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Diasporas and Deliberative Democracy A thesis submitted for the degree of Doctor of Philosophy of The Australian National University Diasporas and Deliberative Democracy A case study of Jewish diaspora involvement in constitutional deliberations in Israel Submitted by: Shay Keinan Revised Version, March 2018 Supervisors: Dr. Ron Levy (chair of panel); Professor Kim Rubenstein; Associate Professor Afshin Akhtar-Khavari © Copyright by Shay Keinan (2018) All Rights Reserved ii I declare that this thesis is my own original work, Shay Keinan, March 2018 Word count: 92,364 (including footnotes) iii iv Acknowledgments Many people have helped me and encouraged me during the process of writing my thesis. I wish to thank in particular my main supervisor Dr. Ron Levy for his invaluable comments, suggestions and guidance. I would also like to thank Prof. Kim Rubenstein for her insightful comments and continuing encouragement, Associate Prof. Afshin Akhtar-Khavari for his feedback and my partner Felicity Hammond for her support. This thesis is dedicated to my father, Shlomo Keinan, who always inspired me to read and to learn. v vi Abstract The boundaries of citizenship are increasingly contested. The trend among scholars is to try to expand the state’s responsibilities and duties to include non-citizens in the relevant polity. Legal, social and political theorists ask whether citizenship can or should exist beyond the nation state and a defined territory. This debate closely relates to the burgeoning research regarding diaspora communities and their connections with their countries of origin or homelands (‘kin-states’). Diaspora communities have always maintained some level of interest in the affairs of their kin- states, but globalisation and advanced communication technologies have made it easier for people in the diaspora to engage in activities that are directed at the political and social life of their kin-states. Kin-state governments also increasingly extend their actions beyond their state borders and reach out to their diaspora communities in order to promote a specific definition of the national community and to reap political and economic gains. This trend of diaspora communities influencing political decisions in a country in which they do not reside raises a question of legitimacy in traditional liberal-democratic models of governance: why should diaspora people be allowed to affect political decisions in their kin-state when they may not have to bear the consequences of such decisions? As diaspora populations become more and more involved in political processes in their kin-states, modern democratic theories need to adapt in order to accommodate such encroachments on traditional democratic principles. In this thesis I analyse the challenges and legal implications created by the existence of large and influential diaspora communities in today’s globalised world. I connect diaspora theory with deliberative democratic theory, filling a gap in deliberative democratic literature. I contend that elite models of deliberative democracy can be useful in overcoming the challenges mentioned above. I examine the role of constitutional courts in a deliberative democracy and argue that they may be better situated to conduct deliberations in divided societies where ethnic and religious vii tensions prevent other democratic bodies from deliberating effectively. This is especially relevant when dealing with divided societies with large diasporic populations. To support these claims, I examine the Israeli Supreme Court. I analyse the Israeli Supreme Court’s unique deliberative features and explain how these features have enabled diaspora Jews (and other groups of non-citizens) to participate in the Israeli democratic process. I examine illustrative cases in which Jewish diaspora activists were involved in proceedings and deliberations at the Israeli Supreme Court. The case studies demonstrate that, under certain circumstances, diaspora communities can legitimately and effectively participate in political processes in their kin-states, challenge constitutional norms and influence government policies and laws. viii Contents I. Overview ................................................................................................................... 1 1. Introduction .................................................................................................... 1 2. Methodology................................................................................................... 8 3. Outline of Chapters ....................................................................................... 10 II. Diaspora populations: theory and practice ............................................................ 14 A. What is a diaspora? .............................................................................................. 14 B. Diasporic identity ................................................................................................. 18 C. Citizenship and nationality ................................................................................... 22 1. Nationality and ethnicity .............................................................................. 23 2. Citizenship ..................................................................................................... 26 D. Diaspora engagement – legal and social effects .............................................. 29 1. Preferential and dual citizenship rights ........................................................ 30 2. Diaspora participation in elections and referendums .................................. 32 3. Other methods of diaspora engagement ..................................................... 36 4. Diaspora advocacy in divided societies ........................................................ 41 E. Challenges of diaspora-kin-state relationships .................................................... 44 1. Changes in citizenship and nationalism ........................................................ 45 2. Proposed solutions ....................................................................................... 48 F. Summary .............................................................................................................. 53 III. Theory of Deliberative Democracy ......................................................................... 55 A. What is deliberative democracy? ........................................................................ 55 B. Problems in modern democracies ....................................................................... 58 C. Deliberative democracy in practice ..................................................................... 60 ix D. Legitimacy ......................................................................................................... 63 1. Legitimacy in political theory ........................................................................ 64 2. Legitimacy in democratic theory .................................................................. 66 3. Legitimacy in deliberative democratic theory .............................................. 67 4. Legitimacy in international law ..................................................................... 74 E. How deliberation should be conducted ............................................................... 79 1. What counts as ‘deliberative’? ..................................................................... 79 2. Transparency ................................................................................................ 83 F. Popular versus elite models of deliberation ........................................................ 85 G. The approach adopted in this thesis ................................................................ 87 H. Deliberative democracy and diasporas ............................................................ 89 1. Deliberative democracy in divided societies ................................................ 90 2. Creating a deliberative environment ............................................................ 94 3. From divided societies to diaspora communities ......................................... 98 4. Summary ..................................................................................................... 102 IV. Elites, democracy and deliberation ...................................................................... 104 A. Elites and democracy ......................................................................................... 104 B. Elite models of deliberative democracy ............................................................ 109 C. A nuanced view of elite deliberation ................................................................. 113 D. Summary ......................................................................................................... 118 V. Courts as deliberative democratic bodies ............................................................ 120 A. The deliberative qualities of constitutional courts ............................................ 121 B. Are courts democratic? ...................................................................................... 130 C. The court’s role in promoting popular deliberation .......................................... 137 D. Evaluating the deliberative quality of courts ................................................. 142 E. Summary ............................................................................................................ 146 x VI. Case study – The Israeli Supreme Court ..............................................................
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