This article focuses on contemporary theories of territorial rights in political and legal philosophy and explores their implications for the case of Crimea, focusing on three main accounts of territorial rights: Liberal nationalist, Lockean, and Kantian. The article advances the legal-political account of the "people" and its territorial rights as a promising approach to theorizing the corporate agents that have potentially valid territorial rights and claims. While normative theory does not yield a single unequivocal judgment that identifies one claimant as the solely justified territorial right-holder in Crimea, the application of general principles of territorial rights theory can help identify the pertinent considerations for the case, which clarify the normative implications of each potential resolution. While no party has an absolutely just territorial claim to Crimea, this article offers a qualified defense of the existence of a distinct "Crimean people," defined by the distinct political history of Crimea and its long-standing legacy of autonomous legal-political institutions, which may constitute a shared political project for the culturally diverse population.
Is territorial jurisdiction over natural resources justified? This paper argues that a freedom-based account of self-determination coupled with ‘functionalist’ justifications of territorial right support territorial jurisdiction over natural resources. This justification simultaneously gives rise to limits on the permissible exercise of the right: the principles of reciprocity and generality, and of equal freedom. This ‘reciprocal’ view on territorial jurisdiction over natural resources, defended here, differs from two alternatives: the traditional sovereignty view on the one hand and the transnational jurisdiction view—which favours the transfer of sovereignty over natural resources from states to transnational institutions—on the other hand.
Any complete theory of territorial rights needs to address the particularity problem: which group, individual, or institution should hold territorial rights in which particular territory? According to the legitimate state theory, legitimate states and they alone have territorial rights over their territories; illegitimate states and non-state entities do not, as a rule, have them. In this article, Ayelet Banai distinguishes between two interpretations of the legitimate state theory that differ from one another in their conceptions of statehood and of legitimacy. The first interpretation – call it the restrictive view – adopts the Westphalian sovereign state model and a liberal criterion of legitimacy; the second interpretation – call it the pluralist view – adopts a diversified notion of statehood and a contextual or external criterion of legitimacy (as described below). I argue that the restrictive interpretation is susceptible to three objections, which, taken together, render it problematic. The pluralist interpretation is not liable to the same and offers a promising approach to the particularity problem.
Proponents of global egalitarian justice often argue that their positions are compatible with the principle of self-determination. At the same time, prominent arguments in favor of global egalitarianism object to one central component of the principle: namely, that the borders of states (or other political units) are normatively significant for the allocation of rights and duties; that duties of justice and democratic rights should stop or change at borders. In this article, I propose an argument in defense of the normative significance of territorial boundaries that draws on a political interpretation of the principle of self-determination. The political interpretation is distinct from the two major approaches to self-determination: the national and the democratic. It makes a twofold contribution to the debates about global justice and democracy; while it (a) challenges the position that political memberships and political borders are morally arbitrary; it (b) helps define the realm of permissible autonomy for self-governing political units, which does not ignore duties to nonmembers and outsiders.
The article explores the concept of culture as a criterion for political boundaries, and finds both prominent positions on the cultural criterion in contemporary liberal democratic theory—liberal nationalism and its cosmopolitan opposition—inadequate. To this end, the article compares two opposing visions of culture-based regionalism in Europe, developed by Green parties and by parties of the new far-right, respectively. The comparison indicates that the exclusionary meanings of culture as a criterion for political boundaries, typical for the new far-right, dominate the notion of culture in this context in general—despite the ecologists' efforts to appropriate the cultural criterion and reinvent it. The ensuing difficulty for the theoretical positions is: (1) an inclusive and pluralist notion of culture as a criterion for political boundaries is currently unavailable, and (2) particularities are conceptually indispensible in a theory of political borders—replacing cultural particularism by no particularism is implausible.
The article examines two dimensions of political representation in Iraqi Kurdistan: representation as presence and substantive representation. It is argued that the high proportionality of the electoral system enables representation as presence, of women, minorities and diverse geographical, linguistic and socio-economic interests and groups. However, the electoral system challenges representation in both dimensions, insofar as it hampers the development of effective opposition. The opposition is vital to confront clientelism and corruption that undermine democracy in the region.
Why do we really want Europe? Can we demonstrate to European citizens the opportunities offered by social politics and a strong social democracy in Europe? This is the aim of the new Friedrich-Ebert-Stiftung project »Politics for Europe«. It shows that European integration can be done in a democratic, economic and socially balanced way and with a reliable foreign policy.
This issue deals with the crisis afflicting Social Europe that has been evident for several years continues unabated. Inequality within countries increased in most member states in 2014, especially in Germany. Cohesion across the EU has made no progress, even if growth in the poorest countries has been somewhat above the EU average. The better off social strata benefit most from rather weak growth overall. Social development remains dire in the Mediterranean countries, where the poorest strata are particularly hard hit by austerity policy.
Inequality in Europe has many dimensions and a long history. People or countries differ in many and diverse ways (power, income, wealth, life expectancy, among many others) and show accordingly diverse forms of inequality. Politics often distinguish between equal opportunities, equal performance and equal results. This essay focuses mainly on income inequality. Inequality has three main dimensions in Europe: within Member States, between Member States and in the European Union (EU) as a whole. But even if we focus strictly on income inequality, caution is required, since income and prosperity, their development and distribution, point to many problems and pitfalls that also appear in Europe’s development, especially from an international point of view. Firstly, a differentiation should be made between the dimensions taken into consideration (market or disposable income based on purchasing power or on the exchange rate) and the units compared (countries, regions, households, productive resources).
Dauderstädt, M. , Keltek, C.: Crisis, Austerity, and Cohesion: Europe's Stagnating Inequality. Impact of Financial and Economic Crisis on Health, Quality of Life, and Social Well-Being. International Journal of Health Services, Volume 45, Number 1, 2015, 25-31.
Europe’s high inequality, systematically underestimated by the European Union, has been falling for many years thanks to catch-up growth in the poorer countries and despite often-increasing inequality within member states. Crisis and austerity have curbed this development, however. After inequality rose again during the Great Recession of 2009 and the subsequent brief recovery, things are now going sideways in the context of generally weak growth.
This paper compares and evaluates eleven proposals, which suggest policies and institutional arrangements to close the European investment gap. The differences between the proposals analyzed here are notable but the majority of them share a large common ground regarding size, financing, institutional set-up and areas to invest in. Most proposals want to mobilize between 100 and 300 bn€ p.a. of private capital by leveraging funds from either the EU or government budgets or the EIB or new public investment funds. They intend to channel this capital into projects with long-term benefits for Europe, primarily infrastructure and energy.
The major drawbacks are:
- The size of the investment falls short of the gap defined as the difference between pre- and post-crisis levels of investment.
- It is far from sure that private investors will take the carrot and leverage the limited public funds.
- Private investors will expect guaranteed returns, which are unlikely to arise from infrastructure projects or have to burden consumers through higher user fees or costs.
- Even if the desired investment takes place its effect on growth might be delayed and/or negligible.
- There is a lack of regional allocation priorities that target member states with special problems.
- The strategy needs to focus on rebalancing the external accounts by promoting exports and import substitution in deficit countries.
Nonetheless the programs will promote growth and employment in so far as they create additional demand, primarily for investment goods; but there should be second-round and multiplier effects on consumption and higher tax revenues.
In 2013, Europe’s burgeoning inequality, ever underestimated by the EU, remained at a high level. The catch-up process of the poorer countries that had been observed until 2009 was scarcely making headway any longer due to austerity policy and weak growth. Even though domestic inequality had worsened in only a few countries – including Germany – since 2012, Social Europe’s pledge of cohesion remained largely unfulfilled. Only growth based primarily on rising incomes among poorer population groups can provide sustainable prosperity for all.
Cohesive growth in Europe: Income convergence and divergence between countries, regions, and households. Enhancing cross-border cooperation between the European Union and Ukraine with regard to regional development, investments and social capital development in the cross-border region, Slovak Foreign Policy Association and Friedrich-Ebert-Stiftung, Bratislava 2014, 31-37.
The European Economic Community (EEC) founded in 1957 by six countries (Belgium, France, Germany, Italy, Luxemburg and the Netherlands) was a relatively homogenous area with the exception of Mezzogiorno. The founding treaty of Rome mentioned in its opening goals it was „Anxious to strengthen the unity of their economies and to ensure their harmonious development by reducing the differences existing between the various regions and the backwardness of the less favoured regions“ but offered no concrete policies or institutions. Regional policy as a task for the Community did not emerge until the first enlargement in 1972 when the (then) poor Ireland joined the EEC together with Denmark and the UK. It became an important policy area with the Southern enlargements of 1981 (Greece) and 1986 (Portugal and Spain). The task became even more relevant with the two Eastern enlargements of 2004 and 2007 (and Croatia’s entry in 2013).
This book explores a vital but neglected chapter in the histories of nationalism, racism and science. It is the first comprehensive study of the transnational scientific community that in the nineteenth and early twentieth centuries attempted to classify Europe's biological races. Anthropological race classifiers produced parallel geographies, histories and hierarchies of European peoples that were crucial to the creation of national identities and to the overtly political race discourses of eugenics and popular racist ideologues. They lent nationalism the invaluable prestige of natural science, and traced the histories, conflicts and relationships of ‘national races’ back into prehistory. Racial national character stereotypes meanwhile supported competing political ideologies. The book examines the interplay between class, gender and national identity narratives and the tensions and interactions between the scientific and political agendas of classifiers. Within the elaborate transnational networks of scientific communities, for example, they had to reconcile competing national narratives.
Against the governing tendency of analyzing the production of space in Israel in purely political terms, the article demonstrates that the cultural dimension is critical for understanding the Israeli paradigm of territory. Extensive and intensive analysis of the key Israeli expression for concreteness and the term designating the territories occupied by Israel since 1967 (which both stem from the same root), thereby bringing together cultural, linguistic, historical, and political perspectives across several registers, reveals the Israeli paradigm of territory as a core part of a thick Israeli cultural ideology. The article concludes by pointing out how and why, under the weight of the present occupation, this paradigm is in the process of breaking up.
From Assimilationist Antiracism to Zionist Anti-antisemitism: Georg Simmel, Franz Boas, and Arthur Ruppin. Antisemitism and the Constitution of Sociology, Ed. Marcel Stoetzler, Nebraska University Press, Lincoln 2014, pp. 160-182.
This essay delineates three responses to antisemitism by social scientists of Jewish descent: Georg Simmel (1858– 1918), one of the founders of academic sociology; Franz Boas (1858– 1942), the founder of American cultural anthropology; and Arthur Ruppin (1876– 1943), the founder of Jewish sociology and demography. Simmel and Boas were both staunch supporters of Jewish assimilation; Ruppin, a prominent Zionist leader, was an opponent of assimilation. All three thinkers recognized the reality of modern antisemitism and viewed it as a set of cognitive and social practices that were irreducible to Christian animosity toward Jews. Their responses to antisemitism diverge, though, with regard to the epistemic and ontological status of antisemitism and regarding the question of what should be done about it. My principal proposition in this chapter is that the reactions of these three thinkers were shaped by a generational difference, namely whether they had grown up in a historical context when the ideal of assimilation was still intact, as did Simmel and Boas, or in a somewhat later context when this ideal had already been destroyed by the renewed antisemitism of the 1870s, as was the case with Ruppin.
Photographs played an important role in the development of the idea of the Jews as a mixed-race people. This article tracks the trajectory of this idea from the 1880s, when it was first introduced by theliberal Austrian anthropologist and archaeologist Felix von Luschan, through the works of American Jewish physician Maurice Fishberg and German Jewish linguist Sigmund Feist, to its appropriation and inversion by the prominent Nazi theoretician of race Hans F. K. Günther in the 1920s. By tracing the circulation of one photograph, analyzing the roles of photographs in argumentation, comparing their status with other types of empirical sources, and arguing that the key to their analysis is performative, pertaining to the relationships photographs form, I argue for the essential contingency of ideas that in retrospect have been identified as fundamental to antisemitic arguments.
In the library catalogue in The Berlin Kaiser Wilhelm Institute for Anthropology, Human Genetics, and Eugenics, founded in 1927, we find six categories of humans. Five of the six categories are geographical, while Judentum (meaning both Jewry and Judaism) constitutes the sixth. Such categorization reflects the belief of many German scientists and scholars (non-Jewish as well as Jewish) in the first half of the twentieth century that Jews were a racially defined population and Judaism fundamentally a racial phenomenon. The question with which this paper is concerned is: did German scientists and scholars continue to hold this belief after the Second World War?
After the Fact: 'Jews' in German physical Anthropology, 1945-1992, Race, Color, Identity: Rethinking Discourses about “Jews” in the Twenty-First Century, Efraim Sicher (ed.), Berghahn, Oxford 2013, pp. 217-233.
Advances in genetics are renewing controversies over inherited characteristics, and the discourse around science and technological innovations has taken on racial overtones, such as attributing inherited physiological traits to certain ethnic groups or using DNA testing to determine biological links with ethnic ancestry. This book contributes to the discussion by opening up previously locked concepts of the relation between the terms color, race, and “Jews”, and by engaging with globalism, multiculturalism, hybridity, and diaspora. The contributors—leading scholars in anthropology, sociology, history, literature, and cultural studies—discuss how it is not merely a question of whether Jews are acknowledged to be interracial, but how to address academic and social discourses that continue to place Jews and others in a race/color category. This chapter focuses on discourse about “Jews” in writings by German physical anthropologists between the collapse of Nazi Germany in 1945 and the beginning of the 1990s. Physical anthropology is arguably the discipline most strongly associated with the idea of race. A basic tension can be discerned that pertains to two aspects of the wider history of German physical anthropology.
Recent scholarship on the history of German anthropology has tended to describe its trajectory between 1900 and the Nazi period as characterized by a paradigmatic shift from the liberal to the anti-humanistic. This article reconstructs key moments in the history of anthropometric photography between 1900 and 1925, paying particular attention to the role of the influential liberal anthropologist Rudolf Martin (1864–1925) in the standardization of anthropological method and technique. It is shown that Rudolf Martin’s primary significance was social and institutional. The article reconstructs key stages in Martin’s writing on and uses of photography and analyses the peculiar form of scientific debate surrounding the development of anthropometric photography, which centred on local and practical questions. Against the political backdrop of German colonialism in Africa and studies of prisoners of war during the First World War, two key tensions in this history surface: between anthropological method and its politicization, and between the international scientific ethos and nationalist impulses. By adopting a practical–epistemic perspective, the article also destabilizes the conventional differentiation between the German liberal and anti-humanist anthropological traditions. Finally, the article suggests that there is a certain historical irony in the fact that the liberal Martin was central in the process that endowed physical anthropology with prestige precisely in the period when major parts of German society increasingly came to view ‘race’ as offering powerful, scientific answers to social and political questions.
Elements of Controversy: responses to antisemitism in nascent German social science. Perspectives on theory of controversies and the ethics of communication - Explorations of Marcelo Dascal's contributions to philosophy, Riesenfeld, Dana, Scarafile, Giovanni (eds.), Springer, Heidelberg 2013, pp. 131-140.
Assembling an unprecedented range of considered responses to the noted contributions to philosophy made by Marcelo Dascal, this collection comprises the work of his many friends, colleagues and former students. Beginning with a series of articles on Dascal’s influential insights on philosophical controversy, this volume continues with explorations of Dascal’s celebrated scholarship on Liebnitz, before moving on to papers dealing with his philosophy of language, including interpretations by Dresner and Herring on the phenomenon of emoticons. Taken as a whole, they provide a compelling commentary on Dascal’s prolific and voluminous publications and include fresh perspectives on the theory of argumentation and the ethics of communication.
The material collected here extends to political philosophy, such as Morris-Reich's paper exploring the ways in which German social scientists confront issues of antisemitism, the psychology of genius, and the origins of norms in society and culture. Much of the analysis is directly connected to, or influenced by, the philosophical themes, ideas and concepts developed throughout the years by Marcelo Dascal, while others have a looser connection to his work. All of them, however, attest to the remarkable and multifaceted philosophical persona of Marcelo Dascal, who is the guiding light of the rich conceptual dialogue running through this book.
From the perspective of Central European developments in scientific photography, this article studies the photographs taken by Solomon Yudovin as part of S. An-sky’s ethnographic expedition to the Pale of Settlement between 1912 and 1914. The first part of the article argues that the scientific goals of the expedition demanded the introduction of photography less out of an inherent interest in the medium than out of the desire to employ advanced scientific techniques. The second part identifies various strains of scientific photography in Yudovin’s photographic practice. It shows that his photographs encompass both of what later came to be contrasted as racial photography and social documentation. Employing a comparative approach, and touching particularly on questions of Jewish visibility at the time and after the Holocaust, the third part of the article points to the specificity of photography as an indexical medium in this history.
This chapter examines two crucial and interlocked processes in early modern European history: (1) the growth and standardization of vernacular languages as vehicles of printed communication and learning, partially parallel to the rise and fall of scholarly Latin; and (2) the expansion of literacy in European cultures. It dwells on temporal and geographic continuities and differentials in both processes, on their interrelations, and on the relevant impacts of the consolidation of governmental power and new intellectual movements. Regional, social, economic, and cultural variations are discussed, taking on board varieties of geography, wealth, class, profession, creed, and gender, and suggesting that modernization of languages and literacies was not a simple process of ‘progress’. The chapter also considers recent debates and research, pointing out that a fine-tuned approach to the historical context is crucial for any theory of language and literacy.
"Political imagining of the future is often a thinly disguised exercise in reflection upon the present. What else can it be? A decade from now we may be living in a bee-less, honey-less, nutrient-impoverished world. Or in a world helplessly watching its adolescents become monkish addicts to online gaming. Or in a world where the rich will buy technology enabling them and their genetically upgraded children to outlive the poor of their own country by four whole decades. Wars could be fought about on-screen icons or stolen intellectual property." In this article Fania Oz-Salzberger offers a couple of future Israels, potentially stemming within ten years from today’s complex topography. But these predictions are really about 2015, and the way we stand now.
The journal Historia is intended as a platform for research in the field of general history written in Hebrew. The lack of an appropriate platform led to the distancing of this field from the general public with an interest in the discipline of history. Each issue deals with various aspects of a specific subject. The majority of the contributors to this journal are Israeli scholars and the Israeli experience is implicitly and explicitly imprinted in their work. Historia, a biannual publication, was first published in 1998. Fifteen volumes have been published to date.
Few Enlightenment cultures during the long eighteenth century were more intrigued by modernity, or more alert and ambivalent in their understanding of Europe, than the Scottish Enlightenment. The Scottish lexicon of modernity is strong and self-aware, and its components are conjoined with Europe in various constellations in the works of David Hume, Adam Smith, Adam Ferguson, Henry Home Lord Kames, and William Robertson, among others. This essay discusses some of the better known, as well as lesser known, Scottish conjunctions of Europe and modernity. It attempts to pinpoint a unique Scottish perspective on the connection between European history, the progress of philosophy, and the rise of modernity.
Democratic First, Jewish Second: A Rationale. The Israeli Nation-State: Political, Constitutional, and Cultural Challenges, Ed. Oz-Salzberger, F./ Stern, Y. Z., Academic Studies Press, Brighton MA 2014, pp. 66-78.
This volume of original essays, by some of Israel’s most remarkable public and academic voices, offers a series of state‐of‐the‐art, accessible analyses of Israel’s ever‐evolving theater of statecraft,public debates, and legal and cultural tension fields, deep divisions and—more surprisingly, perhaps—its internal affinities and com‐ mon denominators.
“The essays in this volume are always illuminating, often passionate, and at times provocative. They enrich our understanding of Israel’s political and legal system, and they are particularly useful for providing differing perspectives on the ongoing debate over whether Israel can be both a Jewish and democratic state. Clearly and accessibly written, this volume will be a valuable resource for undergraduates and general readers as well as specialists.” — Derek Penslar, Stanley Lewis Professor of Israel Studies, University of Oxford
Israelis and Germany after the Second World War: Is Reconciliation Possible? Can Universal Lessons Be Drawn? Confronting Memories of World War II: European and Asian legacies, Ed. Chirot, D,/ Shin, G-W,/ Sneider, D., University of Washington Press, Washington 2014, pp.186-208.
The legacy of the Second World War has been, like the war itself, an international phenomenon. In both Europe and Asia, common questions of criminality, guilt, and collaboration have intersected with history and politics on the local level to shape the way that wartime experience has been memorialized, reinterpreted, and used. By directly comparing European and Asian legacies, Confronting Memories of World War II, provides unique insight into the way that World War II continues to influence contemporary attitudes and politics on a global scale. The collection brings together experts from a variety of disciplines and perspectives to explore the often overlooked commonalities between European and Asian handling of memories and reflections about guilt. These commonalities suggest new understandings of the war's legacy and the continuing impact of historical trauma.
The Scientific Status of New Security Studies. A Critical Search of Epistemic Identity of Homeland and Civil Security Research. Cross-disciplinary Perspectives on Homeland and Civil Security. A Research-Based Introduction, Ed. Siedschlag, A., Peter Lang, New York 2015, pp. 231-247.
The Rule of Law Under Extreme Conditions and International Law: A Law and Economics Perspective. Conference Paper, The rule of law under extreme conditions and international law, Travemunde, Germany March 2014.
The ‘rule of law’ has attracted a lot of scholarly writings as well as political and public rhetoric in recent years. On the one hand, scholars found that adherence to the rule of law can be regarded as the most significant explanatory factor for various measures of a country’s success, both in social - quality of life - realm and in the pure economic realm. On the other hand, various governments’ responses to terror threats since 9/11, including responses of established liberal democracies, brought about a surge in positive and normative writings, as well as public debates, about the rule of law under extreme conditions, or the deviations from the rule of law, even by the most liberal democracies. However, the international law aspects regarding the rule of law under extreme conditions is a field that had received almost no attention so far and in this respect the conference held in Travemunde on March 2014 is a pioneering one and so does the current volume, based on the papers presented there. This paper summarizes my introductory notes at the conference.
The second volume of the Polish Yearbook of Law & Economics encompassing a collection of articles presented at 2nd Polish Law & Economics Conference. Eli Salzberger's paper entitled "Law and Economics - Limits of Analysis: The Case of Intellectual Property", is based on his keynote lecture delivered at the conference. This contribution has two principal goals. In the first part it places Law and Economics in the framework of the philosophy of science, moral and political philosophy, as well as the philosophy of law, describing the origins of this scientific movement, its evolution and possible future development paths. This survey of the roots and history of Law and Economics later provides background for Eli Salzberger's normative analysis of intellectual property rights presented in the second part of his contribution. The author formulates critical remarks with regard to the shift from the incentives paradigm to the proprietary paradigm in the economic analysis of intellectual property. He concludes with a practical advice for Law and Economics students and scholars in this field regarding the role of the positive and normative premises on the bases of which they conduct their studies and formulate general conclusions.
The value of intellectual property today exceeds the value of physical property and Intellectual property rights are on a continuous path of expansion (with the commodification of information). These developments beg a serious discussion, revisiting the philosophical justifications of IPR, especially in light of the technological revolution of the Internet and related technologies. One of the more powerful contemporary discourses on such justifications is the economic analysis of law approach. The paper provides a critical analysis of what used to be the main Law and Economics paradigm for the normative analysis of intellectual property rights - the incentives / public goods model. It further discusses an alternative economic model - the Tragedy of the Commons, which in recent years has been twisted to a new Propriety paradigm, pre-assuming intellectual creations to be a natural object of property, and focusing on the management of intellectual property rather than on its initial justifications. The papers ends with some tentative thoughts on the more general concept of the prime property right of ownership.
Separation of Powers and the Roles of the Judiciary: A Theoretical Analysis Through an Israeli Perspective. Separation of Powers in Theory and Practice, An International Perspective, Ed. Groot-van Leeuwen, L. E.de/ Rombouts W., Wolf Legal Publishers, Nijmegen the Netherlands 2010, pp. 11-47.
The separation of powers is a foundation of democratic societies. But what does this doctrine mean in practice? How does the judiciary connect to the power of politics? This volume reports on the often tense and dynamic relationship between judges and governments. It covers political debate but also the many strategies used to attack and defend judicial independence. These strategies range from subtle elite negotiations to all-out media wars. The volume focuses on a number of countries with quite different legal histories, such as Italy, Bulgaria, Germany, the US and Israel. This volume has its origins in the Working Group for Comparative Study of Legal Professions of the International Sociological Association/Research Committee on Sociology of Law (ISA/RCSL). During meetings of this Group over the years, the idea emerged of working on the theme of the separation of powers. The present volume includes the contributions of members of the Working Group as well as other authors. A special workshop was held on the changing relationship between the judiciary and the other state powers at the International Institute for the Sociology of Law (IISL) in Oñati, Spain, in May 2007.
The doctrine of separation of powers is an important pillar of modern liberal democratic theories of the state. While we find discussion of the separation of powers as a crucial factor in the organization of government in Plato’s writings, the modern doctrine of separation of powers originates from the writings of John Locke, who advocated the separation between the legislature and the executive; Montesquieu, who introduced the judiciary as the third branch of government; and the American founding fathers, particularly Madison and Hamilton, who contributed to the desirable mode of relations between the powers—checks and balances, and introduced the horizontal separation of powers between central and local governments. Over the last decades, the structure of governance and the factually implemented separation of powers have experienced far-reaching changes. In some areas of the world, entirely new levels of governance have emerged (such as the supra-national level of the European Union). In addition, voluntary submission to internationally agreed institutions and ‘rules of the game’ (e.g., the WTO) plays an increasingly important role in all parts of the world. Domestically, the trend towards transparency and accountability has led to the creation of a number of new actors such as central banks, independent competition agencies, election commissions, anti-corruption commissions and alike. In many states, the possibility for direct participation in political decision-making by citizens, which bear on the original rationales of the doctrine of separation of powers, has markedly increased over recent years.
Legal research and the methodology employed to analyze and evaluate the law are conducted within a paradigmatic thinking. The term “paradigm shift” was coined by Thomas Kuhn when he put forward a theory about the development of the natural sciences. Kuhn disputed the modernistic description of Frances Bacon who presented scientific inquiry as one of constant and accumulative progress, like a building, which is constructed stone after stone. Kuhn argued that science develops in leaps. Regular scientific research is conducted within a set of boundaries that are based on presuppositions left unquestioned by the contemporary scientific community. These boundaries were dubbed by Kuhn “a paradigm”. Scientists in their research (and in their research agenda) are trying to complete a jigsaw puzzle, where the framework of the puzzle is pre-determined by the paradigm. However, in the course of scientific research it turns out that not all pieces fit their spots, and some pieces tend to cross the set boundaries. Scientists try to force the pieces into the slots they think are meant for them. But at one focal point the framework collapses. Doubts bring about rethinking of the pre-set presuppositions. The paradigm shifts; a new paradigm is constructed, which sets new presuppositions and a new research agenda. Regular scientific research continues within the new paradigm, until that too is ripe for replacement.
This chapter examines the judicial activism of the Israeli judiciary, and especially its Supreme Court. Section 2 offers some possible sources for the intense activism of the Israeli judiciary. Section 3 focuses on public law and mainly on the political science definition of judicial activism, while section 4 focuses on private law and the jurisprudential vantage point. Section 5 provides some concluding remarks and future prospects.
The Economic Analysis of Law will soon celebrate half a century. In recent decades it has been emerging as the dominant theoretical paradigm and scientific methodology for legal academia, and it is gradually capturing various segments of legal practice as well. Law and Economics was also acknowledged recently as a sub-field of the science of economics and some argue that law has become one of the most important areas of applied economics. Although for three decades Law and Economics prospered mainly in North America, recently it has rapidly proliferated also in Europe and elsewhere. This short essay focuses not on the content of Law and Economics but on its context. It places Law and Economics within a grand map of legal theories, adopting Thomas Kuhn's theory of the evolution of science, and it offers a very broad definition of Law and Economics vis-a-vis the methodology of legal research, rather than its subject matter. Next the paper points to several shortcomings of most contemporary Law and Economics literature, and to the need for changes in other areas to adapt Law and Economics to the 21st century. Two major points are emphasized: the role of technology in the L&E methodology and globalization as an important factor in the positive and normative analysis of law.
- How do global and transnational factors influence the capacity of states to be internally just?
- Has the state lost its capacity for autonomous action in the global economy, and thus its ethical significance for theories of justice? If so, which institutional reforms could address this problem?
- What is the role of the state in a just international order?
The authors address important connections between domestic social justice and global dynamics, by identifying problematic practices and trends in the current global order. They examine political, economic and legal changes and offer normative views on concrete policies and institutions that are particularly important and/or problematic – i.e. international health policies, the World Bank, taxation policies and the World Trade Organization.
Focusing on the relationship between social and global justice and establishing connections between political theory and empirical research, this book is vital reading for students and scholars of Politics, International Relations, and Development Studies.
Race and Photography studies the changing function of photography from the 1870s to the 1940s within the field of the “science of race,” what many today consider the paradigm of pseudo-science. Amos Morris-Reich looks at the ways photography enabled not just new forms of documentation but new forms of perception. Foregoing the political lens through which we usually look back at race science, he holds it up instead within the light of the history of science, using it to explore how science is defined; how evidence is produced, used, and interpreted; and how science shapes the imagination and vice versa. Exploring the development of racial photography wherever it took place, including countries like France and England, Morris-Reich pays special attention to the German and Jewish contexts of scientific racism. Through careful reconstruction of individual cases, conceptual genealogies, and patterns of practice, he compares the intended roles of photography with its actual use in scientific argumentation. He examines the diverse ways it was used to establish racial ideologies—as illustrations of types, statistical data, or as self-evident record of racial signs. Altogether, Morris-Reich visits this troubling history to outline important truths about the roles of visual argumentation, imagination, perception, aesthetics, epistemology, and ideology within scientific study.
Drawing on a wealth of medical and historical materials, Sander Gilman sketches details of the anti-Semitic rhetoric about the Jewish body and mind, including medical and popular depictions of the Jewish voice, feet, and nose. Case studies illustrate how Jews have responded to such public misconceptions as the myth of the cloven foot and Jewish flat-footedness, the proposed link between the Jewish mind and hysteria, and the Victorians' irrational connection between Jews and prostitutes. Gilman is especially concerned with the role of psychoanalysis in the construction of anti-Semitism, examining Freud's attitude towards his own Jewishness and its effect on his theories, as well as the supposed "objectiveness" of psychiatrists and social scientists.
The transformation of the human sciences into the social sciences in the third part of the 19th century was closely related to attempts to develop and implement methods for dealing with social tensions and the rationalization of society. This book studies the connections between academic disciplines and notions of Jewish assimilation and integration and demonstrates that the quest for Jewish assimilation is linked to and built into the conceptual foundations of modern social science disciplines. Focusing on two influential "assimilated" Jewish authors—anthropologist Franz Boas and sociologist Georg Simmel—this study shows that epistemological considerations underlie the authors’ respective evaluations of the Jews’ assimilation in German and American societies as a form of "group extinction" or as a form of "social identity." This conceptual model gives a new "key" to understanding pivotal issues in recent Jewish history and in the history of the social sciences.
Kant could propose and answer the fundamental question of his philosophy, How is nature possible?, only because for him nature was nothing but the representation (Vorstellung) of nature. This does not mean merely that "the world is my representation," that we thus can speak of nature only so far as it is a content of our consciousness, but that what we call nature is a special way in which our intellect assembles, orders, and forms the sense-perceptions. These "given" perceptions, of color, taste, tone, temperature, resistance, smell, which in the accidental sequence of subjective experience course through our consciousness, are in and of themselves not yet "nature;" but they become "nature" through the activity of the mind, which combines them into objects and series of objects, into substances and attributes and into causal coherences.
Oz-Salzberger, F. and Stern, Y. (eds.), The Israeli Nation - State: Political, Constitutional and Cultural Challenges (Israel: Society, Culture, and History). Boston: Academic Studies Press, 2014, (374 pages).
The last century proved that very few succeeded in forecasting the future of Israel. Even the few whose forecasts turned out to be correct employed a process that could, at best, be called hitting the target while shooting in the dark. There was no use made of a reliable methodology—one that would be open to evaluation. Serious methodological problems are continuously evident in the forecasts we constantly hear about Israel, because they can be considered—at least from the point of view of Futures Thinking—as the ruminations of a novelist, personal inclinations, subjective values and assumptions; some based on fact, and others not. Few of the forecasts were made on the basis of any research methods, and very few of them can be said to be based on valid and reliable methods of forecasting. At the very best, they lean on statistical methods that are linear extrapolations of processes that took place in the past. Unfortunately, few know, for example, that the reliability of forecasting based on linear extrapolation is no greater, on average, than thirty percent. Futures’ research of the last seven decades has proved that in the immediate and short range (two to five years) prediction reliability of linear extrapolation can reach up to 30 percent. If we are trying to predict trends beyond two to five years, the reliability of the forecast descends to 20 percent, especially when the systems we study are more complex and unbalanced. Thus, failure to formulate reliable predictions, which are the result of rational, valid, and transparent methodologies, could be fatal to anyone seeking to understand the trends. Therefore, herein I would like to suggest a different methodology, with which I would like to evaluate trends in the nationhood of the State of Israel in the long range—by mid twenty-first century. This methodology could provide an alternative explanation for the forces that are driving delegitimization of Israel as a national entity. This methodology can help us identify Israel’s future social trends. Its reliability in forecasting trends has been established to be more than sixty percent.
Why are words so important to so many Jews? Novelist Amos Oz and historian Fania Oz-Salzberger roam the gamut of Jewish history to explain the integral relationship of Jews and words. Through a blend of storytelling and scholarship, conversation and argument, father and daughter tell the tales behind Judaism’s most enduring names, adages, disputes, texts, and quips. These words, they argue, compose the chain connecting Abraham with the Jews of every subsequent generation. Framing the discussion within such topics as continuity, women, timelessness, and individualism, Oz and Oz-Salzberger deftly engage Jewish personalities across the ages, from the unnamed, possibly female author of the Song of Songs through obscure Talmudists to contemporary writers. They suggest that Jewish continuity, even Jewish uniqueness, depends not on central places, monuments, heroic personalities, or rituals but rather on written words and an ongoing debate between the generations. Full of learning, lyricism, and humor, Jews and Words offers an extraordinary tour of the words at the heart of Jewish culture and extends a hand to the reader, any reader, to join the conversation.
Compiled by a group of distinguished international scholars, including John Pocock, Diana Pinto, Thomas Maissen, and Fania Oz-Salzberger, this volume offers a threefold intellectual juncture. Its contributors analyze the liberal-Republican tension-field in a novel way, juxtaposing early modern political thought with twenty-first century political concerns. The volume conjoins Israeli political scholarship with its European and American counterparts, mapping differentials and commonalities. Topics include Israeli-Palestinian relations, law and justice, commerce and citizenship, and post-holocaust historical memory—all within the pioneering context of early modern political concepts and their contemporary significance. Of interest to researchers and advanced students of intellectual history, political philosophy, political science, international relations, European Studies, and Jewish and Israel studies.
Between the 16th and 18th centuries, European political philosophy felt intimately at home with the Hebrew Bible, enjoyed some familiarity with later Jewish texts and exegeses, and accommodated a small number of Jews within its political discourse. The period was characterized by a search for Hebraica Veritas, a view of De Republica Hebraeorum as the idealized polity, and biblical and Jewish ideas permeating the political imagination through art, literature, and legal codes. This volume is comprised of papers from the first ever international conference on political Hebraism held in Jerusalem in August 2004 under the auspices of the Shalem Center. The topic of political Hebraism is broached here from a number of approaches, including historical, literary, philosophical, theological, critical, and sociopolitical.
In einer Zeit, in der die überkommenen Identifikationsangebote durch Religion, Nation und kulturelle Überlieferungen zusehends aus dem Blickfeld geraten, um anderen, weniger verbindlichen Wertvorstellungen und Lebensnormierungen Platz zu machen, gewinnt die Frage nach einer möglichen Einbettung des „Jüdischen“ in Europa erneut an Brisanz. Die Autoren dieses Bandes nehmen eine Ortsbestimmung jüdischen Denkens in Europa im Spannungsfeld von Tradition und Moderne vor. Die Aspekte sind „Kanon“, „Gedächtnis“, „Identität“ und „Differenz“ in ihrem jeweiligen Verhältnis zur Geschichte. Themen wie Israel und Diaspora, Erinnerungsdiskurs und Shoa werden von den Autoren unter dem Aspekt eines einheitlichen historischen Narrativs befragt und erneut für die Diskussion fruchtbar gemacht. Die Beiträge dieses Bandes belegen dabei insgesamt, daß das Unversöhnte durch kritische Reflexion nicht aufgehoben, sondern zum Ausgangspunkt einer erneuten Begegnung zwischen den Generationen und ethnischen Gruppen führen kann. Eveline Goodman-Thau, Jerusalem, ist Professorin und Autorin zahlreicher Publikationen zur jüdischen Philosophie und Religionsgeschichte, Rabbinerin und Direktorin der Hermann-Cohen-Akademie für Religion, Wissenschaft und Kultur. Sie lehrt jüdische Kulturphilosophie an der Universität Wien. Fania Oz-Salzberger lehrt Geschichte an der Universität Haifa. Sie war Stipendiatin am Wolfson College, Oxford und am Wissenschaftscolleg zu Berlin. Zahlreiche Publikationen über die Aufklärung und die Geschichte des politischen Denkens.
Von Berlin geht eine Faszination aus, die bis nach Israel ausstrahlt. Immer mehr jüngere Israelis zieht es heute in die alt-neue deutsche Hauptstadt. Geht man dieser Faszination nach, begibt man sich auf einen Weg, der ins Zentrum der vielfältig verflochtenen und gebrochenen jüdischen und deutschen Geschichte führt.
Weder das Berlin der Weimarer Republik noch die Hauptstadt des »Dritten Reichs« ist von der historisch-imaginären Landkarte Israels wegzudenken. Tausende von gebürtigen Berlinern sind Israelis geworden, prägende hebräische Schriftsteller wie Lea Goldberg und S. J. Agnon haben entscheidende Jahre in Berlin verbracht. Israel hat auch eine Berliner, eine europäische Vergangenheit. Die israelische Historikerin Fania Oz-Salzberger hat ein Jahr in Berlin gelebt und sich mit den eigenen gemischten Gefühlen wie mit denen anderer Israelis zu diesem gleichermaßen realen und imaginären Ort auseinandergesetzt. Wie Erich Kästners Emil, einem Helden ihrer Kindheitsbücher, entdeckt sie bei ihrer Reise durch Berlin vieles, was ihr die eigene Welt neu erschließt, ihre Wahrnehmung für bestimmende Momente des israelischen kulturellen Codes schärft. Lebendig und erhellend erzählt sie von Begegnungen in und mit Berlin, von den Erfahrungen und Familienerinnerungen einzelner, viele individuelle Geschichten, die eine Welt wiederauferstehen lassen, die es nicht mehr gibt und die doch fortwirkt – ein Erbe, das Israelis und Deutsche heute zugleich dauerhaft verbindet und trennt.
This is a study of the transmission of political ideas across languages and cultures, and in particular of a notably fruitful encounter between two distinct branches of 18th-century political discourse: the reception of Scottish civic ideas, developed most powerfully in the works of the Edinburgh historian-philosopher Adam Ferguson, by German intellectuals of the Enlightenment and Romantic eras. This book's detailed and challenging analysis places Ferguson in the context of the Scottish Enlightenment, and explores the impact of his theories on German Enlightenment thinkers. It traces the passage of Ferguson's civic humanism across linguistic and cultural borders, and highlights the linguistic stumbling-blocks and conceptual tensions that resulted. The book argues that there resulted a complex and largely unintentional shift of Scottish civic concepts into a German vocabulary of spiritual perfection and inner life, and that the misreading of Ferguson and other Scottish thinkers contributed much to the richness of German intellectual life in the late 18th and early 19th centuries.
International Law and the Rule of Law under Extreme Conditions. An Economic Perspective Contributions to the XIVth Travemünde Symposium on the Economic Analysis of Law (March 27–29, 2014), Ed. by Thomas Eger, Stefan Oeter, and Stefan Voigt, Mohr-Siebeck, Tübingen 2016 (420 pages).
The ‘rule of law’ has attracted a lot of scholarly writings as well as political and public rhetoric in recent years. On the one hand, scholars found that adherence to the rule of law can be regarded as the most significant explanatory factor for various measures of a country’s success, both in social - quality of life - realm and in the pure economic realm. On the other hand, various governments’ responses to terror threats since 9/11, including responses of established liberal democracies, brought about a surge in positive and normative writings, as well as public debates, about the rule of law under extreme conditions or the deviations from the rule of law, even by the most liberal democracies. However, the international law aspects regarding the rule of law under extreme conditions is a field that had received almost no attention so far. Discussing the rule of law under extreme conditions in the international arena from a Law and Economics perspective raises several challenges. First, although the concept of the rule of law as an ingredient of the ‘good’ state, is established (although its precise definition is not agreed upon), the basic definition of the rule of law in the international arena is a much more virgin field. Second, Extreme conditions may challenge the normative and positive analysis of the rule of law. The theory of the state from which we derive the common understanding of the principle of the rule of law deals with the regular operation of collective life, institutions and decision-making. Under extreme conditions most countries establish a different form of the rule of law (an emergency constitution, as phrased by some), compromising some of its essentials during regular times. It can be argued on the normative level that this is justifiable; but to what extent and in which format? There is no coherent paradigm yet for the analysis of the desirable as well as the de-facto rule of law “balance” (e.g. state security versus human rights) under extreme conditions. The third major challenge relates to the definition of those extreme conditions that merit a special look vis-à-vis the rule of law. Three types of extreme conditions have been discussed by the literature: (1) belligerency, war, terror and alike; (2) natural and man-made disasters; and (3) political or economic meltdowns. Are extreme conditions in the international arena identical to extreme conditions in the context of the state? Is the familiar distinction between the three types of extreme conditions referred to in the context of the state applicable to the international sphere?
This book explores the economic analysis of intellectual property law, with a special emphasis on the Law and Economics of informational goods in light of the past decade’s technological revolution. In recent years there has been massive growth in the Law and Economics literature focusing on intellectual property, on both normative and positive levels of analysis. The economic approach to intellectual property is often described as a monolithic, coherent approach that may differ only as it is applied to a particular case. Yet the growing literature of Law and Economics in intellectual property does not speak in one voice. The economic discourse used in legal scholarship and in policy-making encompasses several strands, each reflecting a fundamentally different approach to the economics of informational works, and each grounded in a different ideology or methodological paradigm. This book delineates the various economic approaches taken and analyzes their tenets. It maps the fundamental concepts and the theoretical foundation of current economic analysis of intellectual property law, in order to fully understand the ramifications of using economic analysis of law in policy making. In so doing, one begins to appreciate the limitations of the current frameworks in confronting the challenges of the information revolution. The book addresses the fundamental adjustments in the methodology and underlying assumptions that must be employed in order for the economic approach to remain a useful analytical framework for addressing IPR in the information age.
This paper is intended to provide a preliminary and tentative look at the changing world of law with the emergence of Cyberspace from the perspective of the economic approach to law. One can describe the Law and Economics Movement as comprising three generations, which can be perceived as separate paradigms of sorts: the traditional Chicago School economic analysis of law, Transaction Cost analysis, and Neoinstitutional economic analysis of law and of legal institutions. The Chicago School views the micro-economic model as the suitable theoretical framework for the analysis of all legal questions, including those which are not traditional market issues. The tools of micro-economic theory - the curves of supply and demand - can be applied to analyze the market of children for adoption or the market of crimes or the market of laws in general, as they are applied to the market of apples or cars. The Chicago framework does not distinguish between rational individuals and other, more complex, market players such as firms, governments or agencies. The state, its structure and institutions are perceived as exogenous to the analysis. Markets and states are assumed to correspond to each other.