The Stateless and the State: A Modern Social Contract?

by Josh Grainger

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Whilst being a refugee is the bleak reality for more than twenty-six million people, and it has profound sociopolitical implications, there continues to be little academic consensus on what it means to be a refugee, even during current periods of unprecedented displacement.^[i] Despite the importance of considering this form of forced migration in our conceptualisations of modern statehood, theorists exploring the social contract have avoided engaging in discussions about the “stateless.”^[ii] This essay defines refugees as those who have not only been forced to end all consensual political arrangements with their original state, but have also had their claims of persecution verified by the relevant authorities, and are now residing in a host country without any formal citizenship status. It will be argued that in order for social contract theory (SCT) to be an effective theoretical tool for understanding the rights and responsibilities that exist between contemporary individuals and their state, then it should also include all adults who are afforded refugee status. This conclusion will be supported through an interrogation of the traditional account of SCT, first popularised by Thomas Hobbes, before moving on to challenge the more recent version advanced by John Rawls. After exposing the flaws of these landmark approaches, this essay will then provide a more detailed definition of refugees and why their stateless status demands that the concept of “contested citizenship” be embedded within SCT. Due to space constraints, this argument will not attempt to cite all major variants of SCT. 

Traditional accounts of SCT have been rigorously critiqued for their dismissal and disenfranchisement of minority groups within our society. Before I address these critiques, it is first necessary to introduce these historical approaches since they established SCT, continue to remain influential within political philosophy, and provide the necessary contextual background for the argument that will follow. Hobbes is widely cited for his characterisation of the social contract. In Leviathan, he describes the social contract as a tacit yet consensual agreement—reached between individuals in a pre-political “state of nature”—to surrender some of their freedoms in exchange for the protections offered by a sovereign with absolute authority.^[iii] The Hobbesian view suggests that there are no existing natural rights and thus these rights can only be granted by a sovereign authority. In sketching the genesis of civil society and the communal state, Hobbes positions individuals as reliant upon the sovereign in order to escape anarchy. 

Carole Pateman in The Sexual Contract and Charles W. Mills in The Racial Contract each construct persuasive critiques of such Hobbesian, absolutist accounts on the grounds that they have always systematically relegated women and people of colour to an inferior position. Pateman emphasises that Hobbesian SCT enforces subordination through voluntary agreement but fails to differentiate between the distinct processes of consent and conquest.^[iv] For Pateman, Hobbes structures his entire account in order to justify the dominance of men over women in this natural state without defending or even explicitly declaring this controversial stance.^[v] Mills arrives at a similar conclusion, arguing that Hobbes and other key thinkers within the contractarian tradition have posited that only white people have produced viable civilisations.^[vi] Racialised subgroups thus become positioned by SCT as “biologically destined never to penetrate the normative rights ceiling established for them below white persons.”^[vii]Through their respective analyses of the politicised origins of the social contract tradition, Pateman and Mills both reveal that SCT has served as a method for European white men to identify themselves in contrast to other peoples that they deemed to be inferior. For them, it became a moral psychology which justified the institutionalised privileging of their own race at the immediate expense of others. 

We see, then, that the social contract has never been a contract between everybody but only between those deemed worthy by the dominant class of persons. The traditional Hobbesian account demonstrates that one of the purposes of SCT has always been to obscure the problematic political reality that some persons are accorded the rights and freedoms of full persons, while the rest are merely treated as subhuman. It is therefore unsurprising that refugees remain excluded from theorisations of the social contract, given the othering they experience upon entering societies as stateless individuals. As the Hobbesian account is nearly four hundred years old, perhaps this exclusionary nature is a result of its age and any attempt to apply it to the current political landscape would simply be anachronistic.

With his introduction of the “veil of ignorance” thought experiment as a supposedly objective guide for our morality, Rawls’s more recent account of SCT has revived its importance within contemporary political philosophy.^[viii] Behind this veil of ignorance, individuals are unaware of whether they will be born into a life of royalty or that of a refugee. The “original position” that they would be expected to accept on moral issues is deemed to be just and fair as a result. Rawls thus implies that accounting for diversity within the social contract is not only to be expected but is necessarily a positive consideration.^[ix] Yet despite this, he is often accused of producing a rigid account of SCT which is incompatible with a diverse world. This is because it fails to embody the spirit of what should be an ever-evolving social experiment capable of reflecting our political landscape.  

Gerald Gaus challenges the applicability of Rawls’s work to our increasingly diverse world. Our world is comprised of distinctly heterogeneous societies that cannot logically adhere to the universal framework that he champions.^[x] The pervasive myth within the contractarian tradition that Rawls reproduces is that “stability is induced by homogeneity and endangered by diversity” when he himself acknowledges that the state becomes stronger when it encompasses a wider range of views and thus individuals.^[xi]Finding a balance between stability and diversity is certainly important for the liberal institutions of today, but the fear of change has impaired their effectiveness and seemingly trapped even modern versions of SCT in the past. Rawlsian variants of SCT are further problematised by Ryan Muldoon who believes that they champion an unnegotiable and fixed social contract, denying what should be an adaptable and dynamic tool in an ongoing social experiment.^[xii] For Muldoon, Rawls strangely assumes that agents approach the veil of ignorance with the exact same epistemologies despite knowing that we each have vastly different lived experiences. Even though the original position is arguably a more just approach to forming a social contract, it still privileges a particular form of public reasoning and moral agreement. This in turn disproportionately disadvantages refugees and other minority groups around the world who do not share the same dominant ideologies.^[xiii]  

These critiques unite to urge a reassessment of Rawls’s theory and the supposed inclusivity of the social contract experiment that he believes he has constructed.^[xiv] Admittedly, the version of SCT advanced by Rawls may be less rigid than that of Hobbes but it still fails to embody the inclusivity required for it to be an effective theoretical tool in an increasingly displaced world. As the lack of citizenship prevents meaningful participation within civil society, the refugee experience is one that drastically differs from the universal liberal agent of Western contract theory. Institutionalised prejudice creates a gap in collective interpretive resources, often rendering the lived experiences of refugees inaccessible.^[xv] For this reason, including adult refugees within the social contract could be a logical move, capable of assisting the theory in beginning to address many of the contemporary critiques that highlight SCT’s ingrained prejudices. 

After all, refugees by definition no longer have any meaningful access to their original citizenship, and this excludes them from the social contract. It also effectively renders them stateless until their host country grants them some form of permanent status. An Iranian LGBTQI+ activist forced to flee their original state, for example, may officially remain an Iranian citizen but it is quite difficult to argue that they still have access to the legal protections afforded to them by this status alone—given their original state actively persecuted them. We find this in the United Nations Convention on the Status of Refugees where a refugee is defined as an individual who:

…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political option, is outside the country of his [sic] nationality, and is unable or, owing to such fear, is unwilling to avail himself [sic] of the prose lion of that country.^[xvi]

When political thinkers only conceptualise the complex process of refugee settlement as mass movement from a site of conflict to one of security, they neglect to interrogate the countless transitions through the various social and political contexts that occur.^[xvii] What is revealed when this interrogation takes place is the key role of the social contract. With the repatriation of refugees to their original state viewed as a “re-making” of the social contract, there is growing consensus within refugee studies that the original social contract has indeed been “broken” or voided.^[xviii] In other words, when a government persecutes its citizens they sever the existing social contract and leave these individuals both stateless and vulnerable.

This essay acknowledges that citizenship is not a universal concept and is expressed more ambiguously within many of the non-Western societies from which refugees have fled, however it simultaneously is a vital concept in most societies that accept refugees.^[xix] As resources become even scarcer within liberal-democracies, the need to define who should receive the benefits accompanying citizenship remains a source of controversy.^[xx] Whilst a functioning social contract is emphasised as being key to including refugees in political communities, this requires more than just capacity on behalf of the state—it demands an active commitment to the most vulnerable.^[xxi]

In the same way that the social contract creates a dichotomy between those considered humans and subhumans, “epistemic injustice” is produced by distinguishing between who should be viewed as “knowers” and “sub-knowers.”^[xxii] The settlement narrative across the world is dominated by exclusion from key services as well as countless barriers towards ever acquiring formal citizenship.^[xxiii] Part of the reason for this is likely because refugees are labelled as sub-knowers, with dominantly situated individuals in society adopting a blindness to their plight and pleas for more support as a result of their race or ethnicity. Driven by an international order which continues to privilege citizenship; an international society that remains fearful of those who do not conform; and a global economy which sees the stateless essentially deemed valueless; the injustices experienced by refugees are inherently structural.^[xxiv] By identifying us and further separating us from them, citizenship is considered to be the essence of state sovereignty. For this reason,  a more flexible conception of citizenship as “contested” could arguably account for refugees in SCT without jeopardising any existing rights. 

A lack of citizenship impairs the full engagement of stateless refugees in the polity and yet SCT is expected to explain the distribution of rights between individuals and the state. The liberal notion of “contested citizenship,” as it relates to refugees, would therefore be a necessary component of the social contract in an increasingly diverse and displaced world where a lack of citizenship prevents equal participation within our society. Academics have reiterated that citizenship remains crucial to refugees’ claims to a full set of human rights and the social contract model is viewed as a useful theoretical framework through which to consider the various socio-political obligations that exist between refugees and their adoptive states.^[xxv] Since  citizenship offers “an imagined alternative to living on the margins and a resolution to exile,” the consideration of a contested citizenship is key to achieving a sense of inclusion within an established polity.^[xxvi] Sustainable solutions to the current refugee crisis will not involve the halting or reversing of the movement of refugees but rather a restoration of citizenship, for it is this status which offers legal protection and symbolises a binding commitment to human rights.^[xxvii] The politics of immigration and integration reveal that it matters how states assist in making refugees citizens. Consider that an aversion to cultural pluralism within the political elite of France continues to cause refugees to prefer their particularist identities over their adoptive nation.^[xxviii] Rather than view themselves as French, the state has driven refugees to retreat to their faith-based identities, fostering further social disharmony and discouraging meaningful engagement in civil society. 

In response to my argument, some may question why citizenship rights should be afforded to adult refugees when they are stripped from, for example, prisoners.^[xxix] Prisoners have through their criminal actions been deemed by the state to have broken the societal obligations to which we are all ascribed. Despite this, however, prisoners retain their formal citizenship and many rights whilst incarcerated even though limits are placed on their freedom and ability to vote.^[xxx] In contrast, adult refugees have not committed any crimes, and have reached the minimum voting age where one is expected to contribute to society. They have fled to protect their lives only to arrive to a state which renders them socially dead through institutionalised exclusion.^[xxxi]As marginalised groups have always demonstrated, the boundaries of citizenship are often contested and the effectiveness of SCT in outlining political relationships can be improved if those afforded refugee status are included. In its current form, SCT defines the strict bounds of personhood in an antiquated way, and consequently relegates refugees to a position where they are mere objects of contracts. If refugees are a party to the social contract, and thus must shoulder its burdens, they should not be denied access to its privileges or rights.^[xxxii] The absence of refugees from the social contract speaks not only to a potentially harmful structuring of civil society in liberal democracies but to an outdated conception of citizenship that is increasingly incompatible with the complexities of the world today. A revised form of citizenship could provide refugees with the legal protections that they once enjoyed and have since lost whilst still respecting traditional citizens. 

This essay has sought to challenge the existing paradigm within liberal political thought; namely, that the social contract is an effective lens through which to evaluate the rights and responsibilities that currently exist between individuals and their state. It was argued that for SCT to be a useful theoretical tool it must also account for all adults afforded refugee status. This conclusion has been supported by interrogating the flaws inherent within SCT, from its gendered and racially motivated origins to its contemporary failings regarding stateless individuals during a period of unprecedented displacement. It was revealed that even modern accounts of SCT perpetuate a rigid and anachronistic view, effectively denying that the theory could be an inclusive political instrument, capable of responding to change. Addressing ethical and political challenges within an increasingly displaced world requires thinkers to engage with change, instead of conventionality, and it demands a reimagining of how refugees are approached across the world by liberal states. 

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Josh is currently in his final year of undergraduate study, reading for a Bachelor of Politics, Philosophy and Economics (Honours). He is passionate about applying ethics in order to practically address the world’s most “wicked” political problems. 

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ENDNOTES

^[i]    Elena Fiddian-Qasmiyeh et al., The Oxford Handbook of Refugee and Forced Migration Studies (Oxford: Oxford University Press, 2014), 4.

^[ii]   Matthew J. Gibney, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (Cambridge: Cambridge University Press, 2004), 15.

^[iii]   Thomas Hobbes, Leviathan (Minneapolis: Lerner Publishing Group, [1651] 2018), 122.

^[iv]   Carole Pateman, The Sexual Contract Oxford (United Kingdom: Polity Press, 1991), 76. 

^[v]   Ibid., 82.

^[vi]   Charles W. Mills, The Racial Contract (London: Cornell University Press, 1997), 94.

^[vii] Ibid., 17.

^[viii] John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), 10-11. 

^[ix]   Ibid., 401. 

^[x]   Gerald Gaus, The Tyranny of the Ideal: Justice in a Diverse Society Princeton and Oxford: Princeton University Press, 2016), 176. 

^[xi]   Ibid., 231.

^[xii] Ryan Muldoon, Social Contract Theory for a Diverse World: Beyond Tolerance (London and New York: Routledge, 2016), 27.

^[xiii] Ibid., 156. 

^[xiv] Gaus, The Tyranny of the Ideal, 169. 

^[xv] Miranda Fricker Epistemic Injustice: Power and the Ethics of Knowing (Oxford: Oxford University Press, 2007), 58.

^[xvi] United Nations High Commissioner for Refugees (UNHCR), The Convention Relating to the Status of Refugees (United Nations, New York, 1951), 14.

^[xvii] Samuel Muchoki, Intimacies, Citizenship and Refugee Men (Cham: Palgrave Macmillan, 2017), vii.

^[xviii] Katy Long, “Statebuilding Through Refugee Repatriation,” Journal of Intervention and Statebuilding 6, no. 4 (2012): 371. 

^[xix] Muchoki, Intimacies, Citizenship and Refugee Men, 12. 

^[xx] Ann M. Field, “Contested Citizenship: Renewed Hope for Social Justice,” Canadian Woman Studies 20, no. 2 (2000): 78-83. 

^[xxi] Katy Long, The Point of No Return: Refugees, Rights, and Repatriation (Oxford, United Kingdom: Oxford University Press, 2013), 216. 

^[xxii] Gaile Jr. Pohlhaus, “Varieties of Epistemic Injustice,” in The Routledge Handbook of Epistemic Injustice, eds. I Kidd, J Medina and G Pohlhaus Jr. (London: Routledge, 2017), 17.

^[xxiii] Jane Haggis and Susanne Schech, “Refugees, Settlement Processes and Citizenship Making: An Australian Case Study,” National Identities12, no. 4 (2010): 368. 

^[xxiv]       Jade Larissa Schiff, “Welcoming Refugees: Mindful Citizenship and the Political Responsibility of Hospitality,” Journal of Women in Culture and Society 43, no. 3 (2018): 737-738. 

^[xxv] Haggis and Schech, “Refugees, Settlement Processes and Citizenship Making,” 377; Katy Long, “Refugees, Repatriation and Liberal Citizenship,” History of European Ideas 37, no. 2 (2011): 234. 

^[xxvi]       Lucy Hovil, Refugees, Conflict and the Search for Belonging (Cham: Palgrave Macmillan, 2016), 199.

^[xxvii]       Long, “Refugees, Repatriation and Liberal Citizenship,” 234. 

^[xxviii]      Ruud Koopmans et al., Contested Citizenship: Immigration and Cultural Diversity in Europe (Minneapolis: University of Minnesota Press, 2005), 239.

^[xxix]       Matthew J. Gibney, “The Ethics of Refugees,” Philosophy Compass 13, no. 1 (2018): 5. 

^[xxx] Adebayo Randle, “Prisoner Voting Rights and the Social Contract,” Dublin Legal Review Quarterly 1, no. 1 (2011): 69. 

^[xxxi]       Lisa Guenther, Solitary Confinement: Social Death and Its Afterlives (Minneapolis and London: University of Minnesota Press, 2013), 20. 

^[xxxii]       D. K. Leonard and M.S. Samantar, “What Does the Somali Experience Teach Us about the Social Contract and the State?” Development and Change 42, no. 2 (2011): 560.

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WORKS CITED

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Field, Ann M. “Contested Citizenship: Renewed Hope for Social Justice.” Canadian Woman Studies 20, no. 2 (2000): 78-83. 

Fricker, Miranda. Epistemic Injustice: Power and the Ethics of Knowing. Oxford, United Kingdom: Oxford University Press, 2007. 

Gaus, Gerald. The Tyranny of the Ideal: Justice in a Diverse Society. Princeton and Oxford: Princeton University Press, 2016. 

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 —. “The Ethics of Refugees.” Philosophy Compass 13, no. 1 (2018): 1-9.

Guenther, Lisa. Solitary Confinement: Social Death and Its Afterlives. Minneapolis and London: University of Minnesota Press, 2013. 

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—. “Statebuilding Through Refugee Repatriation,” Journal of Intervention and Statebuilding 6, no. 4 (2012): 369-386.

 —. The Point of No Return: Refugees, Rights, and Repatriation. Oxford: Oxford University Press, 2013.  

Mills, Charles W. The Racial Contract. London: Cornell University Press, 1997. 

Muchoki, Samuel. Intimacies, Citizenship and Refugee Men. Cham: Palgrave Macmillan, 2017. 

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Pateman, Carole. The Sexual Contract. Oxford: Polity Press, 1991. 

Pohlhaus, Gaile Jr. “Varieties of Epistemic Injustice.” In The Routledge Handbook of Epistemic Injustice, edited by Ian James Kidd, José Medina and Gaile Pohlhaus Jr., 13-26. London: Routledge, 2017.  

Randle, Adebayo. “Prisoner Voting Rights and the Social Contract.” Dublin Legal Review Quarterly 1, no. 1 (2011): 60-70. 

Rawls, John. A Theory of Justice. Cambridge: Harvard University Press, 1971. 

Schiff, Jade Larissa. “Welcoming Refugees: Mindful Citizenship and the Political Responsibility of Hospitality.” Journal of Women in Culture and Society 43, no. 3 (2018): 737-762.

United Nations High Commissioner for Refugees (UNHCR). The Convention Relating to the Status of Refugees, 1 January. GA/Res/2198. United Nations, New York, 1951. 

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Featured image ‘Syrian refugee camp in the outskirts of Athens’ by Julie Ricard via Unsplash.

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