Debates in political philosophy on democratic inclusion arose initially in
response to the problem of what Michael Walzer called "metics". The case of
the metics shows that citizenship is not ultimately about being affected by
particular decisions or being subject to particular laws, but about
membership in a self-governing society. In this chapter, the authors argue
that these cases raise a fundamental challenge to the theories of democratic
inclusion, not just about who is included, but also about what it means to
be a citizen and how to characterize the underlying moral purposes of
citizenship. They also argue that these cases reveal a deep tension within
democratic theory between two models of citizenship: membership model and
capacity contract. The membership model defines citizenship in terms of
social membership and the capacity contract defines citizenship in terms of
capacities for particular kinds of political agency.
Rainer Bauböck's essay argues
persuasively that our account of democratic inclusion needs to be more complex
than is usually recognized. Whereas most authors attempt to identify a single
fundamental principle of democratic inclusion – whether it is the all
affected interests principle or the all subjected to coercion principle or some
social membership/stakeholder principle – Bauböck shows that there
are different types of polities with different principles of inclusion, and
that the appropriate principles for inclusion at one level depend in part on
the principles operative at other levels. Birthright citizenship at the
national level, for example, makes possible both residency-based citizenship at
the local level and derivative or nested citizenship at the federal level, just
as the latter two modes of citizenship help to correct potential injustices or
forms of domination generated by birthright citizenship at the national
We are in broad agreement with Bauböck's general story about
the need to complicate theories of democratic inclusion by recognizing multiple
principles of democratic inclusion tied to multiple types of polity. The aim of
this commentary is to push his project one step further, by adding another
layer of complexity to our thinking about democratic inclusion. We will focus
on a range of cases that fall outside our normal assumptions about who is
eligible for, or capable of, citizenship, including children, people with
cognitive disabilities and domesticated animals.
What members of these groups have in common is that they are
members of society, in a sociological sense – living out their lives as
part of a transgenerational “core” community, engaging in
intersubjective communication, participating in cooperative activity, abiding by social
norms – but they lack the capacity to engage in the kind of rational
deliberation about political propositions that is widely assumed to
characterize democratic citizenship. As Gary Steiner (2013) notes, most theories of citizenship have assumed that citizens have
what he calls “linguistic agency” – the ability to
articulate, understand, evaluate, negotiate and commit to abstract linguistic
propositions regarding the terms of social cooperation with their fellow
citizens.1 But in reality, many
members of society are not linguistic agents. Where do they fit in our theory
Bauböck does not say much about such groups, and what little
he says, we will argue, is inadequate. In this respect, he follows much of the
Western political tradition, which has systematically ignored the rights and
status of social members who are not capable of deliberative political speech.
We will argue that these cases raise a fundamental challenge to our theories of
democratic inclusion, not just about who is included, but also about what it
means to be a citizen and how to characterize the underlying moral purposes of
To foreshadow, our argument is that these cases reveal a deep
tension within democratic theory between two models of citizenship: what we
call a “membership model”, which defines citizenship in terms of
social membership; and a “capacity contract”, which defines
citizenship in terms of capacities for particular kinds of political agency.2 The former entails that children,
people with cognitive disabilities and (we will argue) domesticated animals
count as citizens; the latter entails they do not. Most theorists appeal to
both, and then seek to square the circle by creating various subordinate forms
of membership-without-citizenship. Bauböck's argument can be seen as a
version of this strategy.
We will argue that there is no way to square the circle: the two
models are simply contradictory, requiring us to choose between them.3 We will also argue that, confronted
with that choice, liberals should simply abandon the capacity contract. This
would not, by itself, require rejecting the basic structure of Bauböck's
model, with its three distinctive principles for the three distinctive forms of
polity. Indeed, it would strengthen it, by providing a clearer and more
defensible account of both the circumstances and purposes of citizenship.
The membership model
Current debates in political philosophy on
democratic inclusion arose initially in response to the problem of what Michael
Walzer called “metics” – the existence of large numbers of
immigrants who had settled long term in European countries, such as the Turkish
Gastarbeiter in Germany, yet who were not eligible for citizenship.
Indeed, even their children, born and raised in the country, were sometimes
ineligible for citizenship (Walzer 1983). Walzer
argued compellingly that this was an injustice. These long-time residents were
clearly members of society, not just in the sense that they paid taxes and
obeyed the law, but in the deeper sense that they had made a life in their new
society and formed a dense web of social ties. In the case of their children,
this was often the only home they knew. Yet they were treated as aliens and
outsiders. Walzer argued this was both unjust and undemocratic.
This initiated a search within political philosophy to specify
more precisely the principle that grounds a right to citizenship for metics.
For many theorists, the first reaction was to appeal to some version of the all
affected interests principle: metics are entitled to citizenship because their
interests are affected by the decisions of the state in which they live. But on
sober second thought, it became clear that this principle is problematic. The
set of individuals who are affected by political decisions varies from issue to
issue in ways that make it impossible to develop a stable demos. For example,
while all of our decisions are likely to affect some foreigners, the set of
foreigners affected by an environmental policy is likely to be different from a
trade policy – just as these policies affect some but not all residents
within the country – leading to ever-changing boundaries of inclusion on
a case-by-case basis. In Bauböck's words, “letting affected
interests determine the boundaries of the demos would create indeterminate or
ephemeral demoi that are structurally incapable of ruling themselves” (p.
Whether the all affected interests principle can be salvaged from
this criticism is an ongoing debate in the literature (e.g. Goodin 2007; List and Koenig-Archibugi 2010; Saunders 2011;
Koenig-Archibugi 2012; Song 2012). But in any event, it is clearly a
misdiagnosis of the original problem of the metics. In fact, it arguably
replicates that injustice, by putting metics on a par with foreigners, as prima
facie outsiders who might nonetheless qualify for inclusion on particular
decisions because they have affected interests. The Turks in Germany are not
just saying that they are affected by this or that public policy of the German
government, but that they are members of the public in whose name the state
governs. They are part of German society – they belong there and have
made a life there. It is the failure to recognize this fact of social
membership that creates the injustice – not the failure to take into
account some discrete interest affected by a particular German policy. If
Germany adopts an industrial policy that has spillover pollution costs for
people in Poland or Denmark, that is a harm to affected interests for which
some sort of accountability and remedy is required.5 But permanently relegating a portion of German society
to the status of non-citizen metics is a very different type of injustice, for
which a different remedy is required. The all affected interests principle has
nothing useful to say about addressing this type of injustice.
In response to this defect of the all affected interests
principle, other theorists have proposed the “all subject to
coercion” principle as a basis for grounding rights to citizenship for
metics. This seems closer to the mark, since it focuses not just on incidental
or unintended impacts on interests of discrete policies, but on a more direct
relation of governing. The Turkish metics are not just affected by German
policies, but are governed by them. But this too doesn't quite capture the
injustice of the metics’ situation. After all, even short-term tourists
or visitors are subject to the law, and so would seem to qualify for rights of
inclusion under the all subject to coercion principle.6 Yet the whole point of the metics example is that it
is wrong for the German government to treat them as if they were visitors or
tourists, rather than as full members of society. It is no response to this
problem to say that even if they are just visitors, they still have democratic
rights. That leaves untouched the fundamental injustice of being treated as an
alien or outsider in the society where one has made one's life. Insofar as
tourists are subject to coercion they may well have rights to equal protection
of the law and to contest the arbitrary exercise of power, but that is
different from the right of members of society to inclusion in the demos.
The case of the metics shows that citizenship is not ultimately
about being affected by particular decisions or being subject to particular
laws, but about membership in a self-governing society. People living in
foreign societies are affected by our decisions, and tourists visiting our
society are subjected to our laws, and these facts are politically
consequential – we need to be held accountable for these impacts and
these exercises of power. But citizenship is about being a member of a
self-governing society. In short, citizenship should track social membership.7
We can call this the membership model of citizenship, which ties
citizenship to an ethos of membership. To be a citizen is to be a member of the
society (or “the public” or “the people”) in whose name
the state governs, and one central function of citizenship is precisely to
acknowledge this membership, to acknowledge who belongs here, who has made a
life here, and who therefore has a right to shape the terms of our shared
Many passages in Bauböck's text can be seen as endorsing
this membership model. He says that we are “social animals” (p. 40)
who have a stake in membership as such which is different from a stake in the
protection of a particular policy interest or a particular legal right. Because
of the kind of social animals we are, we thrive as members of an
intergenerational community, bound together by ideas of belonging to, and
ownership of, a bounded society. We are not a “merely functional
aggregates of individuals who happen to share an interest in a particular
political decision” (p. 11). Rather, we make a life for ourselves in a
particular society, develop social ties within that society, and our well-being
is pervasively tied up with the shared norms that govern the scheme of social
cooperation, and with how we are treated by our fellow members. Citizenship is
an acknowledgement of this “stake in membership”: it affirms that
we are members of this intergenerational community, and that, as such, we have
a right to shape its social norms and to co-author its laws, as well as a
responsibility for its long-term future.8
As we said, many passages in Bauböck's text can be read as
supporting this membership model, which we take to be the most compelling
account of democratic inclusion. However, in other places he backs off this
view, and suggests that social membership is not a sufficient condition for
political membership. In various places,9 he implicitly suggests that belonging to the “public” or the
“demos” is qualitatively different from belonging to
“society” or “community”, and suggests that one's
interest in being recognized as a member of society is not sufficient for being
recognized as a citizen. The net result, as we will see, is that he condones
creating a new set of metics. Most of the original metics – such as the
Turkish Gastarbeiter – may be included as citizens on his account,
but a whole new set of members of society are rendered ineligible for
citizenship. These passages are puzzling, and at odds with the liberal and
democratic impulses that otherwise inform his account. We will return to these
passages below, but let us first spell out the broader implications of the
social membership model.
While the migrant workers in northern
Europe were the initial case that stimulated recent work on democratic
inclusion, a moment's reflection would reveal that they are not the only group
that is relegated to the status of metics within contemporary democracies.
There are many other groups that are clearly members of society but who are
denied the rights of democratic citizenship. Consider children, who form around
one-third of the population of any given society. Or consider people with
cognitive disabilities, who number in the millions in some countries.11 They are clearly members of
society. They are born into a society, participate in its social relationships,
share in the benefits and burdens of social cooperation, and live their lives
within its territorial boundaries. And this fact of social membership is
acknowledged in nationality law: children and people with cognitive
disabilities typically have the formal status of citizenship or nationality by
birth. They are not foreigners or stateless. Yet these members of society are
denied substantive citizenship, and are disenfranchised (universally in the
case of children, to varying degrees in the case of people with cognitive
disabilities). As members of society, they are typically accorded certain
rights to protection (against harm) and provision (of public services), but
they are denied the rights to participate in democratic shared rule which
defines modern accounts of citizenship.12 (This denial of political rights has come under increasing scrutiny,
and is directly challenged by the UN Convention on the Rights of Persons with
An even more striking case concerns domesticated animals. They
too are members of society, at least according to most standard sociological
definitions of sociality (i.e. intersubjective recognition, communication,
trust, cooperation, compliance with shared norms). Domesticated animals share a
social world with us, and play a vital role in our schemes of economic
production and social cooperation, a reality which is now widely acknowledged
(and studied) by sociologists and anthropologists (Peggs 2012). They too live and die within our societies, and they too belong
here. Having been taken out of the wild and bred over centuries to be dependent
on us, they have no other home. In that sense, domesticated animals are,
sociologically speaking, members of our societies, whose fate is entirely tied
up with how they are treated under our social norms and institutions. They
would therefore seem to qualify for citizenship under a membership model that
ties citizenship to being a member of society.13 Yet, virtually without exception, theorists of
citizenship have excluded animals, often in the very same sentence that they
exclude children and people with cognitive disabilities,14 relegating them to the status of metics.
One might think that this exclusion is inevitable because
members of these groups simply are unable to engage in some of the core
practices of citizenship, such as jury duty, voting or public political
deliberation. But from a membership perspective, this gets things backwards. We
don't start with some received view about essential citizenship practices and
then ask who qualifies for citizenship in virtue of being able to perform these
practices. Rather, we start from some account of who is a member of society
– in Bauböck's terms, who has a “stake in membership”
– and then ask how to organize politics to enable all members to enact
their citizenship. If not every member of society is able to vote or to engage
in public reason, then we need to find alternative ways of enabling those
members to have a say in the governing of society.
In fact, important work has already been done in imagining how
to extend democratic citizenship to children (Moosa-Mitha 2005; Rehfeld 2011; Bacon and
Frankel 2014), and to people with cognitive
disabilities (Francis and Silvers 2007; Arneil 2009; Clifford 2014;
Davy 2015). These experiments in democratic
inclusion have emerged, partly in response to the mobilization of advocates,
but also in response to recent changes in international human rights law, which
emphasize that both children and people with cognitive disabilities have a
right to a say in matters that affect them – that is to say, rights to
participation, and not just rights to protection and provision.15
Implementing this right to a say is obviously a major social and
political challenge, but the basic idea should not be particularly mysterious.
After all, children and people with cognitive disabilities are clearly wilful
individuals, with strong preferences about the sorts of activities and
relationships in which they would like to engage. They are also quite
communicative about these preferences. They may not communicate through
reasoned propositions, but they have a host of other communicative strategies
for expressing their preferences and negotiating relationships (e.g.
utterances, body language, demonstrative actions). And they are capable of
forming trusting relationships with others who can create the social conditions
under which alternative activities and relationships can be safely explored. An
individual's subjective response to these alternatives can then be observed and
analysed, and those subjective responses can in turn be incorporated into
collective decision-making. There is nothing particularly mysterious about any
of this, all of which takes place on a daily basis, and various societies have
explored how to connect these everyday potentialities for communication and
voice into the broader political process – that is, how to enable
democratic citizenship. As Hartley notes of people with cognitive disability,
while they may lack the capacity for linguistic agency, they certainly have
what she calls the “capacity for engagement” (Hartley 2009), and wherever this exists, possibilities for
democratic engagement exist.
And once we accept this possibility in the case of children and
people with cognitive disabilities, there is no conceptual obstacle to applying
it to domesticated animals as well (Meijer 2013;
Donaldson and Kymlicka 2016a). All of the facts
that make democratic citizenship possible for young children and people with
cognitive disabilities – facts about individual wilfulness,
communication, trust, engagement, dependent agency and the structuring of
choice situations – are also at play in our relations with domesticated
animals. (Indeed, animals could not have been domesticated had they lacked
these capacities for interspecies sociability.)
In any event, this is the logic of the membership model: we
start with an account of who is a member of society, and we ask how to enable all members
of society to participate in shaping the shared norms that govern our life
together. This is a vision of a truly democratic society, one in which
democratic values animate the governing of social life.
The capacity contract
Unfortunately, Bauböck does not
follow this logic. On his story, membership in the demos is not a right of
social membership, but a privilege restricted to those who possess certain
sophisticated cognitive capacities for rational deliberation. Indeed, on a more
careful read, his argument that as “social animals” we have a
“stake in membership” in “transgenerational human
societies” turns out to have little to do with social membership in the
sense described above (i.e. making a life for oneself within a particular
society, developing social ties within that society, complying with social
norms, participating in schemes of social cooperation that determine the
distribution of burdens and benefits). Rather, his argument isolates a much
more specific interest of certain people – namely, linguistic agents
– in being members of a specifically political association that is
defined by certain deliberative practices. Only people who are able to
participate in these deliberative practices qualify for membership in the
The result is that, on Bauböck's model, a gulf emerges
between those who are merely members of society, and those who are members of
the demos who govern society. In the case of children and people with cognitive
disabilities, he says that we can still use the honorific
“citizens” to describe them, in the sense that they are
co-nationals with a right to belong. But he then insists that citizenship in
this sense is not a right to democratic inclusion: not all
“citizens” are members of the demos with rights to participate or
to co-author the shared norms of society (p. 46). Only linguistic agents are
members of the demos – that is, only they are entitled to democratic
citizenship. Others have some sort of shadowy pseudo-citizenship – that
is, something other than the kind of democratic citizenship that tracks membership in the
In this respect, Bauböck implicitly endorses what Stacy
Clifford calls a “capacity contract”, by which some members of
society are deemed to be naturally governed by others (Clifford 2014). According to the capacity contract
(democratic) citizenship should be limited to those who are by nature capable
of ruling, while all others are relegated to some subaltern status, such as
semi-citizenship (Cohen 2009) or wardship (or, in the
case of animals, property).
This capacity contract runs very deep in the Western political
theory tradition, dating back at least to Aristotle, who famously explained
that man is a “political animal” because of his “gift of
Now that man is more of a political animal than bees
or other gregarious animals is evident. Nature, as we say, makes nothing
in vain, and man is the only animal who she has endowed with the gift of
speech. And whereas mere voice is but an indication of pleasure or pain,
and is therefore found in other animals (for their nature attains to the
perception of pleasure and pain and the intimation of them to one
another, and no further), the power of speech is intended to set forth
the expedient and inexpedient, and therefore likewise the just and
unjust. And it is a characteristic of man that he alone has any sense of
good and evil, of just and unjust, and the like, and the association of
living beings who have this sense makes a family and a state.17
For Aristotle, only those with
“the power of speech” to “set forth the just and
unjust” can be party to a political relationship or members of a
political community. Humans who lack this power, like other animals, may have
“the perception of pleasure and pain”, but they are incapable of
articulating and deliberating their interests and claims in abstract
propositional form and are therefore disqualified from being
This idea is so embedded in our philosophical tradition and
political imagination that we have trouble thinking outside of it. There is
growing acceptance that domesticated animals share a social world with us, just
as we have no hesitation in accepting that children and people with cognitive
disabilities share social membership with us. But as Gwendolyn Blue and Melanie
Rock note, we seem incapable of accepting that they can be part of the
Developments in social theory over the past few
decades have unsettled deeply entrenched assumptions about what
constitutes the human by exposing the tenuous divisions that separate
humans, non-human animals and technologies and, in turn, affording a more
active role to non-human entities in the constitution of social worlds.
The concept of the public, however, remains persistently, stubbornly, and
somewhat curiously entrenched in anthropomorphic imaginaries. Within and
outside of academe, it is commonplace to suppose that publics are purely
human and that publics arise from the unique human capacity for symbolic
communication. (Blue and Rock 2014: 504)
Noortje Marres and Javier Lezaun make a
similar observation about our inability to understand politics outside of
The idea that language is the central vehicle of
politics – that language, in fact, founds and sustains the
difference between human politics and the lives and quarrels of those
(beasts or gods) who exist outside the polity – is so deeply
ingrained in our preconceptions of the political that it is almost
impossible to imagine a public, particularly a democratic one, not
constituted primarily by acts of discursive deliberation. We have only
of a term such as “public sphere”, and the careful
delimitation of the kinds of activities conducive to its emergence that
defines its use in contemporary democratic theory, to grasp the
difficulty of coming up with a political vocabulary that is not premised
on disembodied “voice” and linguistic exchange. (Marres and
Lezaun 2011: 492)18
And we should note that virtually every
single textbook in political philosophy published in the past thirty years
implicitly or explicitly endorses the capacity contract, and the restriction of
the public to linguistic agents.19
Given this enduring legacy, it is hardly surprising that
Bauböck ends up recapitulating the central terms of the capacity contract.
But in our view it remains puzzling, and at odds with the spirit of inclusion
that otherwise informs his work. It resolves one case of metic exclusion but in
the process creates another one, and indeed an even larger one.
It is not easy to discern what precisely is Bauböck's
argument for denying that all members of society should be members of the
demos. In places, he suggests that what distinguishes the demos as a political
association from the rest of social life is the activity of
Self-government is the purpose of political association, and only rationally
deliberating linguistic agents have a stake in the activity of self-government.
But talk of self-government cannot justify the capacity contract. After all,
the linguistic agents whom Bauböck empowers to rule society are not just
governing themselves. He is not proposing that linguistic agents form a club
that would govern its members according to their own rules about deliberation,
in the way that a chess club might govern itself. Rather, he is saying that
linguistic agents have the right to exercise state power, and thereby
govern society. The power of the state, which on a social membership model
belongs to all members of society, becomes the property of the subset of
linguistic agents.21 In this sense,
the capacity contract does not grant a right of self-government to linguistic
agents, but something quite different – it grants a right to rule over
others. (The right to rule over others is in fact at the heart of the capacity
contract.) It is difficult to see how this can be justified in terms of a right
So what, then, explains this “persistent” and
“stubborn” clinging to the capacity contract? There are undoubtedly
several factors, which we discuss elsewhere (Donaldson and Kymlicka forthcoming). But it is worth noting that the historical
origins for the capacity contract are fundamentally illiberal and undemocratic.
For Aristotle, the function of politics was to display a series of gender,
class, racial and species supremacies: politics was where men revealed
themselves to be superior to women, the propertied revealed themselves to be
superior to slaves, the Greeks revealed themselves to be superior to
barbarians, adults revealed themselves to be superior to children, and humans
revealed themselves to be superior to animals. This affirmation of hierarchy,
and exclusion of the inferior, was the point and purpose of politics: politics
was where we display our exalted status. For Aristotle and his latter-day
acolytes, mere members of society are just the backdrop or the stage on which
exalted agents exercise their unique (male, propertied, Greek, human) powers.
Medieval and Renaissance philosophers maintained this perfectionist
preoccupation, although they tied it to Christian doctrines about humanity's
distinctive place in divine creation: organizing politics around rational
speech appropriately marked our favoured position as made in God's image, above
Needless to say, there is nothing liberal or democratic in any
of this, and most contemporary political theorists officially disavow this
Aristotelian legacy. For contemporary theorists, the function of politics is
not to express species essences or divine providence, but to ensure that the
distribution of the benefits and burdens of social cooperation is just, and to
ensure that the exercise of political power over the governed is legitimate.
But if so, then it is very difficult to understand why we should maintain the
capacity contract, rather than rejecting it as a deeply illiberal inheritance.
Both justice and legitimacy would seem to push us in the direction of the
membership model of citizenship. Children, people with cognitive disabilities
and domesticated animals may not engage in the forms of rational speech that
Aristotle and Aquinas viewed as definitively human, but they clearly comply
with social norms and carry the burdens of social cooperation, and they are
clearly subject to the exercise of political power. They therefore have a stake
in shaping our social norms, and if our concern is with justice and legitimacy
rather than with exalting species essences, these facts of social participation
and political subjection should be sufficient to warrant rights to participate.
As we discussed earlier, this is in fact the direction that real-world reforms
are taking, as new models of how to enable the engagement of children, people
with cognitive disabilities and domesticated animals are continually being
On Bauböck's model, by contrast, our duty to support and
enable the political participation of our fellow members of society depends on
whether they fall above or below some stipulated threshold of cognitive or
linguistic competence. For those who fall above, we have strong duties not just
to permit the exercise of their linguistic agency, but also to support it,
including translation services or Braille or hearing aids, as well as rights to
information and access. But if they fall below this threshold, then it appears
we have no obligation to make any effort to solicit their subjective good or to
be responsive to it when making collective decisions. Above the threshold, they
are active citizens with strong claims to public support for their democratic
agency; below the threshold, they are passive wards with no claims on public
support for their democratic agency.
It is difficult to see any justification for this differential
treatment.22 The linguistic and
cognitive capacities of society's members vary across multiple dimensions, all
of which are continua. In our view, a truly democratic society would seek to
support the political agency of all its members, wherever they fall on these
continua, rather than finding ad hoc or arbitrary thresholds to empower some
and exclude others.
The capacity contract is not only arbitrary, but also generates
politically pernicious myths and prejudices. Since every long-term member of
society who complies with social norms and bears the burdens of social
contribution would seem to have a prima facie claim to democratic citizenship,
defenders of the capacity contract are prone to trivialize the contributions,
burdens and the extent of their political subjection of the excluded. In order
to justify excluding children, people with cognitive disabilities and
domesticated animals from democratic citizenship, there is pressure to hide the
unpleasant truth about the caste and metic status of these members of our
society. Some theorists claim that children and people with cognitive
disabilities inhabit a “separate but equal”, or even a privileged,
status. Theirs is allegedly an honoured and protected status of social
membership, freed from the burdens and responsibilities of democratic
citizenship. This is reminiscent of old anti-suffragist arguments about how
much women (allegedly) stood to lose by coming down off their (supposed)
pedestals to be recognized as grubby democratic citizens. In all of these
cases, the commitment to exclude or segregate certain members from citizenship
generates cognitive pressure to redescribe their exclusion as a beneficial form
of pastoral care and protection, ignoring the realities of burdens, harms and
We can see this peeking through in Bauböck's text, where he
says that “there is nothing degrading about treating children as
children” (p. 46). But we would argue that “treating children as
children” is degrading if it means subjecting them to arbitrary power, or
trivializing their responsibilities, their work and their contributions, as is
widespread in our society (Such and Walker 2005; Lister 2007).23 Moreover, membership in transgenerational political
communities is very much part of the “animal condition”, despite
Bauböck's assertion otherwise (p. 47). Domesticated animals are almost
certainly more subject to political regulation than humans: where they can live
or move, what they can eat, whether they can reproduce, and when and how they
are killed, are all minutely regulated by the state (Smith 2012).
That defenders of the capacity contract systematically obscure
the realities of power, burden and contribution should not be surprising, since
these are the bases of claims to citizenship on the membership model. Since the
membership model says that individuals are owed citizenship in virtue of
enduring participation in schemes of social cooperation that are subject to
collective governance, defenders of the capacity contract are more or less
compelled to deny or trivialize the extent to which children, people with
cognitive disabilities and domesticated animals are subject to power or engage
We can't review here all of the intellectual hoops and
gymnastics that defenders of the capacity contract undertake to justify their
position,24 but we would suggest
the time has come for political theorists to simply abandon the capacity
contract. Given the stubborn persistence of the capacity contract, and the
cultural and intellectual barriers standing in the way of dismantling it, we
are not surprised by its appearance in Bauböck's essay. And we welcome the
fact that, unlike most political theorists, he at least flags the issue as one
that needs to be acknowledged. More importantly, we believe that Bauböck's
work in articulating multiple principles of democratic inclusion tied to
multiple types of polity could prove extremely fruitful for thinking about the
democratic challenges facing more-than-human political communities. Different
kinds of human and animal communities inhabit overlapping territories in
complex ways, without necessarily forming shared societies. For example, many
non-domesticated animals have interests that are affected by our decisions
while not being subject to human governance to any significant degree, let
alone being part of a shared demos. Some animals living in remote wilderness
areas, for example, are not subject to coercion, but may be affected by human
activity such as pollution, climate change or aircraft flight paths. We have
duties to take their affected interests into account, but not to include them
in the shared demos. Other non-domesticated animals, by contrast, are subject
to extreme state violence and coercion. Consider the rodents, pigeons, foxes
and countless others who are poisoned, spiked, gassed, shot and ripped apart
according to the laws of the human community. As Bauböck notes, justice
demands that those subject to the coercive force of the law must share equal
protection of the law – and we would argue this should apply to urban
wildlife – but here again, being subject to the law does not
automatically translate into membership in the demos. Domesticated animals, on
the other hand, are genuinely members of our society, and so have a genuine
stake in membership in a mixed human–animal political community (as we
In short, once divorced from the capacity contract,
Bauböck's distinctions between “all affected interests”,
“all subject to coercion” and “all citizen
stakeholders” can help us to better understand the diverse patterns of
human–animal political relations. Furthermore, Bauböck's concept of
nested polities can help us address some of the challenges raised by the fact
that humans and non-human animals share spaces and territories in ways which do
not neatly line up with the nature, extent or density of governance and social
relationships. He may or may not approve, but we will certainly make use of
Bauböck's nuanced theory of the complex matrix of polities and democratic
principles in order to push forward a new model of democracy that includes all
members of society, in all their profuse diversity.
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1 We realize that “linguistic agency” can be
defined more expansively, in ways that would recognize many animals as
linguistic agents. As discussed below, members of these groups are certainly
communicative. We are using the phrase “linguistic
agency” to isolate the capacity shared by many humans, and no
non-human animals of which we are aware, for engaging in a process of
discursive reason-giving about abstract propositions.
2 We take the phrase “capacity contract” from
Clifford (2014). The contract language is
misleading if it suggests a voluntary agreement. It is used here, rather, in
the same sense that theorists talk of “the racial contract”
(Mills 1997), “the sexual contract”
(Pateman 1988) or the “settler contract”
(Nichols 2013): as a deeply embedded social logic
that structures our institutions and practices in hierarchical terms.
3 Toby Rollo suggests that the tension between the
capacity contract and the membership model is one of the most
“intractable problems in political theory” (Rollo 2016: n.p.).
4 Moreover, taken to its logical conclusion, the all
affected principle seems to entail a single global demos. After all, my
interests are affected, not just when choosing between two options, but also
when those options themselves are selected to be the focus of choice: what
Bauböck calls the “agenda-setting” power (p. 22). And if we
have a right to be part of the demos whenever agenda-setting powers might
affect us, we quickly reach the idea of a single global demos – see
5 See Bauböck pp. 25–26 for helpful
suggestions about the appropriate remedy for these external impacts.
6 And on the other hand, it seems to provide a pretext
for colonization of other societies, so long as one then grants citizenship
to the colonized.
7 The locus classicus for this social membership model is
Carens (2005, 2013 ).
8 Some commentators argue that this picture of the
importance of membership in bounded societies is increasingly obsolete in an
age of mobility, but we share Bauböck's view that individual mobility
is possible and valuable because it takes place on a terrain structured by
the operation of bounded societies with a “relatively sedentary core
population” (p. 17). In this sense, the enduring importance of social
membership is one of the “circumstances of democracy” (pp.
9 Including in his commentary on Joseph Carens in
10 The following section draws on ideas we have developed
in other work (e.g. Donaldson and Kymlicka 2016a).
11 And with ageing populations, living longer lives, the
number of people with various forms of dementia will increase.
12 Commentators often talk about a “3P” model
of citizenship rights – protection, provision and participation
– which should apply to all members of society (see, for example,
Quennerstedt 2010). In reality, most
children and people with cognitive disabilities are at best accorded a 2P
model, without participation rights. And since domesticated animals have the
status of property in law, they are denied all three, lacking legal
recognition of personhood or membership even in the thinnest sense.
13 For a detailed defence of this argument, see Donaldson
and Kymlicka (2011: chs 4 and 5) and Kymlicka
and Donaldson (2014).
14 Among many such examples, see Hobbes: “Over natural fools, children, or madmen there is no law,
no more than over brute beasts; nor are they capable of the title of just or
unjust, because they had never power to make any covenant or to understand
the consequences thereof” (Leviathan II.xxvi.12).
15 See note 12 above for the 2P versus 3P model of
16 For a similar manoeuvre of defining democratic
citizenship in terms of the capacity for linguistic agency but then granting
honorific citizenship to others, see Hinchcliffe (2015). Bauböck's decision to extend the honorific
“citizen” to children and people with cognitive disabilities,
even though he denies they are members of the demos, muddies the conceptual
clarity of his argument. Having introduced this distinction half-way through
the text, one would need to go back through his entire text and ask, each
time that the word “citizen” appears, whether he is referring to
“mere” citizenship without rights to participation, or to the
full democratic citizenship that entails membership in the demos, or to
both. We leave this as an exercise for the reader, but we think several
passages trade on the ambiguity.
17 Aristotle, Politics, in Hutchins (1987: 446). On the foundational significance of this
view for the Western philosophical tradition, see Franklin (2011), Steiner (2013) and
18 We should note that while we endorse these calls to
conceive “more-than-human” publics, we do not endorse the
“new materialist” or “actor network theory” approach
which elides the distinction between wilful agents and non-sentient life
forms (e.g. Latour 2005; Bennett 2009). Our remarks here are restricted to non-human
animals. And while many non-human animals have affected interests that need
to be taken into account, we believe that it is primarily domesticated
animals with whom humans share the “circumstances of democracy”,
including the fundamental facts of sociability and capacity for
19 See Donaldson and Kymlicka (2016b) for a more systematic review.
21 Bauböck says that “it is the larger
transgenerational society that collectively governs itself and not the
subcategory of adults who have the capacity … to vote or hold public
office” (p. 46). But in fact he provides no account of how anyone
outside that subcategory can take part in collectively governing society,
and on the contrary he explicitly states that only this subcategory forms
the demos. Here again, the conceptual argument is muddied by the
equivocation between mere citizens and democratic citizens.
22 This arbitrary differential treatment reveals the
fallacy in Bauböck's claim that we need to keep animals out of
citizenship in order to preserve a commitment to equality
(“challenging this [human–animal] political boundary …
might do great harm to the idea of equality of membership that is
fundamental to democracy”, p. 47). This not only ignores the reality
that there are already plural and group-differentiated forms of membership,
but it also ignores the fact that it is a commitment to the capacity
contract that ruptures the idea of equality of membership. The capacity
contract preserves the appearance of equality of membership by expelling all
members who do not fit a pre-ordained vision of citizenship that was defined
by and for some subset of members. As we have seen, it preserves an image of
equality in self-government by granting rights to govern over others. This
is not self-government by equal citizens: it gives some the right to rule
over themselves and others. This is a Procrustean victory for equality.
23 Bauböck acknowledges that “treating children
as children” may include “responsibilities to allow them to
participate in all decisions concerning them” (p. 46). But, as we
noted earlier, he provides no account of how anyone other than neurotypical
adults can take part in collectively governing society (see note 21 above).
In any event, his apparent exception for children rests on the logic that we
owe them participation not in virtue of what they are – not in virtue
of their interests or membership as children – but in virtue of
what they will become (adult citizens). This privileging of children's
“becoming” over their “being” is precisely the idea
that children's rights advocates rail against, since it accords no
recognition of the importance of the quality of a child's life as such, in
their childhood years (see Arneil 2002). And if
we accept that children are owed participation because of their being, not
just their becoming, then we have no grounds to exclude animals.
24 Of course, one obvious explanation for its persistence
is that political theorists have a pre-theoretical commitment to excluding
non-human animals from the demos, in order to continue to enjoy the
“flow of pleasures” that is generated by their caste status
(Wadiwel 2015), and simply work backwards to find
theoretical premises that will generate this result, regardless of the
tensions and contradictions this creates for their theories. Whether animals
are to be included or excluded is not something to be resolved by appeal to
independently justified political principles: rather, we select political
principles on the basis of whether they will keep animals out.