• 1 P.-J. Proudhon, Théorie de la propriété, Paris, L’Harmattan, 1997, p. 50.

Il faut, pour que la propriété entre dans la société, qu’elle en reçoive le timbre, la légalisation, la sanction. Or je dis que sanctionner, légaliser la propriété, lui donner le caractère juridique qui seul peut la rendre respectable, cela ne se peut faire que sous la condition d’une balance, et qu’en dehors de cette réciprocité nécessaire, ni les décrets du prince, ni le consentement des masses, ni les licences de l’Église, ni le verbiage des philosophes sur le moi et le non-moi n’y servent de rien.1

• 2 C. Colliot-Thélène, Le commun de la liberté. Du droit de propriété au devoir d’hospitalité, Paris, (...)
• 3 C. Colliot-Thélène, La démocratie sans “demos”, Paris, Presses universitaires de France, 2011.

3It seems to me that it is important to stress the strong continuity there is between Le commun de la liberté,2 Colliot-Thélène’s previous book, and La démocratie sans “demos”.3

• 4 Ibid., p. 10.

4The core purpose of Le commun de la liberté was to offer its reader a rendering of democratic theory rid of the ideal of “self-legislation”. This is indeed a bold project. At the very beginning of La démocratie sans “demos”, Colliot-Thélène characterised self-legislation as a mystification. She went so far as to compare its role in democratic theory with that played by the divine origin of power in absolutist theories.4 This is said to be so because self-legislation leads unavoidably to the creation of a mask, the mask of the demos. Something which is to be regretted for two reasons. The first is because it results in cloaking in plain sight the structural difference between the rulers and the ruled, that is, hiding the fact that not all rule, but only some rule. The second is that a demos-based democracy relies on the ludicrous assumption that political communities are closed communities, something which was never true and is even less so now. Founding politics on purely abstract ideas of the collective, even if in its civic version of the demos, leads objectively to create the room for exclusionary politics and policies. Or what is the same, self-legislation leads to the mask of the demos, and the mask of the demos seeds the grounds of exclusionary politics and policies, even when such mask is not combined with exclusionary, pre-political elements (the ethnos). This is objectively so, no matter what are the intentions of the advocates of this or that demos-based theory of democracy.

• 5 J. Israel, A Revolution of the Mind: Radical Enlightenment and the Intellectual Origins of Modern D (...)

5Both La démocratie sans “demos” and Le commun de la liberté, but very particularly the latter, articulate a powerful defence and vindication of the politico-philosophical project of the radical enlightenment, as famously and perceptively defined by Jonathan Israel.5 To put it differently, they make the case for a radical transformation not only of the forms of politics, including its institutional structures, but also (and mainly) of its substantive matter and content. This implies that Le commun de la liberté appeals to a transformation of the social and the economic structures, that is, the very way in which individuals relate to each other concretely in the “in-between” that is politics.

• 7 See F. D’Agostino, Chomsky’s System of Ideas, Oxford, Clarendon, 1986, p. 11-12.
• 8 Also, as we will see, citizenship without ethnos, and property without capitalism and without capit (...)

8First, this entails a radical vindication of the centrality of the individual in politico-philosophical and legal terms, in line with the view of what has been aptly called “methodological individualism”.7 Our political theory has become so confused that it is necessary to immediately add that such a defence is not concomitant with any form of reductionist, even less “unencumbered”, “self-regarding”, egotistic individualism, but rather one which comes hand in hand with a deep commitment to equal liberty. A commitment which necessarily relies on the predisposition towards sympathy and benevolence which bonds individuals into societies, associations and groupings. Or what is the same, Colliot-Thélène’s individual is a political animal, but one whose polity fully respects the freedom and dignity of each of its members (and, crucially, hosts, including all forced migrants). This political capacity is indeed what accounts for the very possibility of individuals engaging into democratic politics without the need of clothing their bonds with the “mask” of the demos.8

• 9 C. Colliot-Thélène, Le commun de la liberté…, p. 61.
• 10 Ibid., p. 68.
• 11 See paradigmatically N. MacCormick, “Children’s Rights: A Test-Case for Theories of Right”, ARSP: A (...)

9Second, the grammar of democratic politics without the demos is structured around rights, not duties. This is essential not only in theoretical terms, but also in political terms. On the first account, the very point of discussing whether Immanuel Kant’s theory of rights is not duty-based is precisely to show that the ultimate foundation of rights is not to be found in any duty. The principle of which the categorical imperative is an expression, Colliot-Thélène emphasises, “is the necessary representation of what is proper to the human being, namely her freedom”.9 Indeed, Kant’s objective is to render intelligible “the specific modality of a constraint compatible with freedom”.10 At the beginning, therefore, we have freedom, and therefore, we have the creative possibilities of freedom, also in political terms. On the second account, structuring the grammar of politics around the equal rights of all guarantees that rights keep their critical edge. In such a way, we pre-empt the instrumental use of some rights (property as a means of exploitation of others) to defend the status quo. In so doing, Colliot-Thélène vindicates a long tradition of pre-post-modern thought which assigns primacy to rights while emphasising the importance of the duties which render possible the equal enjoyment of rights, from Herbert Hart and Norberto Bobbio to Neil MacCormick.11

• 12 A. Shachar, The Birthright Lottery: Citizenship and Global Inequality, Cambridge, Harvard Universit (...)

10Third, Colliot-Thélène defines the project of radical enlightenment by reference to the material and not merely formal and institutional dimension of democracy, by means of focusing on two of the main causes of discrimination and exclusion, namely, class / socio-economic position and nationality (“the birthright lottery”12).

• 13 C. Colliot-Thélène, Le commun de la liberté…, p. 136. The term “cannibal capitalism”, of Weberian a (...)
• 14 J. Locke, Two Treatises of Government [1689], P. Laslett (ed.), Cambridge, Cambridge University Pre (...)
• 15 R. Nozick, Anarchy, State and Utopia, New York, Basic Books, 1974, chapter 7. For the right-based c (...)

11Her reading of Kant, contained in chapters 1 and 2 of Le commun de la liberté, rescues the normative potential of Kant’s theory of property from Kant’s specific rendering of it in The Metaphysics of Morals, while her reading of Karl Marx’s critique of property in chapter 3 not only shows the way in which Marx’s thought evolves over time (from the Jewish Question to Capital), but also distils the core of his critique, which consists in the elucidation of what we may refer as the cannibalistic proclivities of capitalistic property, or what is the same, its devouring through infinite and ever greater process of accumulation the very societal and normative foundations of the institution of property.13 This by itself implies a major contribution to both the critique of property as an exclusionary device (la propriété-vol, to say it with the magnificent slogan coined by Pierre-Joseph Proudhon in What Is Property?, the first of his memoirs on property) and the defence of a conception of property as enabler of freedom (la propriété-liberté, as also suggested by Proudhon in the set of memoirs on property, written from 1840 to 1842, and later in his Théorie de la propriété, only published after his death). Democratic property, or what is the same, property divorced from the monarchical principle, is to be understood as a claim that ensures access to the commons. Not as a mere desideratum, but in tangible terms, providing a real guarantee of access to the resources needed so that all have an equal enjoyment of their freedom. This implies not only a radical critique of really existing institutions of private property, but one that is based on the fundamental claim that such a practice is simply incoherent with our fundamental political understandings and commitments. On the one hand, the title to property is said to be gained through labour, i.e. through the blending of one’s labour with material things, which would become in such a way the property of the labourer. On the other hand, the way in which bourgeois property actually operates results in the very expropriation of the labourers. This tension is clearly at work in the paradigmatic defence of private property, contained in John Locke’s chapter 5 of the Second Treatise of Government.14 The connection between property and labour critically depends on the limits to appropriation which Locke introduces through the so-called provisos: one’s appropriation must not foreclose the possibility of other members of the polity satisfying their material needs through further actions of appropriation; and one cannot appropriate what is not in a position to consume. However, once money is introduced in the second half of the chapter (something unavoidable if Locke wants to keep the argument relevant: which capitalist economy can function without money, more specifically without a form of “bourgeois” money such as Locke’s?), these provisos basically lose any bindingness, not least because the “openness” of the system to new appropriation is said to be satisfied through the new frontier of financial assets. As a result, there is basically no longer any limit to appropriation. But once this is the case, a fatal divorce of property and labour materialises. The title of property becomes the legal technology through which those who do not work, but hold capital via money, can acquire more money (the money that breeds money), extracting it via waged labour or financial mediation from the actual workers. Attempts at updating Locke (Robert Nozick in his Anarchy, State and Utopia) do not so much solve the quandary as provide further layers of window-dressing in the form of a theory which pretends to offer a “rights-based” defence of a neoliberal socio-economic vision which unavoidably leads to expropriation with the help of the legal technology of capitalistic property.15

• 16 C. Colliot-Thélène, Le commun de la liberté…, p. 155 sq.
• 17 For a similar critique of the welfare state as a managerial device which ends up licencing corporat (...)

13There is a very powerful and strong critique of the welfare state16 to the extent that it is intended as an instrumental social pacifier, as the very way of stabilising a non-democratic political order, a society in which there is no coordinated exercise of public autonomy, but rather monarchical or oligarchic domination. It should be obvious that such line of criticism is not neoliberal, ordoliberal or neo-ordo-liberal. Rather it is a radical critique based on a commitment to equality and solidarity that sets as its target the managerial welfare state, which depletes the solidaristic resources of society.17 Her argument calls, as much as with democracy, to recuperate the solidaristic impulse at the core of any form of social state, including the welfare state, and the techniques and legal technology of mutualism and solidarity. In that regard, the indivisibility of rights emphasises the importance of social cohesion, but renders clear that bread and circus are not only bad replacements of democracy, but that at the end of the day the attachment to bread and circus tends to result in, sooner or later, bread and circus not being there.

• 18 See Q. Slobodian, Crack-Up Capitalism: Market Radicals and the Dream of a World without Democracy, (...)

16First we find those who have tried to hijack the radical enlightenment project and turn it into the normative discourse entrenching the status quo, that is, entrenching the establishment. Conservative renderings of the enlightenment, which assume that it would suffice to change political forms without changing socio-economic realities, are blended into visions embedded in pre-modern understandings. This facilitates the reverse-engineering of the rights project and discourse, so that attacks on equal liberty are clothed in the language of rights. If On the Jewish Question keeps on being a highly relevant text, it is because we are back to a situation in which the right to private property (now specified as the right to free movement of capital) is used to hide in plain sight exploitation (and therefore alienation) through waged labour and through capitalist money. This is the core move underpinning the writings of what we may call the neo-ordo-liberals, the works of Friedrich Hayek, Walter Eucken, Wilhelm Röpke, Robert Nozick or James Buchanan. A rhetoric that is getting more radicalised as time passes, with a resurrection of anarcho-capitalistic discourses.18

• 19 See S. Moyn, Humane: How the United States Abandoned Peace and Reinvented War, New York, Farrar, St (...)

17By the same token, theories of rights, inextricably linked with forms of federalism that deny that war is an intrinsic part of human life, and that permanent (eternal) peace is a feasible project, have been turned upside down and become the very justification of power politics, providing a peculiar new twist to theories of just war (a marriage made in hell between the language of rights and the old doctrines of just war). This was in the making since 1945, but became obvious in the aftermath of the Vietnam War, and operational during the bombing of Kosovo in 1999 and in the run up to the third Iraq War of 2003.19 A similar line of reasoning could be developed regarding how the discourse of rights is being used to oppose that civilisational achievement, even if precarious and insufficient, which is the right of asylum. Instead of an instrument of emancipation, rights discourses run the risk of becoming an instrument at the service of reaction, of counter-revolution. In brief, the source of reasons with which to justify not tackling the injustices characteristic of our socio-economic order. This means that rights have been placed at the service of hierarchy, not autonomy; subordination, not emancipation; exploitation, not liberation. That is a first and fundamental reason to vindicate rights, starting from the denunciation of these instrumental, manipulative, parasitic uses of rights, tendencies clearly at work in the characterisation of the rights of corporations as fundamental rights.

• 20 G. Kennedy, Diggers, Levellers and Agrarian Capitalism: Radical Political Thought in Seventeenth Ce (...)
• 21 O. Chaïbi, Proudhon et la banque du peuple: 1848-1849, Paris, Connaissances et savoirs, 2010.
• 22 M. Goldmann, A. J. Menéndez, “Weimar Moments: Transformations of the Democratic, Social, and Open S (...)

21As already pointed, Le commun de la liberté offers a combined reading of Marx and Kant, but it seems to me it is worth placing the book in the wider context of the 19^th and 20^th-century works of political philosophy which aim at finding an alternative conception of property (and of money). To put it differently, property has been more frequently reimagined that we have dared to think. Therefore a key part of the new theorising of property must consist in taking systematic stock of the political and moral knowledge implicit in such practices. Among the less frequently considered reference points, I would mention the levellers and the diggers in the English Revolution20 and Proudhon, to whom I have already made references in this article. Next to his memoirs on property and his Théorie de la propriété, it is high time we read in earnest his fundamental writings on money and on the “bank of the people”.21 But we have to consider not only a number of social movements and authors, but also the collective moral knowledge, if I am allowed the expression, reflected in the 20^th-century constitutions which are part of the long Weimar constitutional moment.22 To summarise such practices is impossible in this article. What can be done is to consider the two axes around which such new practices have emerged. The first concerns the redefinition of property as a relationship between persons which has implications for the allocation of rights over goods, instead of a relation between the property owner and the objects of property. This change of focus is fundamental if we want to incorporate the key insights of the constitutional doctrine of the “social function of property”, or the affirmation of the importance of the eminent domain of the polity over the key sources of wealth in a given socio-economic structure. The second axis concerns the need of taking systematic stock of the legal techniques through which property has been geared towards the commons, not least through the drastic limitation of the “absolute” character of property by means of increasing the number of those with different claims on property objects (think about co-determination practices in the government of enterprises), and the limitation of the “savage” powers of the property owner (from the control of movements of capital to the setting of limits to inheritance or designing forms of money with an expiry date).

• 23 Joseph Alois Schumpeter’s hero was a man from the corporation, even if an exceptional individual; o (...)
• 24 C. Lapavitsas, Marxist Monetary Theory, New York, Haymarket Books, 2017.
• 25 C. Lapavitsas, Profiting without Producing: How Finance Exploits Us All, London, Verso, 2013.
• 26 S. Eich, The Currency of Politics: The Political Theory of Money from Aristotle to Keynes, Princeto (...)

22But there is more. The very “phenomenology” of money has changed, for the simple reason that capitalist property is now, above all, financial property. True, the transformation is far from completely new. By the time that Marx painfully published the first volume of Das Kapital (1867), the legal technology of the société anonyme was no longer exceptional, and had become the decisive form through which capital organised itself. The myth of the individual entrepreneur persisted, albeit radically transformed, as the captain of an organisation, of, indeed, a corporation.23 Such corporations became the materially decisive dramatis personae of the economic play. By the same token, finance was at the core of Marx’s analysis, and indeed contemporary Marxists analyses of money take cue from the (less studied) Marx’s writings on the subject.24 What was a trend in the last third of the 19^th century has become a state of affairs impossible to miss now, with the majority of wealth being clearly financial and money transformed into fully fiat money (since the dollar, the world reserve currency was definitely de-anchored from gold in 1971 and the creation of money has largely been privatised through the deregulation of financial institutions). Political theory needs to think through all the implications these changes have. In critical terms to the extent that, while there is no doubt that exploitation through waged-labour remains a very tangible reality, exploitation through financial mediation and through the very processes through which capital gets invested has become a decisive way in which capital breeds capital.25 We need to rethink money alongside property.26

• 27 We have wasted decades in that regard. See letter from Sicco Mansholt to Franco Maria Malfatti (Feb (...)

23Finally, there is one topic which Colliot-Thélène only touches en passant, and which however seems to me to be pressing to incorporate to any radically enlightened conception of property. Namely the relationship between the preservation of the environment (essential for the continuation of the human experiment on earth) and property. If the democratic and social state entails a move from the individual to the person, in full respect of normative individualism, we are in urgent need of adding to that person a clear normative profile which defines her relationship with nature (which is, no doubt, a most debated concept in philosophical terms). I have some doubts that this can be done merely by means of extending rights to animals, or to all living beings, or to the Earth as such (although this is not unprecedented, think for example about the Constitution of Bolivia). The question is not an easy one, but it seems to me that we run the risk of losing more by extending too quickly the holdership of rights to the environment and to animals than what we would gain by doing so. What matters is that climate change is a powerful reminder of the finite character of the planet, and the very tangible limits that there are to a relationship of human beings in balance and equilibrium with our natural environment. It seems to me that a radical enlightened conception of property has to take sides with (happy) degrowth, insisting on the need of taking very seriously the distributional justice of slowing down the use of natural resources.27

• 28 C. Colliot-Thélène, Le commun de la liberté…, p. 228.
• 29 This is clearly the policy favoured by the European Union. See for example the so-called “EU-Turkey (...)
• 30 D. Kochenov, Citizenship, Cambridge, MIT Press, 2019.

24Democracy without the demos is a matter of (equal) rights.28 Rights which are contradicted by bourgeois property, which, as a pointed, is a form of property-theft: the homeless, the riders, the kellys are the most obvious victims (but not the only ones) of exploitation through property. But this “internal” form of exclusion is matched by massive exclusionary policies, so as to keep les damnés de la terre away. The right of asylum has become the fig leaf through which we pretend to care for others, but even when forced migrants fully qualify as refugees we try to keep them away through different forms of outsourcing,29 at the cheapest possible market price. Does that entail that democracy without the demos requires abolishing citizenship?30

• 31 C. Castoriadis, Sur “Le politique” de Platon, Paris, Seuil, 1999.

26Only if we defend and reinforce citizenship we can realise the (political) value of self-government. This is a key intuition that we find in the Greek conception of citizenship as described by Aristotle, one that remains valid.31 Without strong citizenship, without a focus on political rights to democratic participation, where politics and law are regarded as the mere implementation of a divine will, or understood as the province of the will of rulers legitimised by their charisma, by their knowledge, or by their capacity to generate material wealth, not only self-government comes to an end, but the fate of the forced migrants is bound to be dire.

• 32 É. Lambert, Le gouvernement des juges et la lutte contre la législation sociale aux États-Unis. L’e (...)
• 33 M. García Pelayo, Derecho Constitucional Comparado, Madrid, Revista de Occidente, 1950, chapter 3.

27Indeed, only a democratic and social citizenship can ensure the actual indivisibility of civic, political and social rights. These rights are not only more than mere isolated units to be aggregated, but they are an integral part to the democratic order. Only a community where civic, political and social rights are acknowledged equal dignity and force is genuinely democratic in character. Indeed, without social rights, participatory democracy not only remains a hollow principle, but runs the risk of being “disfigured”. There is no “pure” state of law, but only the democratic and social state is a genuine “state of law”.32 Moreover, democratic and social citizenship is not only about political rights, but about democratic practices of politics. Democratic and social citizenship emerged as a result of very specific and concrete historical conflicts, critically including wars, revolutions, and struggles for inclusion of minorities and excluded groups. In other words, it is not practical reason as such that brought us the eight-hour working day, universal suffrage, the due process of law, or equality between men and women. We owe the key elements of the democratic and social state to social movements, to the women and men that organised, demonstrated and fought for such rights.33

• 34 H. Kelsen, Der Staats Als Integration, Vienna, Springer, 1930.
• 35 I. S. Patel, We’re Here Because You Were There: Immigration and the End of Empire, London, Verso, 2 (...)

29Not really. Democratic politics needs to be constantly oscillating between moments of unity (in which we make up the collective through common engagement in deliberation about the common good) and moments of plurality, in which we take fully on board the fact that the society and the polity are made of individuals who have specific interests, concerns and views. From a normative perspective, such unity should not be regarded as pre-political, but legally structured and maintained, as indeed Hans Kelsen perceptively insisted.34 Moreover, no clarity is gained by stretching the concept of citizenship so as to cover personal statuses which do not entail rights to be part of the political life of the community. We need to consider the differences between citizenship and other personal statuses, including permanent residence, residence and asylum. Now, there are imperative reasons why a political community should recognise such statuses, especially the latter. Indeed, it is not only the case that on their existence may hinge the justice and fairness of the way in which the political community treats non-citizens, but that some of such statuses (think about the very concept of person as a legal concept) are logically and normatively prior to that of citizenship. But nothing is gained by labelling them as “quasi-citizenship” or by speaking of degrees of citizenship. What we need, on the contrary, are two things. First, the development of a proper federal political theory which dilucidates how to build a political order that covers the entire world but is built from the bottom up, not the reverse, and which would clarify the degree to which the illusion of materially and normatively self-sufficient polities is simply out of synch with the way in which we engage into social and economic relations. The second is a strong sense of the obligations we have to “others” and a clear understanding that the extent to which we discharge such obligations determines who we are. Such obligations result both from special relations stemming from past relationships (such as colonialism, imperialism and neo-imperalism)35 and from general obligations having to do with the very fact of our sharing the earth with all other human beings.

• 36 T. H. Marshall, Citizenship and Social Class and Other Essays, Cambridge, Cambridge University Pres (...)
• 37 R. Alexy, “Individual Rights and Collective Goods”, in Rights, C. Santiago Nino (ed.), New York, Ne (...)

30The realisation of equality is only possible if the constitutional grammar is adapted to the requirements of formal equality and material equality. In this respect, it is essential to avoid reducing fundamental legal positions, fundamental rights, to subjective rights. The point is not to undervalue subjective rights, as all reactionary ideologies of the 19^th and 20^th centuries did (and as contemporary reactionaries, posing as progressives, do). On the contrary. Subjective rights are and must be an integral part of any constitution of freedom: they need to be placed right at the center of any democratic theory which aspires to be susceptible of being characterised as radically enlightened. However, alongside subjective rights, any democratic and social state must recognise the importance of collective rights: not only in the field of labour and industrial relations, but also as a democratic pillar (think of the right of assembly, the right to demonstrate or the right to vote, which comprise both subjective and collective rights). In turn, the substrate on which the effectiveness of both subjective and collective rights is based is collective goods.36 This is because all fundamental rights are complex bundles of legal positions, which presuppose institutional structures dependent on the maintenance of collective goods.37 Indeed, overcoming the centrality of bourgeois property should also mean going beyond the identification of such right to private property as the template on which all other fundamental rights positions should be modelled.