Citizenship as inherited property

Political Theory

Volumn 35, Issue 3, 2007, Pages 253-287

  Shachar, Ayelet ^a   Hirschl, Ran ^a  

^a UNIVERSITY OF TORONTO   (Canada)

Author keywords

Citizenship; Equality of opportunity; Global justice; Intergenerational transfer; Property

Indexed keywords

EID: 34248571555     PISSN: 00905917     EISSN: 15527476     Source Type: Journal    
DOI: 10.1177/0090591707299808     Document Type: Review

References (113)

1. Report of the Global Commission on International Migration (GCIM, 2005).
2. The complete list is too long to cite. Some of the most influential contributors to this body of literature include: Brian Barry, Rainer Baubock, Seyla Benhabib, Linda Bosniak, Allen Buchanan, Joseph Carens, David Held, Robert Goodin, Will Kymlicka, David Miller, Margaret Moore, Bhikhu Parekh, and Rogers Smith, among others.
3. See Ayelet Shachar, "Children of a Lesser State: Sustaining Global Inequality through Citizenship Laws," NOMOS: Child, Family, and State, ed. Stephen Macedo and Iris Marion Young (NYU Press, 2003), 345-397.
4. The data in this section is compiled from the World Development Report: Equity and Development 2006 (World Bank, 2006)
5. and Human Development Report 2005 (UNDP, 2005).
6. For a detailed analysis, see Thomas W. Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (Polity, 2002).
7. See, e.g., Jeffrey D. Sachs, The End of Poverty: Economic Possibilities for Our Time (Penguin Press, 2005), 20-31.
8. World Bank, World Development Report 2000/2001, Attacking Poverty: Opportunity, Empowerment, and Security, at http://www.worldbank.org/poverty/ wdrpoverty/report/overview.pdf.
9. This argument is powerfully advanced by J.S. Haslett, in his classic essay, "Is Inheritance Justified?" Philosophy & Public Affairs 15 (1986), 122-155.
10. John P. Dwyer and Peter S. Menell, Property Law and Policy: A Comparative Institutional Framework (Foundation Press, 1998), 1.
11. For a classic exposition of this insight, see Wesley Newcomb Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning," Yale Law Journal 23 (1913), 16-59.
12. For an illuminating discussion, see Crawford B. Macpherson, "The Meaning of Property," in Property: Mainstream and Critical Positions, ed. Crawford B. Macpherson (University of Toronto Press, 1978).
13. In theory, other levels of governance (those "above" or "below" the state level) can fulfill this enforcement function. However, in a world where states still enjoy significant power over respective territories, they offer a reliable system of law and governance for enforcing property rights.
14. Thomas C. Gray, "The Disintegration of Property," in NOMOS: Property, ed. J. Roland Pennock and John W. Chapman (NYU Press, 1980), 69-85, at 79.
15. Wesley Newcomb Hohfeld, "Fundamental Legal Conceptions as Applied in Judicial Reasoning," Yale Law Journal 26 (1917), 710-770.
16. For concise discussion on the form and substance of property, see Hanoch Dagan, "The Craft of Property," California Law Review 91 (2003), 1517-1571.
17. For a comprehensive analysis, see Jeremy Waldron, The Right to Private Property (Clarendon Press, 1988).
18. Calabresi and Melamed distinguish between property, liability, and inalienablity rules as offering different degrees of alienbility and transfer of such entitlements. See Guido Calabresi and A. Douglas Melamed, "Property Rules, Liability Rules, and Inalienability: One View of the Cathedral," Harvard Law Review 85 (1972), 1089-1128.
19. On property's connection to freedom and autonomy, see the classic elaborations by Kant's Metaphysics of Morals and Hegel's Philosophy of Right;
20. For contemporary accounts, see Charles Reich, "The New Property," Yale Law Journal 73 (1964), 733-787;
21. Margaret Jane Radin, "Property and Personhood," Stanford Law Review 34 (1982), 957-1015;
22. Jeremy Waldron, "Property, Justification, and Need," Canadian Journal of Law and Jurisprudence 6 (1993), 185-215.
23. Jeremy Waldron, "Property Law" in A Companion to Philosophy of Law and Legal Theory, ed. Dennis Patterson (Blackwell, 1996), 5.
24. Jeremy Waldron, "What is Private Property?" Oxford Journal of Legal Studies 5 (1985), 318.
25. Our usage of the term "scarcity" here refers to the unmet demand placed upon this precious good by those who currently do not enjoy access to it. This scarcity is at least in part constructed by the very citizenship laws that we criticize here.
26. Rogers Brubaker, Citizenship and Nationhood in France and Germany (Harvard University Press, 1992), 21.
27. For an optimistic vision of this transformation of citizenship, see Linda Bosniak "Citizenship Denationalized," Indiana Journal of Global Legal Studies 7 (2000), 447-509.
28. Richard Falk, "An Emergent Matrix of Citizenship: Complex, Uneven, and Fluid," in Global Citizenship: A Critical Introduction, ed. Nigel Dower and John Williams (Routledge, 2002), 21.
29. Richard Falk, Global Citizenship: A Critical Introduction, Ibid, 20.
30. On the scholarly debate over whether the state has "lost" or "retained" control over its borders in the age of globalization, see e.g., Saskia Sassen, Losing Control? (Columbia University Press, 1996);
31. Virginie Guiradon and Gallya Lahav, "A Reappraisal of the State Sovereignty Debate: The Case of Migration Control," Comparative Political Studies 33 (2000), 163-195.
32. Reich, "The New Property." Reich referred to governmental largesse, such as welfare entitlements, jobs, and subsidies.
33. Schneiderman v. United States, 320 U.S. 118, 122 (1943).
34. On the distinction between "private" and "communal" property (the latter is often referred to by different names, with somewhat different interpretations, such as "group," "collective," or even "limited-access commons"), see e.g., J. W. Harris, "Private and Non-Private Property: What is the Difference?" The Law Quarterly 111 (1995), 421;
35. Michael A. Heller, "The Boundaries of Private Property," Yale Law Journal 108 (1999), 1163-1223.
36. Harris, "Private and Non-Private Property."
37. The distinction that we develop here between the narrow and broad conceptions draws upon C. B. Macpherson's classic writings on property, in particular, his essay on "Human Rights as Property Rights," Dissent 24 (1977), 72-77.
38. th ed., Aspen, 2003).
39. For a critical assessment of this vision of social life, see Margaret Jane Radin, "Market-Inalienability," Harvard Law Review 100 (1987), 1849-1937.
40. The term "possessive individualism" was coined by Crawford B. Macpherson in The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford University Press, 1962).
41. Gregory S. Alexander, Commodity and Propriety: Competing Visions of Property in American Legal Thought, 1776-1970 (University of Chicago Press, 1997), 2.
42. This conception is famously traced back to Blackstone's Commentaries, in which Blackstone stated that property empowers the right-holder to "total exclusion ... of any other individual in the universe." See William Blackstone, Commentaries on the Laws of England Vol. 2. (1979, reproduction 1766 edition), 2.
43. Hanoch Dagan and Michael Heller, "Conflicts in Property," Theoretical Inquires in Law 6 (2005), 38.
44. A classic articulation of this view is offered by Milton Friedman in Capitalism and Freedom (1962), 7-21.
45. Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy (University of Chicago Press, 1990), 207.
46. For a comprehensive discussion of these themes, see Carol M. Rose, Property and Persuasion: Essays in the History, Theory, and Rhetoric of Ownership (Westview Press, 1994).
47. Dagan and Heller, "The Liberal Commons."
48. Dwyer and Menell, Property Law and Policy, 807.
49. Macpherson, "Human Rights as Property Rights."
50. The use of "property" up until roughly the seventeenth century correlated with the broad conception, as explained by Macpherson in "Property."
51. Klapprott v. United States, 335 U.S. 601, 616-617 (1949).
52. Schneiderman v. United States, 320 U.S. 118 (1943).
53. Alexander, Commodity and Propriety.
54. Macpherson, "Human Rights as Property Rights," 73.
55. On this interpretation of property relations, see Dagan and Heller, "Conflicts in Property."
56. Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (Harvard University Press, 1970).
57. This conception of property as trusteeship is best expressed in the civic-republican tradition. See e.g.. Cass Sunstein. "Beyond the Republican Revival," Yale Law Journal 97 (1988), 1539-1590.
58. Treating citizenship as a "precious good" is central to Michael Walzer's analysis of membership. Spheres of Justice: A Defense of Pluralism and Equality (Basic Books, 1983).
59. We make this statement as a descriptive observation of the reality we find in practice, not as normative judgment about whether or not this is a desirable state of affairs.
60. Jacqueline Stevens, Reproducing the State (Princeton University Press, 1999).
61. Brubaker, Citizenship and Nationhood.
62. Ayelet Shachar, "The Shifting Border of Immigration Regulation," Stanford Journal of Civil Rights-Civil Liberties 3 (2007).
63. David Held, "Between State and Civil Society: Citizenship," in Citizenship, ed. Geoff Andrews (Lawrence & Wishart, 1991), 19-25.
64. The security that attaches to full membership is thought to nourish our sense of identity and belonging, with important "returns" in terms of our ability to fully exercise our autonomy and freedom.
65. Clearly, acquisition of citizenship status per se is no guarantee against the persistence of inequalities between members of the same polity. But it does anchor certain basic interests as non-revocable once a person is counted in the innermost circle of members.
66. Carol Rose, "Property as Propriety," 63.
67. A related argument is developed by Christopher L. Eisgruber, "Birthright Citizenship and the Constitution," New York University Law Review 72 (1997) 54-96.
68. J. W. Harris, Property and Justice.
69. The idea of fair value of equal liberties is drawn from John Rawls, A Theory of Justice (Harvard University Press, 1971), at 227.
70. The latter interpretation draws on Sen's capabilities approach, see e.g., Amartya Sen, Inequality Reexamined (Russell Sage Foundation, 1992);
71. John Roemer, Equality of Opportunity (Harvard University Press, 1998);
72. Martha Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge University Press, 2000). Nussbaum makes explicit the claim that these capabilities ought to be fulfilled by governments.
73. See e.g., Ross Zucker, Democratic Distributive Justice (Cambridge University Press, 2001), chaps. 9-11.
74. Liam Murphey and Thomas Nagel, The Myth of Ownership: Taxes and Justice (Oxford University Press, 2002), chap. 3.
75. Importantly, we are not relying here on the historical precedent of treating ownership of real property as a precondition for full membership in the polity. As is well recorded, such reliance has worked to drastically restrict access to citizenship, excluding the vast majority of the population from full inclusion as equals. Our focus is different: we are exploring the conceptual and functional analogies between the regimes of protected property and bounded citizenship.
76. On the deeply gendered aspects of these intergenerational transfers, see e.g., Nancy E. Wright, Women, Property, and the Letters of the Law in Early Modern England (University of Toronto Press, 2004);
77. Mary Louise Fellows, "Wills and Trusts: 'The Kingdom of the Fathers,'" Law and Equality 10 (1991), 137-162.
78. John F. Hart, "A Less Proportion of Idle Proprietors: Madison, Property Rights, and the Abolition of Fee Tail," Washington & Lee Law Review 58 (2001) 167-194, 171-172.
79. John V. Orth, "After the Revolution: 'Reform' of the Law of Inheritance," Law and History Review 10 (1992), 33-44.
80. This strict pattern of transfer often put women at the precarious situation of reliance on marriage as the core means for ensuring financial security and social respectability (in a highly stratified society) for themselves and their children. In this respect, the entail was part of a larger system of laws that regulated monogamy, patriarchy, and inheritance. Of the vast body of feminist critique of this hierarchical social order, see e.g., Eileen Spring, Law, Land and Family: Aristocratic Inheritance in England, 1300 to 1800 (University of North Carolina Press, 1993).
81. Alexander, Commodity and Propriety, 38.
82. Orth, "After the Revolution," 38.
83. Y.B. 12 Edw. 4, Mich 25 (1472).
84. See Richard B. Morris, "Primogeniture and Entailed Estates in America," Columbia Law Review 27 (1927), 24-51.
85. We draw this argument from the elegant analysis offered by Orth, "After the Revolution."
86. Orth, "After the Revolution," 40.
87. For an illuminating and meticulous study of Madison's position on entail, see Hart, "A Less Proportion of Idle Proprietors".
88. Alexander, Commodity and Propriety, 39.
89. Hart, "A Less Proportion of Idle Proprietors," 168.
90. Hart, "A Less Proportion of Idle Proprietors," Ibid, 189.
91. Blackstone, Commentaries.
92. Madison, "Fashion."
93. Act of Oct. 1776, ch. XXVI, reprinted in 9 Laws of Virginia 226, ed. William Waller Hening (J & G Cochran, 1823).
94. Orth, "After the Revolution," 42-43.
95. James H. Kettner, The Development of American Citizenship, 1608-1870 (Chapel Hill: University of North Carolina Press, 1978).
96. Obviously, at this time the definition of eligibility for inclusion in the body-politic was itself deeply laden with race and gender-based exclusions. Full membership was reserved exclusively for "free white persons." See Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (Yale University Press, 1997).
97. John Locke, Two Treatises of Government, ed. Peter Lasle (Cambridge University Press, 1988), 347, §118.
98. Thomas Jefferson, "Summary View of the Rights of British America," in Jefferson: Writings, ed. Merril D. Peterson (Literary Classics of the United States, 1774, 1994), 4.
99. This perpetual structure of hereditary transfer also appears to violate the common-law rule against "perpetuities," which has been in effect for centuries, dating back to at least the 1682 decision in the Duke of Norfolk's Case.
100. This notion is perhaps best captured in Henry Maine's and later Emile Durkheim's "from status to contract" typology.
101. This is not the place to fully expand the critique of world citizenship. For an initial discussion, see Ayelet Shachar, "Birthright Citizenship as Inherited Property: A Critical Inquiry," Identities, Affiliations, and Allegiances, ed. Seyla Benhabib, Ian Shapiro and Danilo Petranovich (Cambridge University Press, 2007), 257-281.
102. One way to do so is by creating a closer nexus between right and duty. For further elaboration, see Citizenship as Inherited Property: The New World of Bounded Communities (Harvard University Press, forthcoming), chap. 4.
103. Even an ultra-libertarian like Robert Nozick accepts this point; see his critical discussion of intergenerational transfers in The Examined Life: Philosophical Mediations (Simon and Schuster, 1989), 30-31.
104. R. H. Tawney, Equality (Unwin Books, 1964), 120.
105. Ronald Dworkin, "What is Equality? Part 1: Equality of Welfare," and "What is Equality? Part 2: Equality of Resources," Philosophy and Public Affairs 10 (1981): 185-246; 283-345. While we must be many things that we don't choose, when it comes to entitlements, inequality in most spheres has been challenged.
106. Dworkin's work has generated a vibrant discussion on "luck egalitarianism," see e.g., Richard J. Arneson, "Equality and Equality of Opportunity for Welfare," Philosophical Studies 56 (1989), 77-93;
107. Jerry Cohen, "On the Currency of Egalitarian Justice," Ethics 99 (1989), 906-946.
108. For a critical account, see Elizabeth S. Anderson, "What is the Point of Equality," Ethics 109 (1999), 287-337.
109. Note that such responsibility to compensate for people's brute luck accrues only to "that part of others' good fortune that is undeserved." See Anderson, "What is the Point of Equality," at 290. Similarly, windfall beneficiaries will be asked to contribute that part of their good fortunate that is "undeserved" to compensate those who remain outside, though it is obviously difficult to quantify these components.
110. See Guido Erreygers, "Inheritance in the History of Economic Thought," in Is Inheritance Legitimate? Ethical and. Economic Aspects of Wealth Transfers, ed. Guido Erreygers and Toon Vandeveldge (Springer-Verlag, 1997), 40.
111. Isbister, Capitalism and Justice, 102. This obligation may be discharged by a stream of periodic payment with the same expected overall lifetime value; we thank Barbara Fried for calling our attention to this point.
112. Our proposal differs from "natural resource" global taxation proposals such as Steiner's or Pogge's - that must begin with the assumption that the whole world once belonged to all as the basis for reallocation (Steiner's argument) or apply globally the Rawlsian difference principle (Pogge's argument). The birthright privilege levy, on the other hand, targets the artificiality and inevitability legally constructed process of determining who is a citizen by birth - in the processes aiming to "de-naturalize" this very construction.
113. Brian Barry, Democracy, Power, and Justice: Essays in Political Theory (Oxford University Press, 1989), 454.