountability would have to indirectly acknowledge that Europe and the world are a-nomos. On this view, distributive justice—suum cuique tribuere—requires exposing the EU's seizure of Europe and the world to seizure by immigrants.
Acknowledgements
This paper was funded by a research grant of the Netherlands Organisation for Scientific Research (NWO). It revises and expands on views defended in: Hans Lindahl (2009) To each their own place? Immigration, justice, and political reflexivity, in: J.C. Velasco & J.-C. Merle (Eds), Proceedings of the research network on global justice. Dordrecht, Kluwer Academic Publishers (Forthcoming).
Notes
1. Joseph H. Carens (1987) Aliens and citizens: the case for open borders, The Review of Politics, 49, 251–273.
2. Joseph H. Carens (1987, p. 254).
3. John Rawls (1971) A theory of justice. Cambridge, MA, The Belknap Press, 10.
4. See Rawls (1971, p.8); John Rawls (1993) Political liberalism. New York, Columbia University Press, 40.
5. Joseph H. Carens (1987) Aliens and citizens: the case for open borders, The Review of Politics, 49, 257.
6. Joseph H. Carens (1987, p. 263).
7. Joseph H. Carens (1987, p. 256–257).
8. Robert Nozick (1974) Anarchy, State, and Utopia. Oxford, Basil Blackwell, ix.
9. This is particularly clear in Nozick's critical discussion of distributive justice, where he states that ‘there is no central distribution, no person or group entitled to control all the resources, jointly deciding how they are to be doled out. What each person gets, he gets from others who give to him in exchange for something, or as a gift’. The whole point is that appealing to rights in the framework of exchange relations between individuals presupposes the first person plural perspective of a ‘We’, and the common interest of the members that compose the collective, in the absence of which it would not be possible to establish what resources can be rightfully exchanged and what criteria render that exchange rightful. See Robert Nozick (1974) Anarchy, State, and Utopia. Oxford, Basil Blackwell, 149.
10. John Rawls (1971) A theory of justice. Cambridge, MA, The Belknap Press, 10.
11. Joseph H. Carens (1987) Aliens and citizens: the case for open borders, The Review of Politics, 49, 252.
12. Thomas Hobbes (1962) Leviathan (Molesworth edn.). Aalen, Scientia Verlag, vol. III, 233–234.
13. Michael Walzer (1983) Spheres of justice: a defense of pluralism and equality. New York, Basic Books, 31.
14. Michael Walzer (1983, p. 41).
15. Michael Walzer (1983, p. 31).
16. Thomas Hobbes (1962) Leviathan (Molesworth edn.). Aalen, Scientia Verlag, vol. III, 234 (emphases omitted).
17. Richard M. Gale (1967) Indexical signs, egocentric particulars, and token-reflexive words, in: P. Edwards (Ed.), The encyclopaedia of philosophy. New York, MacMillan, Vol. 4, 151–155.
18. Michael Walzer (1983) Spheres of justice: a defense of pluralism and equality. New York, Basic Books, 3. Walzer does not stand alone in his critique of reductive accounts of collective action. See, among others, Philip Pettit (2001) A theory of freedom. Oxford, Polity Press, 104–124; and John Searle (1995) The construction of social reality. New York, The Free Press, 23–26.
19. For a powerful analysis of the first-person plural perspective, and its different functions in legislative speech acts, see Bert van Roermund (2003) First-person plural legislature: political reflexivity and representation, Philosophical Explorations, 6 (4), 235–252.
20. For an excellent phenomenological analysis of the distinction between lived and scientific space, see Elisabeth Ströker (1987) Investigations in philosophy of space (trans. A. Mickunas). Athens, OH, Ohio University Press. Significantly, however, Ströker does not engage in an analysis of politico-legal space.
21. Robert Nozick (1974) Anarchy, State, and Utopia. Oxford, Basil Blackwell, 16.
22. Bernhard Waldenfels (1999) Vielstimmigkeit der Rede: Studien zur Phänomenologie des Fremden 4. Frankfurt: Suhrkamp, 197.
23. For a critical analysis of Kelsen's discussion and rejection of the view that the relation of a collective to a territory is either a jus in personam or a jus in rem, see my paper: H. Lindahl (2004) Inside and outside the EU's ‘area of freedom, security and justice’: reflexive identity and the unity of legal space, Archiv für Rechts- und Sozialphilosophie, 90 (4), 478–497.
24. See John Torpey (2000) The invention of the passport: surveillance, citizenship and the state. Cambridge, Cambridge University Press.
25. F.M. Cornford (1957) From religion to philosophy: a study in the origins of western speculation. New York, Harper Torchbooks, 30.
26. Hannah Arendt ([1993] 2003) In: Ursula Ludz (Ed.), Was ist Politik? Fragmente aus dem Nachlaß. München, Piper, 122. I engage with Arendt's conception of nomos in my article, H. Lindahl (2006) Give and take: Arendt and the Nomos of political community, Philosophy and Social Criticism 32 (7), 881–901.
27. Michael Walzer (1983) Spheres of justice: a defense of pluralism and equality. New York, Basic Books, 31.
28. Carl Schmitt (2003) The Nomos of the earth in the international law of the Jus Publicum Europaeum (trans. G.L. Ulmen). New York, Telos Press, 42 (trans. altered).
29. Carl Schmitt (1995) Staat, Großraum, Nomos: Arbeiten aus den Jahren 1916–1969. Berlin, Dunker & Humblot, 581.
30. Carl Schmitt (1958) Verfassungsrechtliche Aufsätze aus den Jahren 1924–1954. Berlin, Duncker & Humblot, 493.
31. Michael Walzer (1983) Spheres of justice: a defense of pluralism and equality. New York, Basic Books, 31 (emphases modified).
32. Michael Walzer (1983, p. 32) (emphasis added).
33. Émile Benveniste (1966) Le langage et l'expérience humaine, in: Émile Benveniste et al. (Eds), Problèmes du langage. Paris, Gallimard, 8.
34. This expression alludes to John Perry's notion of ‘essential indexicality’. See John Perry (2000) The problem of the essential indexical, in: J. Perry, The problem of the essential indexical and other essays. Stanford, CSLI Publications, 27–44. I aim to explore the political scope of Perry's notion in a separate paper. The notions of questionability and responsiveness, as features of an ontology of collective selfhood, are discussed in my paper: H. Lindahl (2007) Constituent power and reflexive identity: towards an ontology of collective selfhood, in: M. Loughlin & N. Walker (Eds), The paradox of constitutionalism. Oxford, Oxford University Press, 9–24.
35. Claude Lefort (1986) Democracy and political theory (trans. David Macey). Cambridge, Polity Press, 225.
36. For a full development of this idea see my article: H. Lindahl (2009) In between: immigration, distributive justice and political dialogue, Contemporary Political Theory. Forthcoming.
37. Thomas Hobbes (1962) Leviathan (Molesworth edn.). Aalen, Scientia Verlag, vol. III, 234 (emphases omitted).
38. This account of the paradox of political representation presents significant similarities with Seyla Benhabib's notion of ‘democratic iterations’ as outlined in Seyla Benhabib (2005) The rights of others. Cambridge, Cambridge University Press; and Seyla Benhabib (2007) Another cosmpolitanism. Oxford, Oxford University Press. Yet it differs from her view in that, on my account, the legal acts that qualify border crossings by immigrants as legal or illegal not only include whom they exclude but also exclude whom they include. In short, this paper is part of a broader project that seeks to conceptualize the relation between immigration and distributive justice from a perspective that is neither communitarian nor cosmopolitan. For a critique of and alternative to Benhabib's discussion of these themes, see my forthcoming article, ‘In between: immigration, distributive justice, and political dialogue’.
39. Kay Hailbronner (2004) Asylum law in the context of a European migration policy, in: N. Walker (Ed.), Europe's area of freedom, security and justice. Oxford, Oxford University Press, 42.
40. Council Directive 2001/66/EC of July 20, 2001.
41. Kay Hailbronner (2004) Asylum law in the context of a European migration policy, in: N. Walker (Ed.), Europe's area of freedom, security and justice. Oxford, Oxford University Press, 68.
42. See Neil Walker (2004) In search of the area of freedom, security and justice: a constitutional odyssey. In: N. Walker (Ed.), Europe's area of freedom, security and justice. Oxford, Oxford University Press, 3–37.