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War’s historical relationship to the creation of territorial nation-states is well known, but what empirical and normative role does war play in creating the citizen in a modern democracy? Although contemporary theories of citizenship and human rights do not readily acknowledge a legitimate, generative function for war – as evidenced by restrictions on aggression, annexation of occupied territory, expulsions, denationalization, or derogation of fundamental rights – an empirical assessment of state practice, including the interpretation of international legal obligations, suggests that war plays a powerfully transformative role in the construction of citizenship, and that international law and norms implicitly accept this. <br />Dominant discourses on citizenship in the liberal and cosmopolitan traditions focus on the individual as the unit of analysis and normative concern, and on his rights against the state. At the same time, the choice of how to construct citizenship – to whom to grant it or from whom to withhold it, and what content to give citizenship – is closely linked to questions of security and identity: citizenship either presupposes or purports to create some measure of common identity among citizens, and implies obligations as well as rights. This chapter argues that, in assessing legal and moral positions, this role – if not necessarily approved – must be accounted for to achieve a fuller understanding of how peace, war and rights are related. <br />Human rights may be conceptualized as universal, but their application and specific content are often mediated through the state, and therefore understanding how states retain the ability to define the contours of citizenship, including through the effects of war, is critical to an understanding of the actual scope of human rights as a legal enterprise and a lived experience. <br />The article will examine the formal limits placed on war as an instrument that could affect citizenship; then it will examine the evidence for war’s continued effect (through means such as differentiation between citizens and alien residents, expulsion of aliens, assimilation of refugee flows, and border changes); then it will advance an argument about how the factual effects of war interact with legal doctrine (such as through selective definition and interpretation of wars, perfection of wartime changes in peace treaties, and novel demographic changes introduced by peace treaties). <br />The article considers the concepts of participation, loyalty, and treason; the evidence and implications of wartime propaganda; the rules and practice governing transfer of populated territory between sovereigns; the incentives that the laws of war create for individuals’ identification with the state; and the accommodation in peace plans of demographic change wrought by war. <br />Principal reference is made to changes in citizenship status following the wars of the former Yugoslavia, the Algerian decolonization, the postwar settlement of Europe, and to the debates about the contours of citizenship in Israel and the Palestinian territories.

The key problem addressed in the paper is that of the legal pluralism, more specifically the pluralism of legal systems within one state that pursues the accommodation of religious freedom claims. In its controversial Refah decisions the Strasbourg Court held that the prohibition of the Turkish Welfare Party was “necessary in a democratic society” because its plan to set up a plurality of legal systems was not “compatible with fundamental democratic principles”[1]. This paper tries to inquire into the notion of legal pluralism, tries to test normative assumptions made by the Court in its regard and argues that a “no plurality” approach would be overly simplistic and that a liberal approach would require different degrees of pluralization (some of which already exist to accommodate differences and diversity within a society) to be extended to religion, without however endangering constitutional democracy. <br />It is necessary to point out at least two major theoretical contexts in which this problem should be considered. One is undoubtedly the issue of ‘militant’ democracy: once we assume that constitutional democracy and legal pluralism are incompatible, we give a (part of) definition of democracy, which entitles us to reject any changes proposed to it while retaining the claim to be democratic. If we know what is democracy in a substantive sense, which values it is designed to protect (e.g. secularism or fundamental rights) we can legitimately reject any changes to that vision as a measure protective of such values[2]. <br />Another context that is relevant is the issue of universality and cultural relativism. It first appears when we attempt to define democracy as a substantive notion, which necessarily assumes a value judgement. It also becomes relevant if we mind that the rationale of legal pluralism is the necessity to recognize, respect and tolerate different views and visions of ‘happiness’. In its pure form the idea of relativism and legal pluralism is represented in the classical version of state-centered international law system, where states posses equal and unlimited internal sovereignty[3]. However even within the State any kind and instance of legal pluralism is about the respect and tolerance of the different normative values and views. Only straightforward consensus on all the rules and values as universal can justify total rejection of legal pluralism. <br />The paper will start by an attempt to clarify the understandings of legal pluralism in social sciences and law. The second part will try to construe a liberal argument in favor of advancing legal pluralism to a certain degree, basing on the individual right to freedom of religion and conscience. Instead of relying on the ‘collective rights’ argument, it rather believes that individual rights provide a sufficient basis for this claim, as far as religious life and consciousness are deemed an important part of individual personality and self-determination. The third part tries to balance the claims of legal pluralism by considering arguments against such a model of society. <br /><br clear="all" /> <br /> <br />[1] Case Of Refah Partisi (The Welfare Party) And Others v. Turkey, <em>(Applications nos. 41340/98, 41342/98, 41343/98 and 41344/98) </em>Judgment, 31 July 2001 [hereinafter <em>Refah (1)</em>] paras 70-71;<em>See also </em>Case of Refah Partisi (the Welfare Party) and Others v. Turkey <em>(Applications nos. 41340/98, 41342/98, 41343/98 and 41344/98), </em>judgment, 13 February 2003, [hereinafter <em>Refah(2)</em>] paras 98 and 119. <br /> <br /> <br />[2] See <em>infra</em>, text accompanying notes 35-39. <br /> <br /> <br />[3] See <em>infra</em>, note 8, text for the note 25 and page 14.