Tainted Law? Why History Cannot provide the Justification for Abandoning Ius Sanguinis

Abstract

Costica Dumbrava rejects ius sanguinis as 1) historically tainted, 2) increasingly inadequate and 3) normatively unnecessary. In my response, I mainly focus on the first, historical dimension. Drawing on examples from the case of Germany, often used as the prime example to show what is wrong with ius sanguinis, I will contest the idea that ius sanguinis as such has been discredited by history. Its supposed taintedness has to do with issues not intrinsic to this principle of transmitting citizenship, namely restrictive admission practices and racially based exclusion. Its use in certain problematic ways and contexts in the past does not mean it necessarily has to be used like that in the future. If complemented by other, inclusionary mechanisms of allocating citizenship in conjunction with increased tolerance for multiple citizenship it certainly remains a useful – and necessary – method of transmitting citizenship in the day and age of multiple transnational migrations.