Remedying the Inequalities of Economic Citizenship in Europe: Cohesion Policy and the Negative Right to Move

European supranational citizenship draws the boundaries of a community of citizens, sharing the status of economic actors in the single market. The specter of inequality threatens however the resulting promise of shared membership: economic citizens face profoundly different opportunities for economic involvement, depending on their nationality and residence within the Union. Free movement rights open up a narrow way out of inequality by enabling European citizens to relocate; however, they cannot alone solve the inequality problem that economic citizenship poses. In the quest for alternative remedies to this problem, this article explores the potential of European cohesion policy. It argues that cohesion policy, by addressing gaps in wealth throughout the Community, draws the traits of a negative right to move, which adds to the protection of European economic citizenship. Through the cohesion lens, the premises are laid for a renewed assessment of the project of shared economic citizenship.     

Citizenship,Belonging and Attachment in the ‘War on Terror’

The ‘war on terror’ has had an enormous impact on citizens’ legal rights and legal status. Using data from interviews with British Pakistani Kashmiri Muslims, this paper explores how the change to citizens’ legal rights and legal status in the ‘war on terror’, the legal dimension of citizenship, has impacted the psychological dimension of citizenship. Through denoting legal rights, equality and status the study revealed the powerful role of the state and the police in shaping citizens’ perceptions of the legal dimension of citizenship. The paper explores how changes to participants’ perceptions of their legal status and legal rights are instrumental in shaping the psychological dimension of citizenship—participants’ sense of loyalty, belonging and attachment to their British identity and their Islamic identity.     

The New Face of Legal Inequality: Noncitizens and the Long‐Term Trends in Sentencing Disparities across U.S. District Courts, 1992–2009

In the wake of mass immigration from Latin America, legal scholars have shifted focus from racial to ethnic inequality under the law. A series of studies now suggest that Hispanics may be the most disadvantaged group in U.S. courts, yet this body of work has yet to fully engage the role of citizenship status. The present research examines the punishment consequences for non‐U.S. citizens sentenced in federal courts between 1992 and 2009. Drawing from work in citizenship studies and sociolegal inequality, I hypothesize that nonstate members will be punished more severely than U.S. citizens, and any trends in Hispanic ethnicity over this period will be linked to punitive changes in the treatment of noncitizens. In line with this hypothesis, results indicate a considerable punishment gap between citizens and noncitizens—larger than minority‐white disparities. Additionally, this citizenship “penalty” has increased at the incarceration stage, explaining the majority of the increase in Hispanic‐white disparity over the past two decades. As international migration increases, these findings call for greater theoretical and empirical breadth in legal inequality research beyond traditional emphases, such as race and ethnicity.     

Union Citizenship—Metaphor or Source of Rights?

After nearly ten years of introducing Union Citizenship as a concept into Community law it seems time to draw a preliminary evaluation of its importance in reshaping the legal and social positions of citizens living in the EU, more precisely in its Member States. The balance sheet is however mixed: On the one hand, the prevalent position in legal doctrine seems to be that Union citizenship is merely a derived condition of nationality, while on the other side certain fundamental rights are based on criteria other than citizenship/nationality alone. The European Charter on Fundamental Rights will not overcome this dilemma. This can be shown in conflictual areas which are in the centre of discusion in the paper, namely the (limited!) use of the concept of citizenship to extend existing free movement rights in the new case law of the Court of Justice, the resistance towards granting 'quasi-citizenship' rights to third country nationals lawfully resident in the Union for a longer period of time, and the yet unsolved problem of imposing 'implied duties' based on a doctrine of ' abus de droit ' upon citizens paralleling the rights granted to them. As a conclusion the author is of the opinion that the question asked for in the title can be answered in the positive only to a limited extent. Citizenship appears to be a sleeping fairy princess still be be kissed awake by the direct effect of Community law.     

The citizen‐makers: Ethical dilemmas in immigrant integration

The topic of citizen‐making—turning migrants into citizens—is one of the most politically contested policy areas in Europe. Access to European citizenship is governed by national law with almost no EU regulation. The Article brings to the fore normative concerns associated with citizen‐making policies in Europe (Section 2). It examines ethical dilemmas involved in the process of creating new citizens (Section 3) and promotes the adoption of a European legal framework on access to citizenship (Section 4). The overall claim is that every newcomer will be required to demonstrate, as a prerequisite for citizenship, attachments to the constitution of the specific Member State, yet the test will be functional, flexible and non‐exclusive. As the topic of EU citizenship law is currently at the centre of the European agenda, this article has both theoretical significance and policy implications.     

EU citizenship and (fundamental) rights: Empirical,normative, and conceptual problems

There is a close connection between EU citizenship and rights, both in the law and literature. This article claims that EU lawyers' understanding of EU citizenship and rights suffers from empirical, normative, and conceptual shortcomings. I will point out that there has been insufficient awareness for the boundedness of EU citizenship, the political structure of the EU and the constraints this (realistically) imposes on the ‘meaningfulness’ of EU citizenship. EU citizenship must not be understood as requiring an elaborate set of equal rights for all Union citizens throuzghout the EU, but valued for its ability to allow its status holders to enjoy (almost) full membership in the Member States of which they do not possess nationality.     

Theoretical Problems of the Development and Convergence of Nations

The truly socialist solution of the nationality question in our country — the abolition of all forms of inequality of nations and the establishment of friendship and fraternal cooperation among peoples — is of worldwide historical importance. The scale and significance of this question are testified to if only by the fact that today there are about 160 states in the world and more than 2,000 nations, nationalities, and ethnic groups. Some linguists hold that the peoples of the earth express themselves in over 7,000 different languages (this probably includes dialects). In any case, it is quite obvious that most — one might say the overwhelming majority of — nations, peoples, and ethnic groups live in multinational states. On this basis alone, the nationality question occupies a very important place in the life of society.     

Does the Centrality of Values in the Lisbon Treaty Promise More Than It Can Actually Offer? EU Biometrics Policy as a Case Study

The Treaty of Lisbon introduced the term ‘values’ in EU primary law. This development coincided with the granting to the Charter of Fundamental Rights of the same legal force as the Treaties. The question remains, though, how the prominence of values is actually shaping EU law and policy. This paper critically appraises the ways that certain values translated into the Charter's principles and rights are being construed under the EU policy for biometrics, a security technology whose use is being actively promoted by the EU. We conclude that the balancing of pertinent values, namely security and liberty, owe to a great deal to political and economic considerations that shape EU politics. Research priorities, combined with those of EU security policy, in particular, the fight against terrorism, then tend to prevail over ethically or morally based legal claims in respect of biometrics.     

Toward a Theory of Compliance in State‐Regulated Livelihoods: A Comparative Study of Compliance Motivations in Developed and Developing World Fisheries

This article addresses the question of how states can best promote citizens' compliance with laws that regulate livelihoods. Based on ethnographic data from fishing communities in three countries—Norway, Canada, and South Africa—the article compares compliance motivations that exist under different socioeconomic and political conditions. The comparisons give rise to a typology of three compliance motivations: deterrence, moral support for the law's content, and the legislator's authority. This article then identifies three governable preconditions—enforcement, empowerment of citizens, and civic identity—that respectively explain these motivations. The article argues that the compliance discourse in a given type of state must be framed such that it includes at least the governable preconditions for compliance that have not been met in that state. Consequently, a functional compliance strategy would vary between different state types. The article thus questions the transferability of the developed world's compliance discourses to the developing world.     

How Transparent are EU ‘Comitology’ Committees in Practice?

Much of the debate on transparency is normative in nature: more transparency is ‘good’ from the perspective of democratic accountability. After all, without information on what decisions are being taken and by whom, it will not be possible for various accountability forums to hold actors to account. This article goes beyond the rhetoric on the need for more transparency in the political system of the EU and examines, in practice as a matter of empirical research, how much transparency there really is. It also goes beyond a purely legal approach to access to information that depends upon the active participation of citizens and others in challenging refusals by specific institutions to grant access to specific documents. We are interested rather in the question as to what extent the institutions are systematically and pro‐actively providing access to their documents via the internet. We focus on the Register of Comitology of the European Commission as a relatively limited case study and, within this context, limit ourselves further to a study of all the documents published in the latest year for which a benchmark was available—2005. Are all comitology documents that exist in fact made available through this public register?     

Double Nationality in the EU: An Argument for Tolerance

Currently the Member States' nationalities, short of being abolished in the legal sense, mostly serve as access points to the status of EU citizenship. Besides, they provide their owners with a limited number of specific rights in deviation from the general principle of non‐discrimination on the basis of nationality, and—what is probably more important for the majority of their owners—trigger legalised discrimination in the wholly internal situations. Viewed in this light, the requirement to have only one Member State's nationality enforced in national law by 10 Member States seems totally outdated and misplaced. This paper focuses on the legal analysis of this controversial requirement.     

Policing terrorism in India

Policing terrorism in India is fraught with difficulty. India is a large, heterogeneous democracy that is surrounded by countries experiencing their own intense problems with terrorism. The legal structure, inherited from the colonial past, is struggling to cope with the demands placed upon it by a country of 1.1 billion. India is a federation and this also complicates the structures needed for counter-terrorism. Despite the democratic framework, policing in India is largely an inheritance from the non-democratic colonial past—a past that paid scant regard to the doctrine of separation of powers. Given these problems, India’s performance in policing terrorism has been mixed. We should not look for any early resolution of the problem of terrorism, either through preventive investigation or political amelioration of the issues that contribute to terrorism. But for all of that, India has done well to adhere to its basic democratic norms in the face of what is, by Western standards, a major terrorism problem.     

Punishment, Socially Deprived Offenders, and Democratic Community

The idea that victims of social injustice who commit crimes ought not to be subject to punishment has attracted serious attention in recent legal and political philosophy. R. A. Duff has argued, for example, a states that perpetrates social injustice lacks the standing to punish victims of such injustice who commit crimes. A crucial premiss in his argument concerns the fact that when courts in liberal society mete out legitimate criminal punishments, they are conceived as acting in the name of all citizens—on behalf of the whole political community. Resisting this premiss, Peter Chau has suggested that courts ought to be conceived as acting only in the name of “just citizens”: citizens who cannot be plausibly seen as having contributed to distributive injustice. When conceived in this way, Chau argues, courts can no longer plausibly be regarded as lacking standing to punish. This article uses the debate between Duff and Chau to explain why the question of whether to punish socially deprived offenders can only be answered adequately when connected to broader concerns of democratic theory. Specifically, it argues that Chau’s proposal is not available within the context of the kind of political community upon which (Duff rightly believes) a system of liberal criminal law depends for its justification and maintenance: a community in which citizens see the law as embodying shared norms whose specific demands they disagree about. State officials are morally permitted to see themselves as acting on behalf of a subset of the citizenry, I argue, only in circumstances of democratic crisis: circumstances in which a moral community can no longer be plausibly said to exist.     

Juridification and the Construction of Social Citizenship

The article elaborates on the legal construction of citizenship within the welfare state. The concept of citizenship is constructed from the perspective of rights and is closely related to the legal development of various fields of law. Juridification processes in the welfare state directly concern the construction of social citizenship and indirectly affect both political and civil citizenship. Concentrating on juridification within the framework of the welfare state implies that the development of welfare law is the focal point of the article. To understand the implications of juridification processes in the welfare state, we concentrate on the relationship between social citizenship, on one hand, and political and civil citizenship, on the other, and consider the implications of the legal and institutional construction of social citizenship. Social rights may confine the scope of political and civil citizenship and at the same time enhance individual freedom and the extent of political action.     

Ideals and Practices in the Rule of Law: An Essay on Legal Politics

Massoud, Mark Fathi. 2013 . Law's Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan . Cambridge: Cambridge University Press. Pp. 277. Paper $34.99. This essay responds to the three commentators in the symposium on my book, Law's Fragile State, by describing the sociolegal study of the rule of law as an investigation into both a set of ideals (the rule of law as a normative question) and a set of practices (the rule of law as an empirical question). Studying the rule of law involves understanding the contingent nature of its ideals as well as investigating the actual work that lawyers, judges, state officials, aid workers, activists, and others have done in specific contexts to promote legal remedies to social or political ills. These overlapping layers of the study of the rule of law—ideals and practices, normative and empirical—provide a sociolegal framework for understanding the successes and failures of legal work and, ultimately, how citizens experience state power in democratic and nondemocratic societies alike.     

Liberalism and Its Other: The Politics of Primitivism in Colonial and Postcolonial Indian Law

Liberalism is widely regarded as a modern intellectual tradition that defends the rights and freedoms of autonomous individuals. Yet, in both colonial and postcolonial contexts, liberal theorists and lawmakers have struggled to defend the rights and freedoms of political subjects whom they regard as “primitive,” “backward,” or “indigenous.” Liberalism thus recurrently encounters its primitive other, a face‐off that gives rise to a peculiar set of dilemmas and contradictions for political theory and law. In what ways can postcolonial law rid itself of its colonial baggage? How can the ideal of universal liberal citizenship overcome paternalistic notions of protection? How might “primitive” subjects become full and equal citizens in postcolonial societies? To explore these dilemmas and contradictions, I study the intellectual trajectory of “primitivism” in India from the construction of so‐called tribal areas in the 1870s to legal debates and official reports on tribal rights in contemporary India. Through a close reading of these legal provisions for tribal peoples and places, I explore the continuing tension between the constitutional ideal of liberal citizenship and the disturbing reality of tribal subjecthood produced by colonial and postcolonial Indian states.     

Political Liberalism, Marriage and the Family

Can and should political liberals recognize and otherwise support legal marriage as a matter of basic justice? In this article, we offer a general account of how political liberals should evaluate the issue of whether the legal recognition of marriage is a matter of basic justice. And, we develop and examine some public reason arguments that, given the fundamental interests of citizens, could justify various forms of legal marriage in some contexts. In particular, in certain conditions, the recognition of some form of legal marriage may be the best way to protect the fundamental interests of women as citizens in freely chosen associations. Or, it may be that, in certain conditions, to secure the social conditions necessary for gays, lesbians and bisexuals to be free and equal citizens, some form of legal marriage can or should be recognized.     

Enabling Exploitation: Law in the Gig Economy

This article describes the almost total failure of legal systems to criminalize, regulate or restrict the crimes of capitalism and its institutions in the “uber/gig” economy. It examines how the technologically-enabled theft of time, space and wages from employees has been normalized and even celebrated. These unregulated excesses have exacerbated political, cultural and economic inequality and threatened or destroyed quality of life for millions. To understand why and how these harmful practices have attracted so little regulatory or criminal attention, the article examines how neoliberal capitalism, in its constant search for new ways to outsource costs and maximize profits, intersects with the democratic state and its professed obligation to prevent capital from “going too far” at the expense of citizens of that state.     

Relational Legal Consciousness of U.S. Citizenship: Privilege,Responsibility, Guilt,and Love in Latino Mixed‐Status Families

Based on interviews with 100 members of mixed‐status families in Los Angeles, California, this article analyzes how U.S. citizen children practice and understand citizenship in the context of punitive laws targeting their loved ones. Participants' narratives of citizenship as privilege, responsibility, and guilt reveal that despite normative conceptions of citizenship as a universally equal status, citizenship intersects with key social markers to determine the contours and inequalities of substantive citizenship. Specifically, U.S. citizens in mixed‐status families make sense of their juridical category when they navigate unrealistic aspirations from relatives, maintain silence about undocumented family members' legal status, manage their fear of family separation through deportation, and take on financial and logistical responsibilities prematurely to help relatives. In each of these ways, family proves to be a key site for the social and relational production of citizenship.     

Trajectory of Reform: Catholicism,the State and the Civil Society in the Developments of LGBT Rights

This paper examines legislative variations in LGBT identities, addressing the question: why and how do two largely Catholic states—Italy and Spain—endow different legal treatment to LGBT identities? Italy and Spain present important similarities in their legal, social and historical backgrounds. The legal cultures of both of these states have legal frameworks decriminalizing homosexuality. Nevertheless, they have approached same-sex unions in quite different ways. Spain has introduced same-sex marriage. Italy has hindered, consequently legal recognition remains fiercely contested and unrealized. Overall, it is argued that it is in the area of same-sex unions that some of the most significant changes have taken place in family law over the past decade in a number of jurisdictions. The paper argues that legal reforms in family law must be understood in terms of relation between society and law and must draw upon the concept of “culture”. The two jurisdictions appear to support the theoretical perspective that reforms and lack of reforms in family law are inspired by a number of contexts such as religious values, ideas of political morality and State interests.