Is it possible for the state simultaneously to respect deep cultural differences and to protect the hard-won citizenship rights of vulnerable group members, particularly women? This 2001 book argues that it is not only theoretically needed, but also institutionally feasible. Rejecting prevalent normative and legal solutions to this 'paradox of multicultural vulnerability', Multicultural Jurisdictions develops a powerful argument for enhancement of the jurisdictional autonomy of religious and cultural minorities while at the same time providing viable legal-institutional solutions to the problem (...) of sanctioned intra-group rights violation. This new 'joint governance' approach is guided by an innovative principle that strives for the reduction of injustice between minority groups and the wider society, together with the enhancement of justice within them. This book will interest students of political and social theory, law, religion, institutional design, as well as cultural and gender studies. (shrink)

The Jurisprudence Lecture, delivered by Ayelet Shachar, challenges the established dichotomy between open and closed borders, showing that one of the most remarkable developments of recent years is...

The standard objection to dualist theories of mind is that they seemingly cannot account for the obvious fact that mental phenomena cause our behaviour. On the plausible assumption that all our behaviour is physically necessitated by entirely physical phenomena, there appears to be no room for dualist mental causation. Some argue that dualists can address this problem by making minimal adjustments in their ontology. I argue that no such adjustments are required. Given recent developments in philosophy of causation, it is (...) plausible that mental phenomena cause behaviour in standard dualist ontologies. (shrink)

The border is one of the most urgent issues of our times. We tend to think of a border as a static line, but recent bordering techniques have broken away from the map, as governments have developed legal tools to limit the rights of migrants before and after they enter a country's territory. The consequent detachment of state power from any fixed geographical marker has created a new paradigm: the shifting border, an adjustable legal construct untethered in space. This transformation (...) upsets our assumptions about waning sovereignty, while also revealing the limits of the populist push toward border-fortification. At the same time, it presents a tremendous opportunity to rethink states' responsibilities to migrants. This book proposes a new, functional approach to human mobility and access to membership in a world where borders, like people, have the capacity to move. (shrink)

Artificial intelligence surveillance can be used to diagnose individual cases, track the spread of Covid‐19, and help provide care. The use of AI for surveillance purposes (such as detecting new Covid‐19 cases and gathering data from healthy and ill individuals) in a pandemic raises multiple concerns ranging from privacy to discrimination to access to care. Luckily, there exist several frameworks that can help guide stakeholders, especially physicians but also AI developers and public health officials, as they navigate these treacherous shoals. (...) While these frameworks were not explicitly designed for AI surveillance during a pandemic, they can be adapted to help address concerns regarding privacy, human rights, and due process and equality. In a time where the rapid implementation of all tools available is critical to ending a pandemic, physicians, public health officials, and technology companies should understand the criteria for the ethical implementation of AI surveillance. (shrink)

In today's age of restrictionism, a growing number of countries are closing their gates of admission to most categories of would-be immigrants with one important exception. Governments increasingly seek to lure and attract “high value” migrants, especially those with access to large sums of capital. These individuals are offered golden visa programs that lead to fast-tracked naturalization in exchange for a hefty investment, in some cases without inhabiting or even setting foot in the passport-issuing country to which they now officially (...) belong. In the U.S. context, the contrast between the “Dreamers” and “Parachuters” helps to draw out this distinction between civic ties and credit lines as competing bases for membership acquisition. Drawing attention to these seldom-discussed citizenship-for-sale practices, this essay highlights their global surge and critically evaluates the legal, normative, and distributional quandaries they raise. I further argue that purchased membership goods cannot replicate or substitute the meaningful links to a political community that make citizenship valuable and worth upholding in the first place. (shrink)

The global distributive implications of automatically allocating political membership according to territoriality (jus soli) and parentage (jus sanguinis) principles have largely escaped critical scrutiny. This article begins to address this considerable gap. Securing membership status in a given state or region--with its specific level of wealth, degree of stability, and human rights record--is a crucial factor in the determination of life chances. However, birthright entitlements still dominate both our imagination and our laws in the allotment of political membership to a (...) given state. In this article we explore the striking conceptual and legal similarities between intergenerational transfers of citizenship and property. The analogy between inherited citizenship and the intergenerational transfer of property allows us to use existing qualifications found in the realm of inheritance as a model for imposing restrictions on the unlimited and perpetual transmission of membership--with the aim of ameliorating its most glaring opportunity inequalities. (shrink)

In this paper, Ayelet Shachar begins by restating the main idea of her important book The Birthright Lottery : Citizenship and Global Inequality and then goes on to address in a constructive spirit the main themes raised by the five preceding comments written by scholars in the fields of law, philosophy and political science.Dans cet article, Ayelet Shachar commence par rappeler l’idée centrale de son livre important The Birthright Lottery: Citizenship and Global Inequality avant de répondre de manière (...) constructive aux cinq commentaires qui précèdent, rédigés par des experts dans les domaines du droit, de la philosophie et de la science politique. (shrink)

The emergence of the genetic counseling profession has allowed laypeople to understand and benefit from biological advances, and to make critical decisions about their application. The discipline of genetic counseling has been criticized from its very beginning, in particular because of its early association with the eugenics movement. This paper presents a critical and reflective overview of how genetic counseling is implicitly embedded in the history of eugenics but also counteracts past eugenic practices and ideas. After World War II, attempts (...) were made to distance genetic counseling from eugenics. The first definition of genetic counseling did not position this field as a medical encounter but "as a kind of genetic social work aimed primarily to provide people with an understanding of their family's genetics problems." This approach was a reaction to the genetic and social evolutionary ideas that informed eugenic theories during the first half of the 20th century. Professionals engaged in genetic counseling during the 1940s and1950s rejected eugenic practices, but there was still support for eugenics’ goals of improving heredity and eliminating disease. From the 1960s, genetic counseling underwent professionalization alongside feminization and a definition of core values. Among these values were nondirectiveness counseling and the autonomy of the counselee. The dark shadow of Nazi ideology and other eugenic practices, attempts to employ the historical responsibility of geneticists, and the dynamic medical, social, political, and educational changes of the 1960s and 1970s helped to frame approaches and delineate the goals and limits of the new profession of “genetic counseling.”. (shrink)

According to the so-called 'proportionality principle', causes should be proportional to their effects: they should be both enough and not too much for the occurrence of their effects. This principle is the subject of an ongoing debate. On the one hand, many maintain that it is required to address the problem of causal exclusion and take it to capture a crucial aspect of causation. On the other hand, many object that it renders accounts of causation implausibly restrictive and often reject (...) the principle wholesale. I argue that there is exaggeration on both sides. While one half of the principle is overly demanding, the other half is unobjectionable. And while the unobjectionable half does not block exclusion arguments on its own, it provides a nuanced picture of higher-level causation, fits with recent developments in philosophy of causation, and motivates adjustments to standard difference-making accounts of causation. I conclude that at least half of the proportionality principle is worth taking seriously. (shrink)

Cet article est la traduction française de l’introduction du livre d’Ayelet Shachar, «The Puzzle of Birthright Citizenship», avec la permission de l’éditeur, tirée de The Birthright Lottery : Citizenship and Global Inequality, Cambridge, Mass.: Harvard University Press, pp.1-18. © 2009 President and Fellows of Harvard College. Traduction de Martin Provencher.This paper is the French translation of Ayelet Shachar’s introduction, «The Puzzle of Birthright Citizenship», digitally reproduced by permission of the publisher from The Birthright Lottery : Citizenship and Global (...) Inequality, Cambridge, Mass.: Harvard University Press, pp.1-18. © 2009 by the President and Fellows of Harvard College. Translation by Martin Provencher. (shrink)

Advancements in machine learning have fuelled the popularity of using AI decision algorithms in procedures such as bail hearings, medical diagnoses and recruitment. Academic articles, policy texts, and popularizing books alike warn that such algorithms tend to be opaque: they do not provide explanations for their outcomes. Building on a causal account of transparency and opacity as well as recent work on the value of causal explanation, I formulate a moral concern for opaque algorithms that is yet to receive a (...) systematic treatment in the literature: when such algorithms are used in life-changing decisions, they can obstruct us from effectively shaping our lives according to our goals and preferences, thus undermining our autonomy. I argue that this concern deserves closer attention as it furnishes the call for transparency in algorithmic decision-making with both new tools and new challenges. (shrink)

Hegel has long been considered a major thinker of progress. This paper extends Hegel’s philosophy of progress into an outline of a philosophy of technology. It does this not by directly reading the little Hegel wrote on the subject, but by introducing six central Hegelian ideas that bear on the technological thought. It argues that, for Hegel, (1) mankind is destined to change its destiny; (2) that true change involved qualitative change; (3) that true change is conceptual, and not material, (...) change; (4) that history progresses immanently according to its own laws; (5) that history progresses towards ever greater artificiality; and that (6) artificiality is closely linked to freedom. These ideas cohere into a Hegelian metaphysics of technology, which is supportive of the technological enterprise. This paper is meant both to sketch a metaphysical understanding of the technological enterprise, and to trace the intellectual roots of contemporary technological utopianism. (shrink)

Many philosophers argue that exclusion arguments cannot exclude non-reductionist physicalist mental properties from being causes without excluding properties that are patently causal as well. List and Stoljar (2017) recently argued that a similar response to exclusion arguments is also available to dualists, thereby challenging the predominant view that exclusion arguments undermine dualist theories of mind. In particular, List and Stoljar maintain that exclusion arguments against dualism require a premise that states that, if a property is metaphysically distinct from the sufficient (...) cause of an effect, this property cannot be a cause of that effect. I argue that this premise is indeed likely to exclude patently causal properties, but that exclusion arguments against dualism do not require this premise. The relation that enables metaphysically distinct properties to cause the same effect in the relevant way turns out to be tighter than the relation typically posited between dualist conscious properties and their underlying physical properties. It is therefore still plausible that the latter causally exclude the former and that compelling exclusion arguments against dualism can be formulated by using a weaker exclusion premise. I conclude by proposing such a formulation. (shrink)

Volume 19, Issue 5, May 2019, Page 78-80.

ABSTRACTThis paper attempts to shed light on Hegel’s recurring comment that Spinoza’s philosophy lacks the ‘principle of individuality’. It shows that this criticism can have three distinct meanings: that Spinozism cannot account for the multiplicity of finite individuals; that Spinozism leads to a moral devaluation of the finite individual; the form of substance is indifferent and lacks a differentiating principle. It is shown that Hegel argued, somewhat incoherently, for all three.

Some non-reductionists claim that so-called ‘exclusion arguments’ against their position rely on a notion of causal sufficiency that is particularly problematic. I argue that such concerns about the role of causal sufficiency in exclusion arguments are relatively superficial since exclusionists can address them by reformulating exclusion arguments in terms of physical sufficiency. The resulting exclusion arguments still face familiar problems, but these are not related to the choice between causal sufficiency and physical sufficiency. The upshot is that objections to the (...) notion of causal sufficiency can be answered in a straightforward fashion and that such objections therefore do not pose a serious threat to exclusion arguments. (shrink)

European Journal of Political Theory, Volume 21, Issue 3, Page 615-623, July 2022. In this response essay, Ayelet Shachar replies to her critics, pushing beyond the arguments developed in her most recent book, The Shifting Border, to probe new ideas. Specifically, she elaborates five avenunes for exploration: dethorning the state as the exclusive decisionmaker on migration; finding the tools to alleviate oppression in the criticized practices themselves; identifying rights and duty-bearers; exposing the spatial dimension of structural injustice; and revisiting (...) the role of territory as mediating equality. (shrink)

Cutting a cake, dividing up the property in an estate, determining the borders in an international dispute - such problems of fair division are ubiquitous. Fair Division treats all these problems and many more through a rigorous analysis of a variety of procedures for allocating goods, or deciding who wins on what issues, when there are disputes. Starting with an analysis of the well-known cake-cutting procedure, 'I cut, you choose', the authors show how it has been adapted in a number (...) of fields and then analyze fair-division procedures applicable to situations in which there are more than two parties, or there is more than one good to be divided. In particular they focus on procedures which provide 'envy-free' allocations, in which everybody thinks he or she has received the largest portion and hence does not envy anybody else. They also discuss the fairness of different auction and election procedures. (shrink)

Traditionally, causal arguments for physicalism have been taken to favour a ‘reductive’ brand of physicalism, according to which all the mental stuff is identical to some of the physical stuff. Many flaws have been found with these traditional causal arguments. Zhong (Asian Journal of Philosophy, 2(2), 1–9, 2023) develops a new causal argument that avoids these flaws and favours a milder, non-reductive brand of physicalism instead. The conclusion is that all mental stuff is metaphysically necessitated by some of the physical (...) stuff. I argue that neither the traditional nor the new causal argument holds much sway over non-physicalism. The problem is that causation just does not run that deep. It is a fairly superficial relationship and a poor guide to the metaphysically weighty facts of our world, such as what is identical to what, and what metaphysically necessitates what. (shrink)

National and international criminal law systems are continually seeking doctrinal and theoretical frameworks to help them impose individual liability on collective perpetrators of crime. The two systems move in parallel and draw on each other. Historically, it has been mostly international criminal law that leaned on domestic legal systems for its collective modes of liability. Currently, however, it is the emerging jurisprudence of the International Criminal Court that is at the forefront of innovation, with the doctrine of indirect co-perpetration taking (...) the lead in international prosecutions. The article assesses the potential contribution as well as the limits of this compound doctrine to domestic criminal law jurisprudence, particularly with regard to small-group criminality. Four modes of indirect co-perpetration are discussed, namely shared control, concerted control, controlling board, and flawed triangle perpetration. A doctrine of indirect co-perpetration would enable liability in these modes of perpetration, perhaps with the exception of the latter, which marks the limits of its applicability. (shrink)

The intuition holding that an organized crime leader should be punished more severely than a subordinate who directly commits an offence is commonly reflected in legal literature. However, positing a direct relationship between the severity of punishment and the level of seniority within an organizational hierarchy represents a departure from a more general idea found in much of the substantive criminal law writings: that the severity of punishment increases the closer the proximity to the physical commission of the offence. This (...) paper presents an analysis of the said intuition and attempts to ascertain its roots. Rejecting both retribution and deterrence theory as valid explanations, it will be inferred that the imposition of harsher punishment on organized crime leaders is properly based on the multiplicity of offences for which they are responsible, and not the nature of their involvement in any specific offence. (shrink)

Courts and commentators do not differentiate between defendants who perpetrate crimes by means of inanimate weapons or trained animals and those who perpetrate crimes by means of other human beings used as innocent agents. I argue that this widely accepted comparability is grossly insensitive to the violation of the human dignity of the person whom the perpetrator has turned into an instrument to an offence. Identifying the innocent agent as a possible second victim of the offence alongside the intended victim (...) raises several issues of both morality and law. First, the question of moral pertinence: do the scenarios that the law recognises as cases of innocent agency involve a violation of the dignity of the innocent agent? Second, the question of criminalisation: is it appropriate to invoke criminal law to protect the dignity of the innocent agent? Third, the question of the protected interest: assuming that both the dignity of the innocent agent and their autonomy are compromised, which of these violations is graver? I argue that there is a strong connection between the doctrine of innocent agency and the violation of the dignity of the innocent agent; that the violation of the innocent agent’s dignity is severe enough to warrant criminalisation and that this is simple enough to enforce; and that the injury to the innocent agent’s dignity is more significant than the injury to their autonomy. The operative proposal of this article is that the law should recognise perpetration by means of innocent agents as an aggravated mode of commission or an aggravating factor in punishment. (shrink)

In recent epistemology many philosophers have adhered to a moderate foundationalism according to which some beliefs do not depend on other beliefs for their justification. Reliance on such ‘basic beliefs’ pervades both internalist and externalist theories of justification. In this article I argue that the phenomenon of perceptual learning – the fact that certain ‘expert’ observers are able to form more justified basic beliefs than novice observers – constitutes a challenge for moderate foundationalists. In order to accommodate perceptual learning cases, (...) the moderate foundationalist will have to characterize the ‘expertise’ of the expert observer in such a way that it cannot be had by novice observers and that it bestows justification on expert basic beliefs independently of any other justification had by the expert. I will argue that the accounts of expert basic beliefs currently present in the literature fail to meet this challenge, as they either result in a too liberal ascription of justification or fail to draw a clear distinction between expert basic beliefs and other spontaneously formed beliefs. Nevertheless, some guidelines for a future solution will be provided. (shrink)

Absences pose a dilemma for theories of causation. Allowing them to be causes seems to make theories too permissive (Lewis, 2000). Banning them from being causes seems to make theories too restrictive (Schaffer, 2000, 2004). An increasingly popular approach to this dilemma is to acknowledge that norms can affect which absences count as causes (e.g., Thomson, 2003; McGrath, 2005; Henne et al., 2017; Willemsen, 2018). In this article, I distinguish between two influential implementations of such ‘abnormality’ approaches and argue that (...) so-called ‘double-prevention mechanisms’ provide counterexamples against both. (shrink)

Ever since the publication of Read’s The Politics of Transindividuality (2015), the academic interest in transindividuality has steadily mounted. In this conversation, Bram Wiggers and Jason Read discuss the current state of affairs around the concept of transindividuality. The conversation begins with a definition of transindividuality and discusses what sets the term apart from other philosophies of social individuation. Having defined the concept of transindividuality, the conversation then engages with the question of how transindividuality can be adopted as a (...) means of social-political critique. First, Bram and Jason discuss how transindividuality is evoked but not explicitly mentioned in the social-political critiques of Spinoza and Marx. Secondly, the conversation takes up the social-political critiques of Paolo Virno and Bernard Stiegler who make explicit use of transindividuality. Central to the later parts of the conversation is the complicated interrelation between the political and economic domains of individuation, as well as the tendency of collective modes of representation to be effaced and obscured by (neoliberal) individualism and the post-Fordist conditions of labor. Overall, the conversation highlights the relevance of transindividuality for social-political philosophical critique. (shrink)

Common law treats cases of misfire in which the actor has a valid defence in relation to either the intended victim or the victim actually harmed as particular instances of ‘transferred malice’. It is said that just as the actor’s intention is fictitiously ‘transferred’ from the intended victim to the victim harmed so are defences, meaning that any—and only—defences that would have been available to the actor had he harmed the intended victim will be granted to him with regard to (...) the harm caused to the actual victim. I argue that the blanket solution of transferring defences ‘as is’, without accounting for their differing rationales and their specific implications for cases of misfire, produces bad reasoning and oversimplified decisions—and should therefore be substituted by a separate examination of the actor’s liability with respect to each victim and each type of defence. However, I reject the more robust argument that commentators have made, that a conclusion against transferring defences entails a conclusion against transferred malice in general. I argue that the underlying logic of transferred malice—i.e., treating victims of equivalent wrongs alike—stays intact even if we excise from it the treatment of cross-victim defences. (shrink)

In the recently published collection, Criminal Law and the Authority of the State, two contributions allude to an analogy with parental authority as a means to a better understanding of the institution of criminal punishment, but reach different conclusions. Malcolm Thorburn uses the parental authority analogy to justify the institution of state punishment as an assertion of robust authority over offenders. Antje du Bois-Pedain uses the same analogy to advocate the idea of punishment as an inclusionary practice, designed to reintegrate (...) offenders into society. I argue that Thorburn’s theory of robust authority is inconsistent if not self-contradictory when it tries to assume a liberal posture, and that du Bois-Pedain’s reintegrative model provides a better account of the justification and objectives of state punishment. (shrink)

Criminal law doctrine fails to provide an adequate solution for imputing responsibility to organized crime leaders for the offenses committed by their subordinates. This undesirable state of affairs is made possible because criminal organizations adopt complex organizational structures that leave their superiors beyond the reach of the law. These structures are characterized by features such as the isolation of the leadership from junior ranks, decentralized management, and mechanisms encouraging initiative from below. They are found in criminal organizations such as the (...) American Mafia, the Japanese Yakuza, and even outlaw motorcycle gangs. The paper offers a doctrine that may transcend this shortcoming. Referred to as “leaders’ liability,” this doctrine will be assessed and appraised through a comparison with competing theories such as accomplice liability, Organisationsherrschaft , and conspiracy. (shrink)

The article explores two recurring themes in the scholarly writings on ‘transferred malice’ the doctrine designed by Anglo-American law to allow full criminal responsibility where the defendant caused harm to a different object than the one he had in mind, due to either accident or mistake. First, in face of the diversity of views advocating the eradication of transferred malice, the article searches for the provinces in which that doctrine should still have relevance to our legal system. It is often (...) assumed that malice cannot transfer amongst different offences, which has led many scholars to conclude that the doctrine is superfluous. The analysis here offered counters both assumption and conclusion alike, as well as the common view that differentiates between the implications of accident and mistake. Second, reflecting on the different criteria proposed to restrict the implementation of transferred malice such as physical and immediate harm to the actual object, remoteness of the actual harm from the harm intended, and foreseeability as to the actual harm the article provides an analytical framework by which to assess these criteria and to determine which of them proves more persuasive. The result is a notion of transferred malice that strikes a favourable balance with the requirement of mens rea. (shrink)

Despite the fundamentally binary character of justification, an upsurge in recent Anglo-American scholarship offers some highly sophisticated and widely diverging conceptions of “partial justification” in criminal law. In the present article we identify eight distinct conceptions of partial justification. We find, however, that each of them is predicated on a different conceptual fallacy. Any sound concept of partial justification in criminal law ought to meet the dual challenge of utility and consistency: it should usefully convey a message that advances the (...) conduct-guiding function of criminal law and retain some consistency with the key attributes of complete justification, particularly its allowing function and the implications of its typically universal nature. We maintain that none of the conceptions offered to date meets this challenge. The different meanings attached to partial justification do not further the guiding function of criminal law beyond what is achieved by the scalar concept of wrongfulness; indeed, they undermine the guiding utility of criminal law by obscuring the distinction between the permissible and the impermissible, thereby also diminishing the expressivity of the criminal conviction. Furthermore, extending partial universality to the proposed notions of partial justification implausibly marks retaliating victims and intervening third parties, who react to allegedly partially justified conduct, as partly blameworthy, whereas present legal doctrine rightly affords them a full defense. (shrink)

Representations of the fingers are embodied in our cognition and influence performance in enumeration tasks. Among deaf signers, the fingers also serve as a tool for communication in sign language. Previous studies in normal hearing (NH) participants showed effects of embodiment (i.e., embodied numerosity) on tactile enumeration using the fingers of one hand. In this research, we examined the influence of extensive visuo‐manual use on tactile enumeration among the deaf. We carried out four enumeration task experiments, using 1–5 stimuli, on (...) a profoundly deaf group (n = 16) and a matching NH group (n = 15): (a) tactile enumeration using one hand, (b) tactile enumeration using two hands, (c) visual enumeration of finger signs, and (d) visual enumeration of dots. In the tactile tasks, we found salient embodied effects in the deaf group compared to the NH group. In the visual enumeration of finger signs task, we controlled the meanings of the stimuli presentation type (e.g., finger‐counting habit, fingerspelled letters, both or neither). Interestingly, when comparing fingerspelled letters to neutrals (i.e., not letters or numerical finger‐counting signs), an inhibition pattern was observed among the deaf. The findings uncover the influence of rich visuo‐manual experiences and language on embodied representations. In addition, we propose that these influences can partially account for the lag in mathematical competencies in the deaf compared to NH peers. Lastly, we further discuss how our findings support a contemporary model for mental numerical representations and finger‐counting habits. (shrink)

In British Hegelianism we find, forgotten, a weighty theory of individuality. This theory remains one of the most sustained attempts in the history of philosophy to analyze the individual, not in the social or psychological sense, but as a logical-metaphysical category. The Idealist conceptualization of the individual is bound with their unconventional theory of universals, for they argued that any individual is a “concrete universal,” and vice versa. This article reconstructs the British Idealist theory of individuality, highlighting its key insights: (...) (a) the individual is not a simple unit, but a small system with interrelated parts; (b) the individual is not simply given, but is mediated by thought; (c) the individual is the conceptual glue holding the parts together and assigning them their respective places; (d) the conceptualization of the individual lies at the intersection of logic, aesthetics and systems theory. (shrink)

The New Jersey Supreme Court has continually avoided making moral judgments about the value of life and emphasized that such decision making should be the province of the potential parents. Recently, in Acuna v. Turkish, the court elaborated on the limitations of the decision-making right of the potential parents, and its decision demonstrated that New Jersey courts were only willing to require physicians to disclose all relevant medical information, and not moral statements that had not been agreed upon by the (...) state's medical community, people, or legislature. Acuna might be read as a departure from the trend displayed by New Jersey courts in “wrongful birth” and “wrongful life” actions toward empowering potential parents to decide if they want to bring the pregnancy to term. However, the decision actually fits squarely within this trend in that the reluctance to expand the information to which potential parents are entitled from their physicians can be directly tied to the reluctance of the New Jersey Supreme Court to weigh in on the value of life in wrongful birth and wrongful life suits. (shrink)

The American Declaration of Independence served as a starting point for the drafting of the Israeli Declaration of Independence of 1948. Most of the original content was lost in the long process of translation and adaptation, but, using David Armitage’s recent terminology, the Israeli text remained as "generically promiscuous" as its predecessor, combining a "manifesto" of justifications for the assumption of sovereignty, a formal proclamation and a proto-Bill of Rights. This Article depicts the work of Mordechai Beham, the Israeli Declaration’s (...) first draftsman, as a remarkable exercise in choosing contemporary, locally-valid "answers" to the fundamental "questions" posed by Thomas Jefferson and his contemporaries in 18th century America on human values, national identity, statehood, and God. The analysis is partially based in the current debate on "legal transplantation," arguing that the outstanding success of the Israeli Declaration stems from both the quality of the American original and the massive work of adaptation to Israeli soil. (shrink)

This article evaluates demands for privatized diversity that destabilize traditional notions of separation of state and religion, by asking secular authorities to adopt a hands-off, non-interventionist approach, placing civil and family disputes with a religious or cultural aspect beyond the official realm of equal citizenship. This potential storm to come must be addressed head on because it mixes three inflammatory components in today’s political environment: religion; gender; and the rise of a neo-liberal state. The volatility of these issues is undisputed; (...) they require a mere spark to ignite. The standard legal response to this challenge is to seek shelter behind a formidable ‘wall of separation’ between state and religion, even if this implies turning a blind eye to the concerns of religious women — especially those caught in the uncoordinated web of secular and religious marriage bonds. I will advance a different approach. By placing these once-ignored agents at the centre of analysis, this article explores the idea of permitting a degree of regulated interaction between religious and secular sources of identity and obligation, so long as the baseline of citizenship-guaranteed rights remains firmly in place. (shrink)

Demands to accommodate religious diversity in the public sphere have recently intensified. The debates surrounding the Islamic headscarf in Europe vividly illustrate this trend. We also find a new challenge on the horizon: namely, the request to "privatize diversity" through alternative dispute resolution processes that permit parties to move their disputes from public courthouses into the domain of religious or customary sources of law and authority. The recent controversies in Canada and England related to the so-called Shari’a tribunals demonstrate the (...) potential force of the storm to come. In this Article, I offer an alternative to the presently popular vision of private diversity. This alternative is based on a deep commitment to women’s identity and membership interests as well as their dignity and equality. Women’s legal dilemmas often arise from their allegiance to various overlapping systems of identification, authority and belief: in this case, those arising from religious and secular law. I argue that only recognition of women’s multiple affiliations, and the subtle interactions among them, can help resolve these dilemmas. The recognition of multiple legal affiliations does not sit well with the traditional view that a clear line can be drawn between public and private, official and unofficial, secular and religious, or positive law and traditional practice. Instead, to recognize multiple affiliations is to require greater access to, and coordination among, these once competing sources of law and identity. Once we conceive of citizenship more richly, it becomes apparent that individuals and families should not be forced to choose between the rights of citizenship and group membership: instead, they should be afforded the opportunity to express their commitment to both. I offer a vision of how such an alternative might be realized. (shrink)

In order for the Food and Drug Administration to receive the trust and deference it needs to accomplish its mission, it must be seen as relatively impervious to political manipulation. For most of the FDA’s history, it has been seen as an institution driven by scientific expertise, not by political maneuvering. However, the FDA was increasingly criticized during the Bush administration for politicizing decisions such as rejecting an application to grant the “morning after pill,” known as Plan B, over-the-counter status (...) for women of all ages. After an atypical approval process, the FDA approved OTC Plan B use only for women over the age of 18. Because some groups perceive the morning after pill as a form of abortion, the politically appointed leadership of the FDA was suspected of dramatically departing from normal FDA procedures in order to ensure that the application would not be approved. (shrink)

Initially portrayed as the “great equalizer,” the COVID-19 pandemic has proved anything but. This essay recounts the sobering social disparities and vulnerabilities that the pandemic has exposed, especially when it comes to the inequalities that are baked into existing membership regimes, before turning to narratives of hope and democratic renewal. My discussion shines a spotlight on the relationship between borders, (im)mobility, and struggles for recognition and inclusion that have long been central to the practice of citizenship. Focusing on pathways to (...) the acquisition of full membership status for those who are currently denied it, I will deploy logics and policies that have already begun to take shape in different parts of the world, with the goal of amplifying their effects and multiplying their scale. I identify three possible trajectories for postpandemic recovery, two of which offer ways to enhance equality of status and public standing by enlarging the circle of membership: first, through contribution (or what I will term “jus contribuere”), and second, by highlighting what we might call “solidarity in place.” The third reaction, which we might call the “stratification of membership,” pulls in the opposite direction by sharply redrawing the lines—legal, economic, social—that have distinguished insiders from outsiders, and exacerbated patterns of stratification and inequality of status and opportunity that predate the pandemic. (shrink)

Journal Name: The Law & Ethics of Human Rights Issue: Ahead of print.