Welcome to the sixth blog post in a series on the theme of legal personhood. Each fortnight we will ask a La Trobe Law School academic to write about how the concept of legal personhood intersects with their research interests. Today’s post is written by Professor Paula Baron, who researches and writes on lawyer wellbeing, legal ethics, socio-legal studies and feminist legal theory.
Legal personhood is intimately linked with legal and political notions of citizenship. In law, citizenship recognises a person as a member of a nation state. Such recognition gives rise to a bundle of rights and obligations. Put simplistically, the citizen may go about their business in accordance with the law and, in return, may claim the law’s protection. In practical terms, this may mean that the citizen has, for instance, rights (such as the right to vote and to claim a passport) and obligations (such as the obligation to obey the law and to pay taxes).
We often take our legal citizenship for granted. But to lack citizenship is to be stateless, a problem that now affects an estimated 12 million people. Whether people are born stateless, or become stateless over the course of their lives, with no citizenship, they lack the fundamental rights we find so familiar: they cannot vote, for instance, have no right to work, to education or to health care and they cannot travel.
Citizenship, then, is fundamental to our expectations of life in a liberal, democratic society. It may seem surprising, then, that in Australia, our Constitution is silent on the issue of citizenship. The legal concept of the Australian citizen was created as recently as 26 January 1949 with the enactment of the Nationality and Citizenship Act 1948 (Cth) (now the Australian Citizenship Act 2007 (Cth)). The introduction of this legislation meant that people born in Australia became Australian citizens automatically. Prior to this legislation, people born in Australia were British subjects.
In political and philosophical terms, there has been an increase in interest in the concept of citizenship since the 1990s. There have been at least two reasons for this. Firstly, orthodox notions of legal citizenship, often termed the ‘universalist’ model, came under increasing criticism for failing to acknowledge the political relevance of difference, such as indigeneity, gender, class or sexuality. Certain groups, marked by difference, may not have the same access to the rights of citizenship as other Australians. Underlying such critiques is a distinction between ‘big C’ Citizenship (legal notions of citizenship which are largely universal and exclusionary) and ‘little c’ citizenship (which is an inclusive and normative concept). This distinction is key to understanding, for instance, Ken Plummer’s notion of ‘intimate citizenship’, which points to the collapse of the boundaries between public and private life which have traditionally sustained orthodox citizenship. Plummer argues this collapse opens possibilities for inclusion, and for democratic and plural forms of intimate life.
A second impetus for the renewed interest in citizenship is globalisation and its impact on the territorial, sovereign state. This issue has a number of manifestations in citizenship debates. Two such manifestations relate to the movement of people across borders; and, increasingly, the control of persons within borders. Given the many people fleeing persecution and hardship, for instance, to what extent can a political community, such as Australia, exclude certain peoples from entry and on what basis? What restrictions on the civil liberties of citizens are justified to counter terrorism? Should we revoke citizenship for some individuals involved in terrorist activities?
A further manifestation of the citizenship debate in the face of globalisation is related to the concept of ‘global citizenship’. Global citizenship generally refers to self-identification with a global, rather than a national, community. The term is, however, contested, as Michael Byers points out: there are benevolent visions of global citizenship that refer to our increasingly shared experiences and identities, resulting from new technologies, travel and shared global issues, such as human rights or climate change. But there are also darker visions of global citizenship, which refer to the characteristics of late capitalism, such as the power of transnational corporations, the movement of commodities and capital across borders, the international ‘outsourcing’ of labour to locations where labour is cheapest and an increasing concentration of power in an educated, professional and primarily Western elite.
We often think of citizenship as a fairly dry, straightforward and even uninteresting topic. But it is through citizenship that we become both subjects and objects of law and it is fundamental to our democracy. Far from being dry, citizenship is richly infused with many meanings and associations and is a concept that continues to evolve in light of the changes in our communal experiences and circumstances, both local and global.
Paula Baron, ‘Legal Personhood #6: The Citizen’, Law and Justice, 3 June 2015 (La Trobe Law School Blog, http://law.blogs.latrobe.edu.au/)