I will account for the different conceptions of citizenship by looking at the opposite of citizenry.
Problems at the Roots of Law: Essays in Legal and Political Theory - Joel Feinberg - Google книги
The political model holds the subject sujet in opposition to the citizen citoyen , entailing problems related to the democratic quality of institutions. Law and jurisprudence look at citizenship by trying to limit the numerous hard cases arising in a world of migration where the opposite of the citizen is the alien and the stateless.
While in social science citizenship is the opposite of exclusion and represents social membership, my aim is therefore to distinguish and clear out these three different semantic areas. This essay is presented in four sections: First, I briefly recall the case of the erased. The second section focuses on discourse analysis so as to enucleate the three different meanings of citizenship that we find in the current debate according to the prevailing disciplinary fields: political, legal and social sciences.
Thirdly, attention will be directed to the composition of the different semantic areas that are connected to the term citizenship. I suggest that we are now dealing with a threefold notion. This duality has fascinated many in the course of time. As some thousand people born in other parts of ex-Yugoslavia applied for citizenship, on February 26 th , tens of thousands were deleted from those official records. Again, many fell through the net.
With the identity, he simultaneously lost the fatherhood. Rather, it is an interesting issue because it seems to revive the theory of citizenship elaborated by Hannah Arendt almost half a century ago, when she claimed that human rights, that were supposed to be inalienable, proved to be ineffective, even in States where the constitution was based upon them, when a certain number of people appeared who were not citizens of any sovereign state. However, at least at the level of normative commitment, the post-war period still marks a significant decoupling of human rights from citizenship.
Until a few years ago not a single line on citizenship was generally found in handbooks, encyclopedias and dictionaries dedicated to political thought or to social sciences. Yet, the understanding of citizenship often lingers on more traditional assessments, characterised by clear-cut disciplinary divides. The result has been that attempts to bridge the various perspectives at hand continue to meet increasing difficulties. In fact, legal scholars hardly ever take into consideration sociological case-studies, while political scientists turn a blind eye to issues addressed in international private law and so on.
Of greater weight are some of the misinterpretations embedded in the debate, which seem to be far too common on both sides. Certainly, all the emphasis laid on citizenship has brought the notion into the limelight.
However, there are some negative effects linked to this evolution. This leads to a conceptual overstretch that deprives citizenship of its specific political and legal meanings. Moreover, the limelight on citizenship has also contributed to loosening up the fundamental difference between status civitatis and status personae.
2. The Contestedness of the Rule of Law
In the current debate, the two figures of citizenship and personhood seem to be exceedingly confused. An interesting statement is for example that T. There seems to be a very peculiar form of inflation behind this blurring of genres, which consists of trying to entitle the citizen to a long list of rights, which in reality has a quite different reference, namely the person as such.
This is why it is important to clarify the conditions enabling a specific right to be plausibly referred to the category of citizenship. Therefore, discourse analysis is an important tool so as to unpack in proper detail the very notion of citizenship.
Unless we are content to regard a vague level of discussion as the default position, we need detailed analysis into the concept and an empirical investigation into its various modes of utilization in our discourses. And it is our task to check whether this word is an accurate signum , if it grasps a specific configuration of the world or if it only projects desires.
We need to keep these different meanings apart since they obey different sets of rules in the use we make of them. Instead, we shall ask what is opposed to citizenship. How does the negative image look? I shall now illustrate the composition of these three semantic areas, by explaining for each one the structure and content of the basic dichotomy; from where it originates historically; and what kind of problems it is thought to resolve. Then I will recall briefly in what way some crucial problems that we face in Europe today are connected to the three different ways of understanding citizenship.
The citizen is determined by some form of ius activae civitatis. More specifically, we might say that the political understanding of citizenship is related to the principle of affectedness , a key tenet of democratic theory, according to which people should have a fair say on decisions affecting them. Indeed, the traditional legal perspective holds citizenship unequivocally to be the status conferred upon those who are entitled to various active and passive positions in relation to the State.
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This is also why this understanding is compatible with most political regimes, regardless of the democratic tenure of the constitutional framework. In the long history of the legal civis , the problem of entitlement has been connected to the extension of the legal order and its homogeneity. Most bilateral treaties in international private law, as well as international agreements tend to avert that specific situation. Convention on the citizenship of married women, signed on the 29 th of January in New York.
The main instrument for preventing potential conflict is still constituted by bilateral treaties, that remain a very time-consuming and rigid tool for fixing the many hard cases that arise. If your book order is heavy or oversized, we may contact you to let you know extra shipping is required.
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This book is a series of essays exploring the fundamental questions concerning the legitimacy of law, particularly in regard to the relationship to morality. Bookseller Inventory Ask Seller a Question. About this title Synopsis: Feinberg is one of the leading philosophers of law of the last forty years. Insofar as a judge decides a difficult case by making new law in the exercise of discretion, the case is being decided on the basis of a law that did not exist at the time the dispute arose.
If, for example, a judge awards damages to a plaintiff by making new law in the exercise of discretion, it follows that she has held the defendant liable under a law that did not exist at the time the dispute arose. And, as Dworkin points out, it seems patently unfair to deprive a defendant of property for behavior that did not give rise to liability at the time the behavior occurred. Nevertheless, Dworkin's view fares no better on this count. While Dworkin acknowledges the existence of difficult cases that do not fall clearly under a rule, he believes they are not resolved by an exercise of judicial discretion.
On Dworkin's view, there is always a right answer to such cases implicit in the pre-existing law. Of course, it sometimes takes a judge of Herculean intellectual ability to discern what the right answer is, but it is always there to be found in pre-existing law. Since the right answer to even hard legal disputes is always part of pre-existing law, Dworkin believes that a judge can take property from a defendant in a hard case without unfairness Dworkin , pp.
But if fairness precludes taking property from a defendant under a law that did not exist at the time of the relevant behavior, it also precludes taking property from a defendant under a law that did not give reasonable notice that the relevant behavior gives rise to liability. Due process and fundamental fairness require reasonable notice of which behaviors give rise to liability. As long as Dworkin acknowledges the existence of cases so difficult that only the best of judges can solve them, his theory is vulnerable to the same charge of unfairness that he levels at the discretion thesis.
Fuller argues that law is subject to an internal morality consisting of eight principles: P1 the rules must be expressed in general terms; P2 the rules must be publicly promulgated; P3 the rules must be for the most part prospective in effect; P4 the rules must be expressed in understandable terms; P5 the rules must be consistent with one another; P6 the rules must not require conduct beyond the powers of the affected parties; P7 the rules must not be changed so frequently that the subject cannot rely on them; and P8 the rules must be administered in a manner consistent with their wording Fuller , p.
On Fuller's view, no system of rules that fails minimally to satisfy these principles of legality can achieve law's essential purpose of achieving social order through the use of rules that guide behavior. A system of rules that fails to satisfy P2 or P4 , for example, cannot guide behavior because people will not be able to determine what the rules require. Accordingly, Fuller concludes that his eight principles are "internal" to law in the sense that they are built into the existence conditions for law: "A total failure in any one of these eight directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all" Fuller , p.
These internal principles constitute a morality, according to Fuller, because law necessarily has positive moral value in two respects: 1 law conduces to a state of social order and 2 does so by respecting human autonomy because rules guide behavior.
Since no system of rules can achieve these morally valuable objectives without minimally complying with the principles of legality, it follows, on Fuller's view, that they constitute a morality. Since these moral principles are built into the existence conditions for law, they are internal and hence represent a conceptual connection between law and morality that is inconsistent with the separability thesis. Hart responds by denying Fuller's claim that the principles of legality constitute an internal morality; on Hart's view, Fuller confuses the notions of morality and efficacy:.
Poisoning is no doubt a purposive activity, and reflections on its purpose may show that it has its internal principles. But to call these principles of the poisoner's art "the morality of poisoning" would simply blur the distinction between the notion of efficiency for a purpose and those final judgments about activities and purposes with which morality in its various forms is concerned Hart , pp.
On Hart's view, all actions, including virtuous acts like lawmaking and impermissible acts like poisoning, have their own internal standards of efficacy. But insofar as such standards of efficacy conflict with morality, as they do in the case of poisoning, it follows that they are distinct from moral standards.
Thus, while Hart concedes that something like Fuller's eight principles are built into the existence conditions for law, he concludes that they do not constitute a conceptual connection between law and morality. Unfortunately, Hart's response overlooks the fact that most of Fuller's eight principles double as moral ideals of fairness. For example, public promulgation in understandable terms may be a necessary condition for efficacy, but it is also a moral ideal; it is morally objectionable for a state to enforce rules that have not been publicly promulgated in terms reasonably calculated to give notice of what is required.
Similarly, we take it for granted that it is wrong for a state to enact retroactive rules, inconsistent rules, and rules that require what is impossible. Poisoning may have its internal standards of efficacy, but such standards are distinguishable from the principles of legality in that they conflict with moral ideals. Nevertheless, Fuller's principles operate internally, not as moral ideals, but merely as principles of efficacy.
As Fuller would likely acknowledge, the existence of a legal system is consistent with considerable divergence from the principles of legality. Legal standards, for example, are necessarily promulgated in general terms that inevitably give rise to problems of vagueness. And officials all too often fail to administer the laws in a fair and even-handed manner-even in the best of legal systems. These divergences may always be prima facie objectionable, but they are inconsistent with a legal system only when they render a legal system incapable of performing its essential function of guiding behavior.
Insofar as these principles are built into the existence conditions for law, it is because they operate as efficacy conditions-and not because they function as moral ideals. Fuller's jurisprudential legacy, however, should not be underestimated. While positivists have long acknowledged that law's essential purpose is to guide behavior through rules e.
Fuller's lasting contribution to the theory of law was to flesh out these implications in the form of his principles of legality. Dworkin argues that, in deciding hard cases, judges often invoke legal principles that do not derive their authority from an official act of promulgation Dworkin , p.
These principles, Dworkin believes, must be characterized as law because judges are bound to consider them when relevant. But if unpromulgated legal principles constitute law, then it is false, contra the pedigree thesis, that a proposition of law is valid only in virtue of having been formally promulgated. According to Dworkin, principles and rules differ in the kind of guidance they provide to judges:. Rules are applicable in an all-or-nothing fashion.
If the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision But this is not the way principles operate On Dworkin's view, conflicting principles provide competing reasons that must be weighed according to the importance of the respective values they express.
Thus, rules are distinguishable from principles in two related respects: 1 rules necessitate, where principles only suggest, a particular outcome; and 2 principles have, where rules lack, the dimension of weight. Dworkin cites the case of Riggs v.
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