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142 Chapter 5
migrants are granted a progressively wider range of civil, social and
political rights and entitlements by the receiving state. According to Crisp,
the test for successful legal integration, especially in the case of refugees, is
whether migrants have acquired permanent residence status and,
ultimately, through naturalisation, full citizenship and voting rights in
their host country. 2
Against this standard model of local integration, it is important to
insist (with Hannah Arendt and two of her most perceptive readers, Jean-
François Lyotard and Giorgio Agamben) that the process of legal
integration should not simply be equated with naturalisation or reduced to
the gradual acquisition of traditional nation state citizenship. 3 The idea of
legal integration should rather be theorised as a disruptive and critical
notion of disintegration, involving initially what Benhabib calls the
gradual ‘disaggregation of citizenship’. 4 Benhabib uses this phrase to
describe the process whereby the cluster of rights that was traditionally
associated with nation state citizenship is gradually broken apart and then
distributed right by right to non-citizen migrants as well.
The disaggregation of citizenship is already reflected in the South
African Bill of Rights in the fundamental distinction between
constitutional rights that attach to ‘every person’ and constitutional rights
that attach only to ‘citizens’. This distinction has given rise to a number of
important Constitutional Court cases. Most fundamentally, in Lawyers for
Human Rights v Minister of Home Affairs, the Court rejected the claim by the
government that arriving refugees, who were not yet legally admitted into
2 Crisp (n 1 above) 1.
3 H Arendt The Jew as Pariah: Jewish identity and politics in the modern age (1978) 55
famously criticised the desire of Jewish refugees during World War II to present
themselves to their host countries as perfectly assimilated, prospective and patriotic
citizens. Arendt found the desire to take refuge in nation state citizenship disconcerting,
because it involved a lack of political courage to fight for a change in the social and legal
status of stateless Jews in Europe. She sought to counter the problematic Jewish identity
of the newly assimilated social parvenus by embracing the Jewish counter-tradition of
conscious social pariahs or outlaws (represented by Rahel Varnhagen, Franz Kafka and
Charlie Chaplin). In the process, Arendt famously remarked that these conscious
outlaws gained the world of politics and represented the new political avant-garde of
Europe. J-F Lyotard Toward the postmodern (1993) 144 welcomes the fact that here
Arendt links politics to a radical critique of representation (the Jewish God as Word
that de-installs) which leaves the subject in a political state of ‘being-together without
roots’, a togetherness that behaves according to the formal demands of (aesthetic)
judgment alone. G Agamben Means without end: Notes on politics (2000) 14 equally
celebrates Arendt’s critique of the paradigm of nation state citizenship as alternative to
the statelessness of Jewish refugees. Agamben claims, with Arendt, that the stateless
refugee represents the central figure of our political history. He actively calls for a
process by which each citizen recognises the ‘refugee that he or she is’ and gradually
turns him or herself into a denizen of cities that perforate and deform the space of the
nation state. I return later in this essay to this reinterpretation of statelessness, not as a
temporal abnormality, but as the precondition for the political survival of humankind.
4 S Benhabib ‘Twilight of sovereignty or the emergence of cosmopolitan norms?
Rethinking citizenship in volatile times’ in T Faist & P Kivitso (eds) Dual citizenship in
global perspective (2007) 247 248; and, in general, S Benhabib Another cosmopolitanism
(2006).