Theoretical Inquiries in Law 

About: Theoretical Inquiries in Law is an academic journal published by Tel Aviv University. The journal publishes majorly in the area(s): Politics & Sovereignty. It has an ISSN identifier of 1565-1509. Over the lifetime, 432 publications have been published receiving 4737 citations.

Why Citizenship: Where, When and How Children?

Abstract: This Article addresses the general question of "why citizenship?" through the lens of children’s citizenship. It unpacks the different elements of substantive citizenship and considers what they mean for children: membership and participation; rights; responsibilities; and equality of status, respect and recognition. It then discusses the lessons that may be learned from feminist critiques of mainstream constructions of citizenship, paying particular attention to the question of capacity for citizenship. It concludes by suggesting that much of the literature that is making the case for recognition of children as citizens is not so much arguing for the wholesale extension of adult rights and obligations of citizenship to children but recognition that children’s citizenship practices constitute them as de facto, even if not complete de jure, citizens. More broadly, the Article argues that this position points towards an understanding of citizenship which embraces but goes beyond that of a bundle of rights.

Transnational Governance as the Layering of Rules: Intersections of Public and Private Standards

Abstract: The implementation of transnational standards — in codes of conduct, certification, and monitoring initiatives — necessarily intertwines with domestic law and other types of rules. Yet much of the existing literature overlooks or obscures this fundamental point. Indeed, scholars often err either by treating private regulatory standards as transcendent or by viewing implementation as fundamentally a technical problem. This Article argues that understanding the operation of transnational private regulation requires attention to the layering of multiple rules (and the politics surrounding them) in a given location. It develops a framework for examining this layering and illustrates it by briefly looking at two major issues—community rights in sustainable forestry standards and freedom of association in fair labor standards — and their implementation in Indonesia. In various ways, these domains illustrate how conflict and complementarity between public and private standards structure the practice of private regulation.

Constitutionalism as Mindset: Reflections on Kantian Themes About International Law and Globalization

Abstract: Globalization is a topic of some anxiety among international lawyers. On the one hand, its fluid dynamics — fragmentation, deformalization and empire — undermine traditional diplomatic rules and institutions. On the other hand, the effort to reimagine international law in purely managerial terms appears intellectually shallow and politically objectionable. To avoid marginalization and instrumentalization, many lawyers have begun to think about international problems through a constitutional vocabulary and have often cited Kant in that connection. This Article argues that, while it is always possible to grasp the world through a constitutional vocabulary, this does not provide determinate answers to international problems. Instead of an institutional architecture or a set of legal rules, constitutionalism is best seen as a mindset — a tradition and a sensibility about how to act in a political world. Contrary to a widespread assumption, Kant’s political writings may also be read in this fashion and, if so, a meaningful international transformation might necessitate not only legislative or institutional intervention but a professional and perhaps spiritual regeneration.

Public Opinion and the Legitimacy of International Courts

Abstract: Public legitimacy consists of beliefs among the mass public that an international court has the right to exercise authority in a certain domain. If publics strongly support such authority, it may be more difficult for (democratically elected) governments to undermine an international court that takes controversial decisions. However, early studies found that while a majority of the public trusts international courts, this was based on weak attitudes derivative from more general legal values and support for the international institutions. I reexamine these claims with data for European courts, the International Criminal Court, and the International Court of Justice. First, using Google search data and media-analysis I find that, at least in Europe, information-seeking about international courts has increased and is at similar levels to national high courts and prominent international institutions. Second, trust in international courts remains strongly correlated with trust in international and domestic institutions. Countries in which more individuals trust their national courts are also countries in which more individuals trust international courts. Individuals who trust their national courts more are also more trusting of international courts. This undermines at least some interpretations of the credible commitment argument: in the minds of the general public, international courts may not be substitutes for poorly performing domestic courts, but extensions of a functioning rule of law system that they already trust.

Why European Citizenship? Normative Approaches to Supranational Union

Abstract: European citizenship is a nested membership in a multilevel polity that operates at member state and union levels. A normative theory of supranational citizenship will necessarily be informed by the EU as the only present case and will be addressed to the EU in most of its prescriptions, but should still develop a model sufficiently general to potentially apply to other regional unions as well. The Article first describes three basic characteristics of such a polity — democratic representation at the supranational level, internal freedom of movement between member states, and regional limits to external geographic expansion — and argues that a multiplication of such regional unions would contribute to a more just and peaceful international order. Building on this modification of Kant’s model for a global confederation of republics, the contribution explores three alternative approaches for strengthening democratic citizenship in the European Union: a statist approach that aims at transforming the EU into a federal state, a unionist approach whose goal is to strengthen union citizenship vis-a`-vis member state nationality, and a pluralist one that specifies citizenship norms for each level and balances them with each other on the basis of the current state of federal integration. These approaches are then compared with regard to their implications for three policy questions: (1) general status differences and inequality of rights amongst EU citizens living in their country of nationality, EU citizens residing in other member states, third-country nationals, and EU citizens residing outside the territory of the Union; (2) voting rights in European, national, and local elections; and (3) access to Union citizenship and to member state nationality.