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  1.  2
    Zionism and Political Liberalism: The Right of Scattered Nations to Self-Determination.Yitzhak Benbaji - 2020 - Theoretical Inquiries in Law 21 (2):229-254.
    This Article offers a defense of egalitarian Zionism that, unlike Chaim Gans’s argument for this view, does not appeal to the Jewish problem in justifying the Zionist requirement for a state with a dominant Jewish community. The argument extracts from the egalitarian principles that underlie John Rawls’s political liberalism, a conception of global justice according to which members of a scattered nation are entitled to a fair opportunity to establish a new state within which they enjoy the advantage of demographic (...)
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  2.  4
    Inclusion and Representation: The Settlement of Property Claims of the Dispossessed in the Aftermath of an Armed Conflict.Eyal Benvenisti & Tamar Megiddo - 2020 - Theoretical Inquiries in Law 21 (2):397-425.
    This Article examines the authority of states to settle individual private property claims in post–conflict negotiations towards settlement. We analyze this question by exploring the limits of states’ authority to take or limit private property rights for the public good. We argue that this authority rests on two cumulative justifications: the inclusion of the property owners among the public that stands to benefit from the public good, and their representation by the government that decides on the taking of the property. (...)
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  3.  1
    In Pursuit of Political Imagination: Reflections on Diasporic Jewish History.Julie E. Cooper - 2020 - Theoretical Inquiries in Law 21 (2):255-284.
    In recent years, scholars of Jewish politics have invested political hopes in the revival of “political imagination.” If only we could recapture some of the imaginativeness that early Zionists displayed when wrestling with questions of regime design, it is argued, we might be able to advance more compelling “solutions” to the Israeli-Palestinian conflict. Yet how does one cultivate political imagination? Curiously, scholars who rehearse the catalogue of regimes that Jews have historically entertained seldom pose this question. In this Article, I (...)
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  4.  1
    How the Law of Return Creates One Legal Order in Palestine.Hassan Jabareen - 2020 - Theoretical Inquiries in Law 21 (2):459-490.
    The prevailing discourse in Israeli academia on justifying the values of Israel as a “Jewish and democratic state” takes the form of a debate involving questions of group rights of a national minority, as in any liberal democracy. The framework of this discourse relies on three interconnected, hegemonic assertions. These assertions assume the applicability of equal individual rights, put aside the Occupation of the West Bank and Gaza as irrelevant for the “Jewishness” of the state as it belongs to a (...)
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  5.  2
    Disentangling Displacements: Historical Justice for Mizrahim and Palestinians in Israel.Itamar Mann - 2020 - Theoretical Inquiries in Law 21 (2):427-458.
    Israel’s discursive strategy for legitimizing the displacement of Palestinians in 1948 involved describing it as part of a regional “population exchange.” This argument contributed to three critical characteristics of Israeli citizenship. First, it solidified an understanding of citizenship as a negation of persecution and a haven for would-be Jewish refugees. Second, it tied Mizrahi claims against states across the Middle East to Palestinian claims against Israel. Israel thus exploited Mizrahi refugee rights for its geostrategic interests—a fight against the claims of (...)
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  6.  2
    Justifying the Right of Return.David Miller - 2020 - Theoretical Inquiries in Law 21 (2):369-396.
    With the Israeli-Palestinian conflict in mind, this Article asks whether there is a human right to return to one’s country, and if so what justifies it. Although such a right is widely recognized in international law, who can claim it and on what basis remains ambiguous; the ambiguity is revealed by asking what “country” means in “return to one’s country.” I argue that to treat the right simply as an adjunct of citizenship is too narrow an approach, even though the (...)
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  7.  3
    Territorial Justice in Israel/Palestine.Margaret Moore - 2020 - Theoretical Inquiries in Law 21 (2):285-304.
    This Article examines the two dominant theories of territorial justice — one associated with justice, the other with self–determination. It applies these theories to the case of Israel/palestine, and to ongoing claims by political actors with respect to territorial rights there. It argues that justice theory seems to straightforwardly suppose the territorial rights of the State of Israel, at least if historical and retrospective considerations are not at the forefront, though once they are brought in, this argument can be deployed (...)
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  8.  1
    The Idea of Israel as a Jewish State.Alan Patten - 2020 - Theoretical Inquiries in Law 21 (2):531-559.
    Israel is often described as a Jewish state and as the locus of Jewish self-determination. How should these phrases be understood? How can they be squared with a commitment to equal citizenship for non-Jewish Israelis? This Article distinguishes between descriptive and normative answers to these questions. The descriptive answer interprets the phrases as referring to the fact that a majority of Israelis are Jewish. The normative answer reads into the phrases a special obligation to promote the common good of the (...)
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  9.  5
    “Wretched Nurseries of Unceasing Discord”: Nationalism, War, and the Project of Peace.Cheyney Ryan - 2020 - Theoretical Inquiries in Law 21 (2):207-228.
    Is there an intimate connection between nationalism and war? Does the right to national self-determination invariably lead to bellicose relations with others? These have been central concerns in the literature on nationalism and war. They have also been concerns of political thinkers/activists who have worried about these connections and have sought to fashion a conception of national identity free of its warlike proclivities. This essay explores the link of war, nationalism, and national self-determination with reference to the founding of the (...)
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  10.  2
    Inheriting the Right of Return.Victor Tadros - 2020 - Theoretical Inquiries in Law 21 (2):343-367.
    This Article assesses one kind of argument for an intergenerational right of return in the context of the Israel/palestine conflict. The question is whether descendants of those who were made refugees in the 1948 War can acquire occupancy rights from their parents through inheritance and bequest over territory that they have never lived on. Standard arguments for their inheriting such rights fail for a range of reasons. However, a less familiar argument for inheritance or bequest succeeds—descendants can acquire such rights (...)
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  11.  1
    Constructing “Private” Historical Justice in State-Building.Manal Totry-Jubran - 2020 - Theoretical Inquiries in Law 21 (2):305-341.
    Wealthy philanthropic individuals operating within private law have been largely absent from the historical justice narrative of states in transition and, consequently, from normative discussion regarding the justification of their actions under the auspices of the market. This Article seeks to fill this void by examining the “private” historical justice of Jewish state-building prior to the establishment of Israel. Specifically, it focuses on the legal history of Baron Edmond de Rothschild’s settlement project during the Ottoman and Mandate periods and investigates (...)
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  12.  1
    Historical Justice: On First-Order and Second-Order Arguments for Justice.Raef Zreik - 2020 - Theoretical Inquiries in Law 21 (2):491-529.
    This Article makes three moves. First it suggests and elaborates a distinction—already implicit in the literature—between what I will call the first and second order of arguments for justice. In part, it is a distinction somewhat similar to that between just war and justice in war. SOAJ are akin to the rules governing justice in war or rules of engagement, while bracketing the reasons and causes of the conflict. FOAJ on the hand are those principles of justice and arguments that (...)
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  13.  6
    Age, Equality, and Vulnerability.Alexander A. Boni-Saenz - 2020 - Theoretical Inquiries in Law 21 (1):161-185.
    This Article uses age as an entry point for examining how temporal and methodological issues in egalitarianism make substantive equality an unattractive goal for vulnerability theory. Instead, vulnerability theory should adopt a continuous doctrine of sufficiency, which is a better fit with vulnerability theory’s underlying aims and rhetoric. Instead of evaluating what individuals have in relation to others, sufficiency refocuses the inquiry on whether we have enough throughout the lifecourse. In the context of vulnerability theory, enough should be defined as (...)
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  14.  7
    A Socio-Legal Analysis of Elder Care Laws in India.Deblina Dey - 2020 - Theoretical Inquiries in Law 21 (1):77-102.
    Care for older persons in India is considered to be the prerogative of the family, particularly the adult children. The legal and policy discourse reiterates this notion as well. In a country that glorifies the notion of filial piety, one finds a rising number of instances of parental neglect and abuse over the last decade. Against this background, it is important to revisit the existing laws, especially the Maintenance and Welfare of Parents and Senior Citizens Act which aims to provide (...)
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  15.  5
    25 Years of Elder Law: An Integrative and Historical Account of the Field of Law and Aging.Israel Doron - 2020 - Theoretical Inquiries in Law 21 (1):1-24.
    Twenty-five years have passed since my first exposure to the field of “elder law.” From a “young” master’s student I have become a law professor and a gerontologist who specializes in law and aging. The journey I have personally experienced in the last quarter-century provided me with some perspective regarding the field of elder law. In this Article, I try to summarize my experience and share some personal insights on the field. This is naturally a very personal and subjective experience. (...)
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  16.  9
    Vulnerability, Law, and Dementia: An Interdisciplinary Discussion of Legislation and Practice.Lottie Giertz & Titti Mattsson - 2020 - Theoretical Inquiries in Law 21 (1):139-159.
    Legislation for dementia care needs to be continually rethought, if the rights of older persons and other persons with dementia are to be addressed properly. We propose a theoretical framework for understanding vulnerability and dependency, which enables us to problematize the currently prevailing legal conception of adults as always able — irrespective of health or age — to act autonomously in their everyday lives. Such an approach gives rise to difficult dilemmas when persons with dementia are forced to make decisions (...)
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  17.  5
    Elder Law and Its Justifications: A Hybrid Vision Inspired by Family Law Jurisprudence.Daphna Hacker - 2020 - Theoretical Inquiries in Law 21 (1):25-54.
    This Article calls for a departure from the ‘positivist–professional’ definition of Elder Law. It offers a new definition that demands answers regarding the justifications for this legal area and the normative base that should guide its content. The paper draws on findings from a qualitative study with grown children who have an elderly parent in need. These findings point toward a) a preliminary theoretical framework that justifies a special area of Elder Law, embracing and transcending that of anti-ageist law, and (...)
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  18.  5
    A Framework for Theoretical Inquiry Into Law and Aging.Nina A. Kohn - 2020 - Theoretical Inquiries in Law 21 (1):187-205.
    With populations aging worldwide, the need for appropriate and just public policy related to old age is critical. Elder law scholars can support the creation of such policy by advancing the theoretical understanding of the relationship between law and aging — understanding that can help policymakers identify and prioritize goals, and evaluate potential interventions. This Article aims to provide a framework for this work by distilling the core theoretical questions at the intersection of law and aging. It also challenges common (...)
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  19.  15
    Intergenerational Support of Older Adults by the ‘Mature’ Sandwich Generation: The Relevance of National Policy Regimes.Noah Lewin-Epstein, Aviad Tur-Sinai & Merril Silverstein - 2020 - Theoretical Inquiries in Law 21 (1):55-76.
    In this article we examine the association between national welfare regime and the propensity of middle–aged and older individuals with adult children of their own to provide social support to aged parents. Using data from mature adults in 26 European countries, we examine whether older and younger generations compete for the time resources of the middle “sandwiched” generation, and whether national policy context shapes this competition. Contrary to expectations, we found that sandwich generation members were less likely to provide support (...)
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  20.  8
    Should Age Discrimination Be an Integral Part of Employment Discrimination Law?Lilach Lurie - 2020 - Theoretical Inquiries in Law 21 (1):103-138.
    This Article argues that a universal approach to age discrimination promotes justice and efficiency. As explained herein, legal regimes regulate age discrimination in employment in various ways. While some regimes create specific anti–age discrimination legislation, others ban most kinds of employment discrimination, including age discrimination, in a general way. These latter promote a universal approach to age discrimination. The current Article explores the theoretical justifications for either a particularistic or a universal approach to age discrimination. Additionally, it enriches its theoretical (...)
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