Tainted Law? Why History Cannot provide the Justification for Abandoning… 93 mentions as a criterion of admission to citizenship in some cases and the descent implied in the ius sanguinis principle are not the same and should not be conflated. In fact, they are mutually exclusive: ‘descent’ in ius sanguinis is about descent from a citizen, whatever his or her ‘ethnicity’. The ‘ethnic descent’ used as a criterion in some cases of co-ethnic inclusion is precisely about people who are not citizens. The supposed historical taintedness of the ius sanguinis principle results from the conflation of these different types of ‘descent’, and of the related unhappy connotations of the term ‘blood’, which invokes associations of ‘race’. A lot of this confusion was created in the Brubaker-inspired debates of the 1990s about German citizenship. In a telling example, political scientist Patricia Hogwood claimed that ‘the concept and law of citizenship in Germany were originally formulated in the context of nation-state development based on cultural or ‘völkisch’ nationalism. … The fact that the German legal framework for citizenship and naturalisation remains firmly rooted in the jus sanguinis principle has meant that citizenship policy in Germany is inextricably entangled in concepts of ethnicity and race. … The principle of legal privilege [for ethnic Germans] on the basis of racial origins smacks of the racial policies of the Nazi period …’ (my emphasis, J.P.).4 Yet ius sanguinis per se has nothing to do with ‘ethnicity’ and ‘race’. As Dieter Gosewinkel pointed out in his important book on German citizenship, the ‘blood’ here is a ‘formal and instrumental’ notion, not to be confused with ‘substantial’ blood conceptions of racial biology.5 Those only entered German citizenship law through the Nazi Nuremberg laws. Before, a German Jew, whom the Nazis would later construe to be of a different ‘race’ for having the wrong ‘blood’, would transmit his German citizenship to his children iure sanguinis, just like other Germans whom the Nazis would construe as ‘Aryans’. Ius sanguinis is ethnicity-blind. In fact, when young Israelis nowadays claim German citizenship with reference to an ancestor who fled from Germany, they also do so iure sanguinis. I would find it hard to interpret this as an objectionable völkisch practice. This example shows that the problem is not with ius sanguinis itself, but with the respective contexts in which it is embedded. 4 5 Hogwood, P. (2000), ‘Citizenship Controversies in Germany: the twin legacy of Völkisch nationalism and the Alleinvertretungsanspruch’, German Politics 9 (3): 125–144, here 127, 132–133. Gosewinkel, D. (2001), Einbürgern und Ausschließen: Die Nationalisierung der Staatsangehörigkeit vom Deutschen Bund bis zur Bundesrepublik Deutschland [Naturalising and Excluding: Nationalisation of Citizenship from the German Confederation to the Federal Republic of Germany]. Göttingen: Vandenhoeck & Rupprecht, 327.