Ran Hirschl

Citizenship as Inherited Property

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.

Constitutional Transformation, Gender Equality, and Religious/National Conflict in Israel: Tentative Progress Through the Obstacle Course

Open any travelers guidebook about Israel, and you will soon find a photo of a young woman in military uniform carrying a weapon. She is the female solider. Just like her male peers, she is subject to mandatory conscription to the defense forces when she reaches the age of 18. Her image is an emblem of gender equality. Unfortunately, the status of women in Israel does not match the mythology this image suggests. This gap between myth and reality makes Israel a living laboratory for the study of womens rights. As a Jewish and democratic state, it hosts a constant battle over its religious, national and cultural identity, as well as engaging daily with internal and external challenges to its very existence. In each of these struggles, womens rights, among others, are tested to the limit. This chapter provides an overview of the current status of womens rights in Israel. Our intention is to analyze how, why, and under what conditions individual women and feminist organizations have been successful in advancing the gender equality agenda through constitutional rights jurisprudence and legislative initiatives. We also hope to evaluate the limits of such change by addressing the nature of the enduring inequalities that Israeli women still face in navigating the obstacles of a deeply divided society. Our discussion is divided into three major sections. We begin with an outline of pertinent elements of Israels unique constitutional system. Next, we analyze landmark constitutional-rights jurisprudence pertaining to the equal treatment of women in different social contexts, including the military, the home, the public sector, the private labor market, and Israels unique system of religious councils. In this second section, we also address new legislation aimed at protecting victims of domestic violence, as well as combating sexual harassment in the military and in the workplace. In the third section of this chapter, we move on to discuss the intersection of gender, religiosity and nationality in Israel, as well as the complex social and legal status of women as markers of identity in a multi-ethnic, multi-religious polity.

In Search of an Identity: Voluntary Foreign Citations in Discordant Constitutional Settings

Accounts of voluntary judicial reference to foreign sources in noncanonical settings are rare. The general literature on the subject stresses the importance of factors such as global convergence and inevitability of engagement with foreign jurisprudence; judicial prestigeor legitimacy-enhancing factors; and structural features (e.g. constitutional provisions that call for foreign citations, linguistic permeability, a legal tradition or trajectory of legal education that affects a given apex courts ability and willingness to cite foreign jurisprudence). Whereas these accounts provide illuminating explanations for the rise and variance in the practice of global judicial dialogue, they leave out a crucial factor: the socio-political context within which constitutional courts and judges operate, and how this affects whether and where the judicial mind travels in its search for pertinent foreign sources to reference. In the realm of voluntary reference to foreign law in transitional or discordant constitutional settings, judicial choices as to what to cite and what not to cite cannot be understood in isolation from the views of constitutional courts and judges with respect to the “identity” dimension—the attempt to define who “we” are as a political community, and to articulate in a public way what “our image” or “place” in the world are or should be. Instances of strategic, ad-hoc judicial recourse to foreign law are obviously inseparable from the concrete political settings within which they take place. In post-authoritarian or newly created constitutional settings, such choices can signal a judicial commitment to breaking with a nations less-than-dazzling past or to belong to a certain group of polities. Such choices may likewise help courts and their backers advance certain worldviews and policy preferences that may be otherwise contested in majoritarian decision-making arenas. Importantly, the foreign references that peak courts in discordant constitutional settings (e.g. Israel, Pakistan, Malaysia, India) select, reject or ignore reflect the judicial position vis-a-vis the nations contested collective identity quandaries. These judicial picks may thus be a channel for and an indicator of constitutional and political identity formation.

Opting out of 'Global Constitutionalism'

Abstract Much has been written about the global convergence on constitutional supremacy. Yet, a closer look suggests that while constitutional convergence trends are undoubtedly extensive and readily visible, expressions of constitutional resistance or defiance may in fact be regaining ground worldwide. This may point to a paradox embedded in global constitutionalism: the more expansive constitutional convergence trends are, the greater the likelihood of dissent and resistance are. In this article, I chart the contours of three aversive responses to constitutional convergence: neo-secessionism, nullification, and deference to local authority, and draw on an array of comparative examples to illustrate the distinct logic and characteristics of each of these responses. Taken together, these increasingly common expressions of defiance provide ample evidence that global constitutionalism is not the only game in town. Neo-secessionism, nullification, and other forms of constitutional dissent and “opting out” may thus be viewed as a reaction against the centralization of authority and the decline of the local in an increasingly—constitutionally and otherwise—universalized reality.