Theoretical Inquiries in Law最新文献

{"title":"Disorder and Discontinuity in Law and Morality","authors":"L. Katz, Alvaro Sandroni","doi":"10.1515/til-2021-0003","DOIUrl":"https://doi.org/10.1515/til-2021-0003","url":null,"abstract":"Abstract For every legal concept X, there are clear instances exemplifying an X and clear instances exemplifying a non-X. The cases that come before courts are those that seem to lie in between, being neither clearly an X nor clearly a non-X. It is tempting to think that, being in-between, they should receive an in-between treatment, that is, to the extent that they are an X they should be treated as an X. If they are sixty percent toward being an X, they should get sixty percent of the treatment due an X. But this presupposes that in-between cases can be rank-ordered at least roughly according to the degree of their X-ness. This Article explains why that generally cannot be done and why courts therefore go for an either/or approach: something gets treated either as an X or as a non-X. The explanation is rooted in the kind of phenomena explored in the theory of social choice and multi-criterial decision-making.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"17 1","pages":"31 - 44"},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90641426","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights during Wartime","authors":"S. Issacharoff, R. Pildes","doi":"10.2202/1565-3404.1084","DOIUrl":"https://doi.org/10.2202/1565-3404.1084","url":null,"abstract":"Times of heightened risk to the physical safety of their citizens inevitably cause democracies to recalibrate their institutions and processes and to reinterpret existing legal norms, with greater emphasis on security, and less on individual liberty, than in \"normal\" times. This article explores the ways in which the American courts have responded to the tension between civil liberties and national security in times of crises. This history illustrates that courts have rejected both of the two polar positions that characterize public discourse on these issues. Civil libertarians argue that political bodies are too easily gripped by passions, hysteria, and self-interest in these times and that courts therefore ought to play a central role in protecting liberty. Executive unilateralists argue that the qualities that uniquely characterize the executive branch, such as decisiveness, access to information, and efficiency, must become so dominant in these moments that few checks, if any, should constrain executive prerogatives. Oddly, civil libertarians and executive unilateralists find implicit consensus in the view that, in times of war, courts have tended not to play a significant role in overseeing executive power. We argue to the contrary: historically, a significant constitutional tradition of judicial scrutiny in the United States during times of war does exist. But this scrutiny does not take the form of courts making first-order substantive judgments about the content of liberty or other claimed constitutional rights. Nor does it take the form of judicial assessment of how significant or credible the national security claims of the executive branch might be. Instead, judicial oversight has been focused on preserving the institutional structures and processes through which decisionmaking on these issues takes place. The judicial role has centered on the second-order question of whether the right institutional processes have been used to make the decisions at issue, rather than on what the content of the underlying rights ought to be. This approach has historically rejected or resisted most claims of executive unilateralism. When courts have upheld the government's actions, they have done so only after a judgment that Congress, as well as the executive, has endorsed the action. This approach has also rejected the civil libertarian framework. When courts find bilateral institutional endorsement, they have typically accepted the joint political judgment of how liberty and security tradeoffs ought to be made. By focusing on congressional endorsement of emergency measures, the courts have created a broad-based political accountability for the actions taken in the name of national security. We suggest that even if congressional endorsement is more apparent than real in some of these contexts, the judicial maintenance of this structure of rhetorical justifications sustains desirable understandings of political structure. Because the President and Congr","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"06 1","pages":"1 - 45"},"PeriodicalIF":0.0,"publicationDate":"2020-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85973742","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Frontmatter","authors":"","doi":"10.1515/til-2020-frontmatter2","DOIUrl":"https://doi.org/10.1515/til-2020-frontmatter2","url":null,"abstract":"","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"51 2 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76590357","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"In Pursuit of Political Imagination: Reflections on Diasporic Jewish History","authors":"J. Cooper","doi":"10.1515/til-2020-0014","DOIUrl":"https://doi.org/10.1515/til-2020-0014","url":null,"abstract":"Abstract In recent years, scholars of Jewish politics have invested political hopes in the revival of “political imagination.” If only we could recapture some of the imaginativeness that early Zionists displayed when wrestling with questions of regime design, it is argued, we might be able to advance more compelling “solutions” to the Israeli-Palestinian conflict. Yet how does one cultivate political imagination? Curiously, scholars who rehearse the catalogue of regimes that Jews have historically entertained seldom pose this question. In this Article, I revisit a historical episode—the appropriation of diasporic historical narratives by Zionists in mandatory Palestine—in an effort to cultivate a richer political imaginary. I analyze the labor Zionist deployment of Simon Dubnow’s influential master narrative, focusing on a 1926 speech in which David Ben Gurion depicts the autonomist regime that he advocates as a variation upon diasporic political practices. On my reading, this episode illustrates the dilemmas that confront thinkers who invest political hopes in regime design. To realize the promise that new political configurations may emerge from reflections upon Jewish history, I argue, we must develop a new account of political agency, once foundational assumptions of the nation-state have been suspended.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"57 1","pages":"255 - 284"},"PeriodicalIF":0.0,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84717783","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Justifying the Right of Return","authors":"David Miller","doi":"10.1515/til-2020-0018","DOIUrl":"https://doi.org/10.1515/til-2020-0018","url":null,"abstract":"Abstract With the Israeli-Palestinian conflict in mind, this Article asks whether there is a human right to return to one’s country, and if so what justifies it. Although such a right is widely recognized in international law, who can claim it and on what basis remains ambiguous; the ambiguity is revealed by asking what “country” means in “return to one’s country.” I argue that to treat the right simply as an adjunct of citizenship is too narrow an approach, even though the right has a role to play in managing inter-state relations. As with other human rights, personal autonomy might be proposed as a justification for the right of return. But although the autonomy interest in developing long-term life-plans may explain the right not to be forcibly displaced from the place where you live, it cannot explain why there is a right to return once displaced, particularly in the case of people who enjoy an adequate set of options elsewhere. Instead we need to invoke the need to belong to a homeland, access to which the right of return protects. The Article explores a homeland’s different dimensions and considers various respects in which the need to belong might be thought too indeterminate to ground a right. Finally it distinguishes and evaluates the return claims of Jews and Palestinians to Israel/ Palestine; only Palestinians whose homeland this remains can claim a human right of return as analyzed and defended here.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"45 1","pages":"369 - 396"},"PeriodicalIF":0.0,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88055967","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"How the Law of Return Creates One Legal Order in Palestine","authors":"H. Jabareen","doi":"10.1515/til-2020-0021","DOIUrl":"https://doi.org/10.1515/til-2020-0021","url":null,"abstract":"Abstract The prevailing discourse in Israeli academia on justifying the values of Israel as a “Jewish and democratic state” takes the form of a debate involving questions of group rights of a national minority, as in any liberal democracy. The framework of this discourse relies on three interconnected, hegemonic assertions. These assertions assume the applicability of equal individual rights, put aside the Occupation of the West Bank and Gaza as irrelevant for the “Jewishness” of the state as it belongs to a different rule of recognition, and conceptualize the Green Line based on majority-minority relations with Jewish group rights, including the Law of Return, as not leading to discrimination against individuals. I contend that these assertions are invalid and that colonialism is the relevant framework of Israel’s constitutional identity in Palestine (the Green Line, the West Bank including Jerusalem and Gaza). I argue there is one Constitution in Palestine based on one conception of sovereignty, regardless of any rules of recognition where the Law of Return, together with the value of “preserving a Jewish majority,” constitutes its very essence that targets the Palestinians as such. The Article presents a case-law study regarding family life between spouses and their children in Palestine. This case-law reveals an unfamiliar phenomenon. Unlike the plurality of written laws that characterize colonial regimes, the Israeli legal system introduces a unique model in which racial domination is created mostly by decisionism of the Court, out of the written laws and regardless of any rule of recognition.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"12 1","pages":"459 - 490"},"PeriodicalIF":0.0,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87002374","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Zionism and Political Liberalism: The Right of Scattered Nations to Self-Determination","authors":"Yitzhak Benbaji","doi":"10.1515/til-2020-0013","DOIUrl":"https://doi.org/10.1515/til-2020-0013","url":null,"abstract":"Abstract This Article offers a defense of egalitarian Zionism that, unlike Chaim Gans’s argument for this view, does not appeal to the Jewish problem in justifying the Zionist requirement for a state with a dominant Jewish community. The argument extracts from the egalitarian principles that underlie John Rawls’s political liberalism, a conception of global justice according to which members of a scattered nation are entitled to a fair opportunity to establish a new state within which they enjoy the advantage of demographic dominance","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"71 1","pages":"229 - 254"},"PeriodicalIF":0.0,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85743832","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Historical Justice: On First-Order and Second-Order Arguments for Justice","authors":"Raef Zreik","doi":"10.1515/til-2020-0022","DOIUrl":"https://doi.org/10.1515/til-2020-0022","url":null,"abstract":"Abstract This Article makes three moves. First it suggests and elaborates a distinction—already implicit in the literature—between what I will call the first and second order of arguments for justice (hereinafter FOAJ and SOAJ). In part, it is a distinction somewhat similar to that between just war and justice in war. SOAJ are akin to the rules governing justice in war or rules of engagement, while bracketing the reasons and causes of the conflict. FOAJ on the hand are those principles of justice and arguments that derive their power from the distribution of entitlements, rights and duties of the parties prior to the conflict they are supposed to adjudicate. FOAJ aim in many ways to restore the distribution of entitlements that existed on the eve of the conflict. Thus, all arguments for corrective or historical justice could be viewed as FOAJ. The second move in the paper associates FOAJ with the Palestinians and SOAJ with Zionism first and Israel later on. The more the settler Zionist project became a reality, the more the Palestinian population felt a threat to their national project and exercised resistance, including violent resistance. The more Palestinians showed resistance, the more appealing and more relevant SOAJ of self-defense, security, and emergency. The third move in the paper is to ask questions regarding the relation between FOAJ and SOAJ offer a critique of the distinction itself, and offers a critique of the way the distinction is being deployed in the case of Israel-Palestine. The Israeli claims for self-defense and security(SOAJ) are becoming so pervasive that they threaten to suspend the claims for historical justice forever (FOAJ), to the point that everything, even the regime that is crystallizing in front of our eyes as an Apartheid regime, is being justified as a temporal necessity. Israel deployment of SOAJ is done in bad faith.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"27 1","pages":"491 - 529"},"PeriodicalIF":0.0,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83305935","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Inclusion and Representation: The Settlement of Property Claims of the Dispossessed in the Aftermath of an Armed Conflict","authors":"Tamar Megiddo, E. Benvenisti","doi":"10.1515/til-2020-0019","DOIUrl":"https://doi.org/10.1515/til-2020-0019","url":null,"abstract":"Abstract This Article examines the authority of states to settle individual private property claims in post–conflict negotiations towards settlement. We analyze this question by exploring the limits of states’ authority to take or limit private property rights for the public good. We argue that this authority rests on two cumulative justifications: the inclusion of the property owners among the public that stands to benefit from the public good, and their representation by the government that decides on the taking of the property. In post–conflict settlement, the negotiating states may redistribute both private property and the public good between and within their respective communities. Their authority to redistribute continues to rests on the same justifications of inclusion and representation. Hence, their authority extends only to the redistribution of property of owners who are members of the respective communities that negotiate the agreement, and who are represented by a negotiating government.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"115 1","pages":"397 - 425"},"PeriodicalIF":0.0,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80288537","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Inheriting the Right of Return","authors":"Victor Tadros","doi":"10.1515/til-2020-0017","DOIUrl":"https://doi.org/10.1515/til-2020-0017","url":null,"abstract":"Abstract This Article assesses one kind of argument for an intergenerational right of return in the context of the Israel/Palestine conflict. The question is whether descendants of those who were made refugees in the 1948 War can acquire occupancy rights from their parents through inheritance and bequest over territory that they have never lived on. Standard arguments for their inheriting such rights fail for a range of reasons. However, a less familiar argument for inheritance or bequest succeeds—descendants can acquire such rights because their parents have an interest in their being able to live the kind of life that, due to the violation of their rights, they were deprived of.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"9 1","pages":"343 - 367"},"PeriodicalIF":0.0,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84475248","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}