The Tyranny of the Enfranchised Majority? The Accountability of States to their Non-Citizen Population

Abstract

The debate between legal constitutionalists and critics of constitutional rights and judicial review is an old and lively one. While the protection of minorities is a pivotal aspect of this debate, the protection of disenfranchised minorities has received little attention. Policy-focused discussion-of the merits of the Human Rights Act in Britain for example-often cites protection of non-citizen migrants, but the philosophical debate does not. Non-citizen residents or 'denizens' therefore provide an interesting test case for the theory of rights as trumps on ordinary representative politics. Are they the ultimate success story of the human rights framework? Or was Michael Walzer correct to describe government of denizens by citizens as a modern form of 'tyranny'? This paper argues that neither liberal rights theorists nor democratic republicans provide a coherent response to the existence of denizens. Liberal rights theorists overstate the extent to which a politically powerless status can secure individual rights, while democratic republicans idealise the political process and wrongly assume that all those affected by laws are eligible for political participation. The paper outlines an alternative model for assessing the accountability of states to their non-citizen population, informed by the republican ideal of non-domination. It identifies gaps in state accountability to denizens-such as where there is inadequate diplomatic protection-and argues that these gaps are particularly troubling if their exit costs of leaving the state are high.

Untitled

“…Some people die in the process of being sent back, and many people die in the process of trying to cross borders. People who are in the country without authorisation are vulnerable to ill-treatment (Benton, 2010). That is the reality.…”

Toward a Critical Social Work Ethics of Immigration, Migration, and Human Rights

“…Some people die in the process of being sent back, and many people die in the process of trying to cross borders. People who are in the country without authorisation are vulnerable to ill-treatment (Benton, 2010). That is the reality.…”

Reflecting on the boundaries of the demos: A virtual deliberative experiment with German citizens

“…Many thinkers in this camp argue this holds in particular for long‐term residents who are permanently subject to laws of an entity they cannot determine (Smith, 2008; Theuns, 2021). Even in liberal democracies which might protect some rights of residents, republican thought sees non‐citizen residents as subject to unjustified domination: whether or not their rights are protected or their wishes taken into account will depend on the benevolence of those others who have the power to vote (Abizadeh, 2012; Benton, 2010). In addition, those who live in a country have what Rubio‐Marín calls ‘deep affectedness’.…”