Copyright (c) 2008 Berkeley Electronic Press All rights reserved. http://www.bepress.com/lehr Recent documents in Law & Ethics of Human Rights en-us Sat, 14 Jun 2008 03:24:05 PDT 3600 http://www.bepress.com/lehr/vol2/iss1/art14 http://www.bepress.com/lehr/vol2/iss1/art14 Thu, 12 Jun 2008 14:08:23 PDT Attaining and maintaining a substantial Jewish majority in Israel has been one of the basic goals of the State of Israel since its early years. A substantial Jewish majority within the borders of the state is thought to be necessary in order to preserve its Jewish nature. Many believe that the demographic consideration also stood behind the enactment of the Citizenship and Entry into Israel Law (Temporary Provision), 2003, which prohibits granting Israeli citizenship and residency to Palestinians from the West Bank and the Gaza Strip, and prevents, inter alia, Israeli Arabs from living in Israel with their Palestinian spouses.I examine the legitimacy of the demographic consideration from the perspective of liberal political theory. I conclude that demography can, in principle, be a legitimate consideration in deciding immigration policy, and its justification can be derived from the liberal justification of the right to national self-determination. However, the demographic consideration must be assigned its proper role and weight relative to other important liberal values such as equality and other human rights. I suggest that the demographic consideration might be legitimate only to the extent that it is not used to justify immigration policies that violate constitutional rights.I then discuss the Supreme Court decision concerning the constitutionality of the Citizenship and Entry into Israel Law. I demonstrate that, contrary to statements by the judges themselves, the demographic consideration played a key role in the opinions of several judges. It was, however, a hidden consideration. It was not openly acknowledged and discussed. Consequently, a careful examination and balancing of the demographic consideration could not take place. The result was that the actual influence of the demographic consideration on the outcome of the case was much stronger than can be reasonably justified according to liberal principles of justice. Yaacov Ben-Shemesh http://www.bepress.com/lehr/vol2/iss1/art13 http://www.bepress.com/lehr/vol2/iss1/art13 Thu, 12 Jun 2008 14:08:20 PDT Cultural rights of minority groups are recognized in international human rights law. These rights include the right of minority groups to adopt various measures to protect their cultural identity, which may include closure of the group's community from outsiders. The state in which such groups reside has a concurrent duty to respect these rights and sometimes even to take positive measures to ensure their implementation. The consideration of demographic factors, then, is regarded as legitimate when designed to protect minority groups. The rights of majority groups, on the other hand, are often ensured by the mere fact that they constitute a majority within the state and as such do not require special measures.This state of affairs is challenged, however, in face of mass immigration that could change the relation existing between majority and minority groups within the state. Under these circumstances, does a majority have the right to preserve its own culture through an immigration policy that takes into account demographic factors? I argue that the duty of states under international human rights law to protect rights of minority groups might serve as an incentive to restrict immigration endangering the character of the state. This character--the state's public culture--is the outcome of collective preferences of the majority of its citizens, which is assumed ought to be respected. Na'ama Carmi http://www.bepress.com/lehr/vol2/iss1/art12 http://www.bepress.com/lehr/vol2/iss1/art12 Wed, 11 Jun 2008 15:22:29 PDT The case of Israel generally, and specifically regarding the justifications put forth for the Law of Return by a wide range of liberal scholars, accents the main problems and weaknesses of liberal legality. Part one of the paper rethinks aspects of liberal legality and its artificial nature in light of debates surrounding the Law of Return. Debating both the case of Israel and the insistence of many Israeli scholars on justifying the Law using liberal terms, this part reveals certain aspects of liberalism that usually remain hidden.Part III comments on Israel and evaluates the Law of Return while comparing it to similar laws, arguing that even after revisiting liberal legality, the Law of Return scores badly according to the criteria of liberal legality. Thus, the first analysis places Israel within a paradigm, revealing that Israel may not be so exceptional. For those who view liberalism as a pure, ideal theory (both those who support the Law and think that it passes the test of liberalism and those who oppose the Law and think that it fails the test of liberalism) this paper points to the dark side of liberalism, and thereby suggests that Israel might not be the only "pariah" state, but even within the new paradigm (the second analysis), the Law of Return is at the extreme end of the spectrum and scores badly. Raef Zreik http://www.bepress.com/lehr/vol2/iss1/art11 http://www.bepress.com/lehr/vol2/iss1/art11 Wed, 11 Jun 2008 15:22:27 PDT Timothy William Waters http://www.bepress.com/lehr/vol2/iss1/art10 http://www.bepress.com/lehr/vol2/iss1/art10 Wed, 11 Jun 2008 15:22:24 PDT Yuval Shany http://www.bepress.com/lehr/vol2/iss1/art9 http://www.bepress.com/lehr/vol2/iss1/art9 Wed, 11 Jun 2008 15:22:22 PDT What limits ought there be on a state's ability to create a homogeneous society, to increase or perpetuate non-diversity, or to create hierarchies within existing diversity? This article examines those questions with reference to the Lieberman Plan--which proposes to transfer populated territories from Israel to the Palestine in exchange for Jewish settlements on the West Bank-- as an abstract exercise in demographic transformation by the state. First the article considers if the Lieberman plan would "work": Would it create the alterations it proposes, and would those changes achieve a stable, peaceful, perhaps even just settlement? It finds that though there is debate about the range of effect, there is little doubt that transfer would alter the state's demography. It then turns to the international standards that might govern the transfer of territory and the denaturalization of citizens, to see how they would characterize such a plan. It finds that comparisons to ethnic cleansing are inapposite, and that norms protecting citizenship are considerably more complex than they first appear--even allowing ethnically targeted denaturalization in some cases.The article then analyzes the loyalty provisions of the Lieberman Plan, and notes that, contrary to the usual normative assumption that citizenship is tied to the state, the foundations of citizenship are actually a habitual or formative link to a given territory, which in turn creates a right to citizenship not in any particular state, but in the one that incidentally is sovereign over that territory. This interaction of citizenship and territory, when considered together with norms requiring equal protection for all citizens, suggests that the polity has an interest in defining its own territorial scope, and thereby its membership. The legal regime is ambiguous, and therefore deliberations about this question are in the realm of politics. The article demonstrates how transfer's assimilation to existing norms suggests a novel interpretation of selfdetermination with far-reaching consequences for both sides of the conflict.Finally, the article notes that international law, though it polices excesses, is largely silent on the principal determinant of demography: the fact of state control over territory. Timothy William Waters http://www.bepress.com/lehr/vol2/iss1/art8 http://www.bepress.com/lehr/vol2/iss1/art8 Wed, 11 Jun 2008 15:22:21 PDT The paper examines natality policies in ethnically divided and multicultural societies from the perspective of women's and minority rights. Using Israel as an example, the paper introduces Israel's demographic policy and the measures it has taken in order to implement its official policy of promoting Jewish natality. It then moves on to a theoretical discussion of the use made by states and communities of the woman's body as a demographic objective, presenting various types of natality policies and evaluating them from a feminist perspective.Is it legitimate for a state to set any natality policy? Concluding that it is, can setting policies promote an increase in natality and what measures can it use to implement such policies? The paper claims that a state can neither apply ideological pressure on women, nor can it use measures such as those used by Israel, restricting accessibility to abortions and mandating pre-abortion counseling in order to increase natality. The discussion advances on to determine whether a state can promote a decrease in natality, and if so, in what manner? Discussing the example of the ultra-Orthodox Jews in Israel, the paper claims that a state is not required to respect alleged cultural precepts that demand inordinately high birthrates and discusses the balance to be created between the demands of culture, the rights of women, and economic considerations such as the unsustainability of very large families.Finally, can a state set different natality policies for different segments of the population, and if so can it do so along ethnic lines? Again using Israel as an example, the paper argues that while the Jewish people have a right to maintain an ethnic democracy in Israel, this right is subject to the constitutional recognition of the status of non Jewish citizens and to a strong protection for minority rights; consequently, even Israel's status as an ethnic democracy does not give it the right to form natality policies along ethnic lines. Gila Stopler http://www.bepress.com/lehr/vol2/iss1/art7 http://www.bepress.com/lehr/vol2/iss1/art7 Wed, 11 Jun 2008 15:22:18 PDT Citizenship in Europe raises two key issues: One is the nature of the restrictive trend in Europe; the other is the use of Europe as a standard to evaluate citizenship regimes and trends in other countries, especially countries, like Israel, whose citizens and elites usually view themselves as and wish to be Western. Sammy Smooha http://www.bepress.com/lehr/vol2/iss1/art6 http://www.bepress.com/lehr/vol2/iss1/art6 Wed, 11 Jun 2008 15:22:15 PDT In the rapidly growing literature on comparative citizenship, a dominant assumption is that the nationality laws in Western states are converging on liberal norms of equality and inclusiveness. However, especially since the onset of the new millennium and an apparent failure of integrating Muslim immigrants there has been a remarkable counter-trend toward more restrictiveness. This paper reviews the causes and features of restrictiveness in the heartland of previous liberalization, north-west Europe. It is argued that even where it seems to be strongest: with respect to the rules of naturalization, the restrictive trend is embedded within an overall liberal, sometimes even liberalizing framework. The notion of a wholesale "restrictive turn in Europe" therefore has to be rejected. Christian Joppke http://www.bepress.com/lehr/vol2/iss1/art5 http://www.bepress.com/lehr/vol2/iss1/art5 Wed, 11 Jun 2008 15:22:14 PDT This paper uses diversity management as a placeholder for human rights policy. By diversity management, I mean those policy techniques that a society can use to deal with diversity, which include not only decisions to make diversity a subject of active legal and governmental intervention, but also decisions to leave diversity to informal, unregulated choices by individuals or civil society institutions. My discussion proceeds with particular reference to the United States, in part because it has been relatively successful in managing its diversity in recent decades--relative, that is, both to its own past (especially the pre-1965 period) and to the record of other countries today. (Serious, long-standing problems in the integration of certain minorities in the U.S. remain, most notably with respect to three groups: Native-Americans, "underclass" black men, and unskilled, often undocumented, immigrants.)An approach to diversity management "works," in my view, if and to the extent that the country's vulnerable minorities (a) enjoy some social mobility, (b) are integrated into the major institutions of society, (c) have access to political influence roughly proportional to their limited numbers, (d) are free to live according to their own group values and practices, and (e) do not feel deep alienation from the dominant cultural norms. By this definition, the American system works relatively well--with the qualifications and exceptions noted just above. The paper proceeds in three parts. Part I seeks to sharpen our understanding of diversity by analyzing several different ways of understanding and defining that idea, with a view to underscoring the significance of choosing one or another measure of it. Part II discusses two examples-- multiracial individuals and anti-profiling laws--to illustrate the inevitable politicization of certain demographic categories when used for politicallysensitive purposes. Part III presents some distinctive and, in some cases, unique features of the American approach to diversity management. Most of these features, I argue, effectively advance the cause of minority mobility and integration, whereas some tend to undermine these goals. Peter H. Schuck http://www.bepress.com/lehr/vol2/iss1/art4 http://www.bepress.com/lehr/vol2/iss1/art4 Wed, 11 Jun 2008 15:22:10 PDT This paper presents the metaphysics of liberal rights reasoning on the one hand and that of demographic reasoning on the other, as exemplifying two worldviews that both compete and complement each other in the contemporary German public debate on demographic decline.First, this essay outlines the way in which liberal theorists of various outlooks, perfectionist and neutralist alike, assume that a wide range of rights serves not only the interests of those individuals who possess them, but that it constitutes the foundations of a just and stable political order in general and therefore is to the advantage of everyone.Second, the essay explains how demographic reasoning questions the assumption of harmony shared by the liberal approaches. Third, it provides an impression of the way in which demographic arguments have been deployed in the public sphere in Germany in the last few years. These arguments associate the autonomy of women with the demise of Germany. They claim that by encouraging women to pursue self-realization as self-interested individuals, the modern secular ethos of Germany as a democratic welfare society may be self-destructive in the long run, since it leads to sub-replacement fertility.Finally, the essay stresses that liberal and demographic perspectives share a "blindness" of historical events. In response, the conclusion brings history back in, by historicizing both demographic reasoning and demographic developments in Germany, with the aim of defusing some of the anxieties that may have been aroused by the current debate. José Brunner http://www.bepress.com/lehr/vol2/iss1/art3 http://www.bepress.com/lehr/vol2/iss1/art3 Wed, 11 Jun 2008 15:22:09 PDT Yossi Dahan http://www.bepress.com/lehr/vol2/iss1/art2 http://www.bepress.com/lehr/vol2/iss1/art2 Wed, 11 Jun 2008 15:22:06 PDT In this article I examine recent debates concerning the emergence of cosmopolitan norms that protect individuals' rights regardless of their citizenship status, and the spread of what some have called "global law without a state." What many see as the rise of a new human rights regime, others condemn as the spread of empire or of a global police-state that imposes similar norms on all self-determining societies.I distinguish between the spread of human rights norms and the emergence of deterritorialized legal regimes, by focusing on the relationship between global capitalism and legal developments. Although both cosmopolitan norms and deterritorialized law challenge nation-states by escaping the consent of the legislatures, I argue that "cosmopolitan norms" can enhance popular sovereignty while other forms of global law do not do so. The latter "fragment the public sphere" and create "privatized" norms of justification.I end by pleading for a normative vision of "republican federalism" and "democratic iterations," which interact between the local, the national, and the global. Seyla Benhabib http://www.bepress.com/lehr/vol2/iss1/art1 http://www.bepress.com/lehr/vol2/iss1/art1 Wed, 11 Jun 2008 15:22:04 PDT The Editors