‘Cultural Defence’ of Nations: Cultural Citizenship in France, Germany and the Netherlands

• Author: Liav Orgad
• DOI: http://doi.org/10.1111/j.1468-0386.2009.00487.x
• Date: 01 November 2009
• Published date: 01 November 2009

eulj_487719..737

‘Cultural Defence’ of Nations: Cultural

Citizenship in France, Germany and

the Netherlands

Liav Orgad*

Abstract: This article presents a new development in European immigration policy.

Focusing on France, Germany and the Netherlands, I describe a process of ‘culturalisa-

tion’ of admission and citizenship rules in Europe intended to reinforce liberal values and

national identity. I then suggest a two-stage set of immigration-regulation principles: in

the first stage, immigrants would have to accept some structural liberal-democratic prin-

ciples as a prerequisite for admission. While Europe has criteria for state admission,

anchored by the Copenhagen Criteria, Europe has not yet formalised definite criteria for

immigrants’ admission. In the second stage, as part of the naturalisation process, immi-

grants would be expected to recognise and respect constitutional principles essential for

obtaining citizenship of a specific state. I call this concept ‘National Constitutionalism’.

I Introduction

Is culture a legitimate criterion for regulating immigration and access to citizenship?

This question has become a European dilemma. On the one hand, states regulate

immigration and access to citizenship by means of traditional criteria, such as public

health, public order and public safety. On the other hand, it is often presumed to be

illegitimate to use criteria such as race, ethnicity and religion. Because culture is not

firmly embedded in either category, this article questions whether culture should be

deemed a legitimate immigration criterion. On the whole, my argument does not

dismiss culture as a legitimate criterion for immigrant selection, yet supports a very

narrow version of culture.

The article proceeds as follows: section II describes the new challenge of immigration

in the light of changes in immigration patterns and in the European society. It contin-

ues with a discussion of the cultural clashes that these patterns have instigated and how

radical religion and radical liberalism reinforce these clashes. A review of the current

challenge will help us to understand the background against which Member

* Visiting Researcher, Harvard Law School; LL.D. Candidate, LL.M., Hebrew University of Jerusalem;

LL.M., Columbia Law School; LL.B., B.A., The Interdisciplinary Center (IDC) Herzliya. I am indebted

to Christian Joppke, Barak Medina, Amnon Rubinstein and Gabriele Thoens for insightful observations

and suggestions. A longer version of the article appears in 58(1) American Journal of Comparative Law

(2010).

European Law Journal, Vol. 15, No. 6, November 2009, pp. 719–737.

© 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

States have lately redesigned their immigration laws to cope with increasing numbers of

culturally-diverse migrants.

Section III describes new immigration policies in France, Germany and the Nether-

lands. I show how these countries’ immigration laws have increasingly turned into a

culture-based concept. First, these reforms demonstrate a move from voluntary to

compulsory cultural assimilation. Second, they illustrate a trend away from cultural

assimilation as a prerequisite for access to citizenship toward it being a prerequisite for

admission. Third, the concepts ‘culture’ and ‘assimilation’ are shifting towards a

broader scope. Fourth, assimilation is being transformed from a means of social

inclusion into a means of overt exclusion of unwanted immigrants. Cultural restrictions

have been introduced in response to pressures to limit immigration in general, or

certain kinds of immigrants in particular, and they have become a pretext for the social

engineering of European demographics. Lastly, cultural restrictions are being extended

beyond foreign workers to family members.

Section IV touches upon the question of whether culture should be a criterion for

immigrant selection. My approach stands for a narrow concept of culture under which

admissions criteria should be based on principles of political liberalism, which are not

a culture-based concept but a system of principles governing behaviour in liberal

democracy. Similarly, citizenship criteria should be based on constitutional principles

of a particular state; these principles are generally not culture-based, even though they

may include some cultural elements as long as these elements become part of the

national culture.

Section V shows how some of the cultural restrictions imposed on immigrants in

Europe undermine the very values they seek to protect. I argue that forced integration

has to be variously applied according to different visa status: family members, refugees

and foreign workers. I further argue that cultural restrictions have to be implemented

differently with respect to admission as opposed to naturalisation. Furthermore, while

it may be legitimate to request immigrants to respect certain liberal principles, it would

be less legitimate to demand that immigrants adhere to, or identify with, those prin-

ciples. Finally, while it may be legitimate to focus on constitutional principles, it would

be less legitimate to focus on popular culture and personal beliefs.

II The New Challenge of Immigration

A Liberal Democracy and Immigration

People have always moved from one place to another to obtain jobs, improve their

lives, join families and escape conflicts. But the contemporary phenomenon of immi-

gration is a new challenge. Changes in immigration patterns are a major reason to this

new challenge. First, the number of immigrants has almost tripled in the recent

decades. Technological changes in global transportation and communications facilitate

easier and cheaper movement between states and continents, culminating in the largest

wave of immigration in history. In the 1960s, the world had 75 million immigrants;

today, the number is 191 million—three per cent of the world’s population—and this

number will most likely continue to grow.1Second, the composition of the current wave

1Trends in Total Migrant Stock: The 2005 Revision (The United Nations, 2005), 1.

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