Citizenship as Inherited Property

• Published date: 01 June 2007
• Date: 01 June 2007
• Author: Ran Hirschl,Ayelet Shachar
• DOI: 10.1177/0090591707299808
• Subject Matter: Articles

Political Theory

Volume 35 Number 3

June 2007 253-287

© 2007 Sage Publications

10.1177/0090591707299808

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253

Citizenship as

Inherited Property

Ayelet Shachar

Ran Hirschl

University of Toronto, Canada

The global distributive implications of automatically allocating political

membership according to territoriality (jus soli) and parentage (jus sanguinis)

principles have largely escaped critical scrutiny. This article begins to address

this considerable gap. Securing membership status in a given state or region—

with its specific level of wealth, degree of stability,and human rights record—

is a crucial factor in the determination of life chances. However, birthright

entitlements still dominate both our imagination and our laws in the allotment

of political membership to a given state. In this article we explore the striking

conceptual and legal similarities between intergenerational transfers of

citizenship and property. The analogy between inherited citizenship and the

intergenerational transfer of property allows us to use existing qualifications

found in the realm of inheritance as a model for imposing restrictions on the

unlimited and perpetual transmission of membership—with the aim of

ameliorating its most glaring opportunity inequalities.

Keywords: citizenship; property; intergenerational transfer; equality of

opportunity; global justice

“I am astonished that ancient and modern writers on public matters have not

ascribed greater influence over human affairs to the laws governing

inheritance. Such laws belong, of course, to the civil order, but they should be

placed first among political institutions because of their incredible influence on

a people’s social state;...in a sense, they lay hold of each generation before it

is born. Through them, man is armed with an almost divine power over the

future of his fellow men. Once the legislator has regulated inheritance among

citizens, he can rest for centuries. Once his work has been set in motion, he can

remove his hands from his creation. The machine acts under its power and

seems almost to steer itself toward a goal designated in advance. If construed

in a certain way, it collects, concentrates, and aggregates property, and before

long, power as well.”

Alexis de Tocqueville, Democracy in America (1835)

254 Political Theory

The vast majority of today’s global population—97 out of every 100

people—have acquired their political membership by virtue of birthplace or

“pedigree.”1 There is little doubt that securing membership status in a given

state or region—with its specific level of wealth, degree of stability, and

human rights record—is, even in the current age of increased globalization

and privatization, a crucial factor in the determination of life chances.

However, birthright entitlements still dominate both our imagination and

our laws in the allotment of political membership to a given state. In fact,

material wealth and political membership (which are for many the two most

important distributable goods) are the only meaningful resources whose

intergenerational transfer is still largely governed by principles of heredity.

And whereas the normative foundations of these principles have been thor-

oughly discussed in terms of the intergenerational transfer of property, they

have seldom been considered in terms of citizenship.

This lacuna is especially disturbing in light of recent and vibrant debates

in political and legal theory concerning the claims of minority groups, the

narratives of collective-identity formation, and the ethics of political bound-

aries.2These debates engage with what can be referred to as the “identity-

bonding” dimension of citizenship. What remains conspicuously absent from

these discussions, however, is a serious analysis of what we might call the

“opportunity-enhancing” implications of the entrenched norm and legal prac-

tice associated with automatically allocating political membership according

to parentage (jus sanguinis) and territoriality (jus soli) principles. This article

begins to address this considerable gap. It offers a new perspective from

which to conceptualize birthright citizenship laws, one that focuses on how

these laws construct and govern the transfer of membership entitlement as a

form of inherited property. We then employ this framework in order to pro-

vide a new prism through which to understand the “worth” of citizenship in

an unequal world. This analysis also opens the door to fresh ideas for miti-

gating the profound distributive consequences that attach to relying on cir-

cumstances of birth in allotting political membership.

In today’s world, one’s place of birth and one’s parentage are—by law—

relevant to, and often conclusive of, one’s access to membership in a partic-

ular political community.3In this way, birthright citizenship largely shapes

the allocation of membership entitlement itself (“demos-demarcation”). But

it does more than that: it also distributes opportunity on a global scale. In a

world where membership in different political communities translates into

very different starting points in life, upholding the legal connection between

birth and political membership clearly benefits the interests of some (heirs of

membership titles in well-off polities), while providing little hope for others

(those who do not share a similar “birthright”). This raises the moral disdain

against acquisition and transfer rules that systemically exclude prospective

members on the basis of ascriptive criteria. It also highlights the urgent need

to place the discussion of bounded membership within a broader framework

of debate, exploring the distributional effects of birthright citizenship, which

often translate into dramatically different life prospects for the individuals

involved. And whereas we find vibrant debates about the legitimacy of citi-

zenship’s demos-demarcation function (or “gate-keeping”), the perpetuation

of unequal starting points through the intergenerational transmission of mem-

bership has largely escaped scrutiny. It remains conveniently concealed under

the current system of entailed citizenship transmission.

Unlike advocates of global citizenship who seek to redistribute mem-

bership itself, we wish to mitigate the inequality of starting points that

attaches to the present system of birthright citizenship laws. It is here that

the conceptual analogy to property proves most helpful. After distinguish-

ing between a narrow and broad conception of property, we turn to a

description of the main insights that can be applied from the realm of inter-

generational transfer of property to the study of intergenerational transfer

of citizenship. Ultimately, we argue that once the analogy between property

and citizenship is drawn, the rich literature on property and inheritance

becomes relevant for our discussion of the intergenerational transmission of

citizenship. This leads us to defend the protections that citizenship guaran-

tees to those included within the circle of membership, while at the same

time targeting the unequal effects of this transmission system on those who

remain excluded by its rigid, birth-based entitlement structure. In short, we

argue that the intergenerational transmission of membership titles should

not serve to “naturalize,” as it has done to date, the accompanying wealth-

preserving functions of the current membership-allocation system. To

frame citizenship in terms of inherited property and acknowledge birthright

entitlement as a human construct not impervious to change is to expose the

extant system of distribution to critical assessment.

We begin our discussion of citizenship transfers as wealth transfers by

highlighting the disparities in the living conditions and opportunities

offered to citizens born into different political communities in an unequal

world. In the second section, we survey a few key concepts in property

theory that serve as a basis for our conceptual analogy between property

and citizenship regimes. In the third section, we show that a broad concep-

tion of property corresponds with two core functions of bounded member-

ship in the world today: “gate-keeping” and “opportunity-enhancing.” In

the fourth part we venture into an exploration of the early common-law

Shachar and Hirschl / Citizenship as Inherited Property 255