This essay will be exploring the statement that citizenship on the basis of birthright is morally arbitrary and therefore unjust. A person’s place of birth is morally arbitrary as it cannot be chosen by the person being born, yet in many countries, citizenship is given on the basis of birth in a particular country (jus soli). Citizenship is a requirement to access many basic human rights such as the right to vote or access to social services (Council of Europe, n.d.), and therefore shouldn’t be based upon something that is morally arbitrary. In modern-day circumstances, those who don't have citizenship don't have the same rights and protections as those who are citizens. This exclusionary aspect on the basis of something that is morally arbitrary is unjust, and thus birthright citizenship as a structure is unjust. Citizenship therefore must be adapted if it is to become a fair process and morally just.
This essay will be exploring whether or not birthright citizenship is morally arbitrary, the different types of citizenship to analyse the justness of citizenship in general and the requirements of citizenship that must be fulfilled in order for citizenship to be morally just.
A citizen is defined as a “member of a political community who enjoys the rights and assumes the duties of membership” (Leydet, 2017). In an ever globalising world with enhanced migration, citizenship has become exclusionary acting as a segregator between qualified citizens and resident “aliens” (Kabeer, 2002). Citizenship, specifically the right to a nationality, is a human right. Article 15 of the Universal Declaration of Human Rights (UDHR) states that every human has the right to citizenship and to not to be deprived of nationality (UDHR, 1948).
Citizenship allows governments to operate functionally, to clarify who in their jurisdiction they are responsible for, and to calculate their social provisions based upon this. Countries draw state borders and claim sovereignty, and by doing so in return they are required to provide for their citizens as outlined by the Social Contract Theory, theorized by Thomas Hobbes, which describes the relationship between a state and their jurisdiction where citizens relinquish power in order to maintain a society of peace and order overseen by a ruler, either a monarch or government (Hobbes, 1969). Hobbes theorized that all citizens must obey the state, even if tyrannous, as the maintenance of peace and order is paramount. He theorized that without government, people would live in the “state of nature”, which he saw as violent and chaotic, and thus sacrificing freedoms to be governed is a valid exchange (Hobbes, 1969). This explains why the state, specifically a government and its citizens, is necessary for a functioning society and what gives the state power. Due to this power, Hobbes suggests that states have no responsibility to guarantee human rights or social provisions, but citizens have an obligation to obey the state regardless (Hobbes, 1969). Therefore if citizens stopped consenting to be ruled they wouldn’t be justified to overthrow the state.
John Locke similarly theorized a “state of nature”, however, his conception of this state is one that is much more civilised where all people have natural and inalienable human rights (Locke, 1689). Similar to Hobbes, he theorized that people willingly consented to be ruled to maintain order, yet in contrast with Hobbes, Locke sees this consent as revocable if the state fails to meet the expectations of the citizens i.e. provisions of social services, protection and to be non-tyrannous (Locke, 1689). Therefore, Locke sees citizenship as more of a consensual contract that exchanges freedom for security. This forms the basis of a democratic state, where the power still remains with the people and leaders can be easily overthrown through revolutions or through voting. This also sets the basis for what components define citizenship i.e. ability to vote and participate democratically in exchange for abiding by state legislation and social order. Connecting citizenship with participation in society creates a functioning social order. Citizenship can be thus considered a social construct based upon the social contract theory.
Both the theories of Locke and of Hobbes can be described as Contractarianism, the philosophical thinking that society operates upon an implicit mutual agreement between the state and the individuals within the jurisdiction that explains how a state gains power and why the individuals' consent to being governed (Lee, 2011). The moral theory of contractarianism follows this logic but clarifies that the reasoning for obedience with the governance is not of self-interest but due to a moral commitment to the maintenance of a certain standard of society (Cudd & Eftekhari, 2018).
There are other theories explaining the premise of political engagement and obedience such as the thinking of Ardent and Aristotle which expand this logic. Aristotle believed that citizenship was based upon civic duties and active participation in society to contribute to the common good (Mulgan, 1990). He clarified that not only does the state have duties in provisions, but citizens have certain civic responsibilities too such as abiding by the law, paying taxes, and participating in democracy through voting (Mulgan, 1990). Using Aristotle’s logic, any person who actively contributes to society and engages civically should be considered a citizen and thus gain access to the benefits and rights attributed to citizens. Similarly, Ardent sees citizenship not as a social construct but as a necessary medium to accessing human rights (DeGooyer et al., 2018). She critiques the claim that human rights are universal and alienable, meaning that in theory they apply to all human beings and therefore all human beings have a right to them regardless of citizenship (UDHR, 1948), yet the provision of human rights through the state creates problematic segregation between citizens and non-citizens, as barriers to access social services are enacted such as preventing the ability to vote and access to public health and education services (Council of Europe, n.d.).
Therefore, without citizenship, membership within a state, a person cannot access their rights. The existence of refugees, asylum seekers and stateless people who struggle to access their human rights exemplifies this (Hirsch & Bell, 2017). Ardent coins this as “the right to have rights” (Arendt, 2017) and suggests that while state sovereignty exists human rights cannot be universal or inalienable. This paradox sets the precedent for the exploration of the different forms of citizenship and how they affect access to human rights.
Citizenship can be achieved in different ways depending on the legislation of the country. To explore the moral arbitrariness of birthright citizenship versus citizenship in general, other forms of citizenship must be explored, specifically, jus soli (birthright citizenship); jus sanguinis (heritage citizenship); and jus nexi (naturalisation).
Jus soli (Birthright Citizenship)
Jus soli aka birthright citizenship, is the law that citizenship is based upon the place of birth, for example, those who are born in the United States are US citizens regardless of their parents' nationality (Friedman, 2018). Birthright citizenship prevents statelessness and simplifies a state's understanding of those in their jurisdiction (Leydet, 2017). Due to the morally arbitrary nature of birth, i.e. the fact that a person cannot control where they are born, birthright citizenship can be considered unjust as it creates inequities, and cannot be consented to.
Due to the social inequality present in the modern world, birthright citizenship discriminates against those who are not born to strong citizenship i.e. those born in Sweden have a very different life experience to those born in Gaza due to their disparities in the countries’ wealth (Numbeo, 2021). Furthermore, because citizenships are directly tied to mobility and have become restrictive i.e. those born in Gaza couldn’t easily move to Sweden to access the benefits of Swedish citizens due to citizenship and immigration restrictions (Human Rights Watch, 2021), this restrictive nature and the morally arbitrary aspect of birth further exacerbate the inequities making birthright citizenship unjust. This philosophical thinking aligns with the thinking of John Rawls. Rawls describes poverty through a thought experiment “the original position” (Rawls, 1999) explaining that if we were to be born into the world not knowing what kind of race, gender and socioeconomic characteristics we would be attributed, what kind of bare minimum requirements would be requested i.e. free healthcare, no racism or discrimination, etc (Rawls, 1999).
This thought experiment can help decipher the core human rights and provisions that must be accessible for all human beings regardless of race, gender or class. Citizenship arguably should incorporate this through not being a requirement to access those rights. This is true, to an extent, through the provision of the UDHR which outlines the human rights that are universal and inherent to all human beings despite citizenship or nationality (United Nations, 1948). However, many of these rights are implemented through the state making accessibility the issue and citizenship becomes a segregator.