The social trust argument asserts that a political community cannot survive without social trust, and that social trust cannot be achieved or maintained without a political community having discretionary control over immigration. Various objections have already been raised against this argument, but because those objections all assume various liberal commitments they leave the heart of the social trust argument untouched. This chapter argues that by looking at the socio-historical circumstances of Latino/as in the United States, an inherent weakness of the (...) social trust argument gets exposed. Giving a political community discretionary control over immigration not only fails to deliver on the promise of social trust, but it actually seems to promote its opposite, social mistrust. This suggests that a far better way of promoting the goal of social trust, and at the same time abating social mistrust, is to actually circumvent a political community’s ability to control immigration by giving priority both to socio-historical circumstances and immigrant rights (at least in a minimalist sense) in determining immigration policy. (shrink)

This essay explores the intersection of racism, racial embodiment theory and the recent hostility aimed at immigrants and foreigners in the United States, especially the targeting of people of Latin American descent and Latino/as. Anti-immigrant and anti-foreigner sentiment is racist. It is the embodiment of racial privilege for those who wield it and the materiality of racial difference for those it is used against. This manifestation of racial privilege and difference rests upon a redrawing of the color line that is (...) meant towards preserving exclusive categories of political membership. The charge of racism, however, is elided by the fact that this hostility takes the form of a specious embracement of law and lawfulness. “Illegal” in this sense not only captures the actions of those who enter the United States through clandestine or informal means, but, in light of the history of immigration and citizen- ship law, the term operates as a racial trope that designates non-white status, thus marginalizing and alienating certain immigrants from ongoing nation-formation processes. I explain the source for anti-immigrant hostility in the United States, which I take to be connected to the longevity of white normativity as the basis for American identity. I then critically assess how the idea of national belonging is crucial to the perpetuation of white-ways-of-being, especially when citizenship has historically been a venue for the embodiment of racial and even colonial privilege. I conclude by posing several questions about the nature of racial identities and racism that suggest new avenues for further research on racial embodiment in a “postracial” era. pp. 65–90. (shrink)

The aim of this paper is to question, from the perspective of a principled theory of criminalization, the legitimacy of making irregular immigration a crime. In order to do this, I identify three main ways in which the political decision to introduce a crime of IM may be defended: according to the first, IM is a malum in se the wrongness of which resides in its being a violation of states’ territorial sovereignty; according to the second, IM is a justified (...) malum prohibitum the wrongness of which resides in its being a violation of a justified immigration regulation; according to the third, IM is a malum in se the wrongness of which resides in its harmful consequences for receiving states’ citizens. My thesis is that none of these arguments succeeds in providing us with sufficiently good reasons to justify the use of criminal punishment to enforce the closure of state borders. As regards the first, I argue that it relies on a misleading conception of what is entailed by states’ territorial sovereignty, and that therefore it is unsound as an argument for the state’s right to control immigration. With regard to the second, I argue that, be they legitimate or not, immigration regulations enacted by states cannot provide those would-be immigrants they aim to exclude with content-independent reasons to comply with them; and this is a necessary pre-condition to conclude that IM is a justified malum prohibitum. As regards harm-based approaches, I argue that the notions they rely on are completely unfit as criteria for criminalization. This leads me to the conclusion that, unless other more convincing arguments are provided for, IM should not be criminalized. (shrink)

Many of us take it for granted that states have a right to control the entry and settlement of non‐citizens in their territories, and hardly pause to consider or evaluate the moral justifications for immigration controls. For a long time, very few political philosophers showed a great deal of interest in the subject. However, it is now attracting much more attention in the discipline. This article aims to show that we most certainly should not take it for granted that states (...) enjoy a moral right to exclude would‐be immigrants. It is neither obvious nor uncontroversial. And if we cannot find adequate justifications for the existence of such a right, then we need to re‐evaluate the very backbone of current approaches to immigration policy. The paper begins with an overview of the existing academic debate about the extent of the right to freedom of movement. Next it introduces three arguments in support of the state’s right to exclude would‐be immigrants which draw on claims about the collective right to self‐determination. Finally it outlines three important challenges faced by these arguments in support of the state’s right to exclude. (shrink)

This study is devoted to the ways and means to justify a ‘more’ cosmopolitan realization of certain policy implications, in the case of immigration. The raison d’être of this study is the idea that the contemporary debate over open borders suffers from indeterminate discussions on whether liberal states are entitled to restrict immigration. On the other hand, most of the liberal cosmopolitan accounts neglect the detrimental consequences of their open borders argument – which take it as a means to compensate (...) people in need –, such as brain drain and the effects of brain drain on the opportunity sets of members of sending countries. Therefore I offer a moral cosmopolitan account of immigration which takes the interests of would-be immigrants, the residents in receiving, along with the residents in sending countries in respect to their opportunity sets because of the way arbitrary border control represents the inequality of opportunity. I do not provide a well-formed immigration policy here, yet I believe the account provided here is more feasible in considering phenomena such as brain drain. (shrink)

What does social cohesion require in culturally diverse post-immigration societies? Immigration and social cohesion are, in the public debate, believed to be incompatible. In normative political philosophy, a similar understanding manifests in the argument that social cohesion-based on a common national identity-is incompatible with immigration. In so doing, its proponents justify restrictive border policies. In this chapter, I will critically engage with this argument by reconnecting the literature in social sciences to normative political philosophy. I will offer a conditional and (...) pro tanto argument that social cohesion in post-immigration societies justifies open and non-discriminatory border policies. My argument is conditional in two senses: first, it assumes social cohesion is based on a common identity, and second, it only applies to the societies with significant cultural, religious, and ethnic diversity that can be best described as post-immigration societies. My argument implies that liberal nationalists have a choice: they can either keep defending social cohesion in the traditional way, which comes with open borders; or they can abandon this view, thereby losing one of the strongest justifications for restrictive borders. (shrink)

Supporters of open borders sometimes argue that the state has no pro tanto right to restrict immigration, because such a right would also entail a right to exclude existing citizens for whatever reasons justify excluding immigrants. These arguments can be defeated by suggesting that people have a right to stay put. I present a new form of the exclusion argument against closed borders which escapes this “right to stay put” reply. I do this by describing a kind of exclusion that (...) has not been discussed in depth, which I call “territorial exclusion.” Territorial exclusion is the process according to which the group that wishes to exclude current citizens secedes from the territory in which those citizens reside. I argue that the wrongness of territorial exclusion explains why there is no pro tanto right for a state to exclude immigrants, because otherwise there would be a pro tanto right for the state to kick people out by seceding from the territory they inhabit. Because kicking people out like this is typically wrong, borders cannot be closed. (shrink)

International migration is increasing not only in absolute terms but also as a percentage of the global population. In 2019, international migrants made up 3.5 per cent of the global population, compared to 2.8 per cent in the year 2000. Over the past two decades, a philosophical literature has emerged to investigate what justice requires with respect to these vast migrant flows. My article criticizes much of this philosophical work. Building on the work of Charles Mills (2015), I argue that (...) the terms in which many Anglo-American philosophers presently debate migration justice neglect and even obscure consideration of the ways in which current migration flows may be shaped by Euro-American colonialism and neo-colonialism. Such exclusions produce systematic biases in much of our philosophical literature. To develop less biased understandings of migration justice, I propose that Anglo-American philosophers should revise our methods and our conceptual frameworks to enable exploring the possible extent and ethical implications of colonial and neo-colonial influence. This is one part of the much larger task of decolonizing our political philosophy. (shrink)

Cet article est la traduction française de l’introduction du livre d’Ayelet Shachar, «The Puzzle of Birthright Citizenship», avec la permission de l’éditeur, tirée de The Birthright Lottery : Citizenship and Global Inequality, Cambridge, Mass.: Harvard University Press, pp.1-18. © 2009 President and Fellows of Harvard College. Traduction de Martin Provencher.This paper is the French translation of Ayelet Shachar’s introduction, «The Puzzle of Birthright Citizenship», digitally reproduced by permission of the publisher from The Birthright Lottery : Citizenship and Global Inequality, Cambridge, (...) Mass.: Harvard University Press, pp.1-18. © 2009 by the President and Fellows of Harvard College. Translation by Martin Provencher. (shrink)

In this chapter, I bring non-ideal theory to bear on the ethics of immigration. In particular, I explore what the obligations of liberal states would be if they were to attempt to implement migration arrangements that conform to liberal-cosmopolitan principles. I argue that some of the obligations states have are feasibility-insensitive, while some are feasibility-sensitive. I show that such obligations can have as their content both the inclusion and exclusion of prospective immigrants, and that they can be grounded in the (...) requirements of liberal justice, mere capacity to assist, as well as past or foreseeable contribution to harm. The chapter therefore explores the possibility of an international migration regime that takes human rights seriously whilst avoiding the twin pitfalls of strict immigration restrictions and the complete liberalization of immigration. (shrink)

This symposium brings into conversation normative political theory on migration and critical border/migration studies, with a particular focus on digital border control technology. Normative theorists have long been concerned with questions about the extent and nature of control over migration that the state should exercise, and the balance of rights and duties between states and migrants. To date, however, there has been little reflection among such theorists on digital border control technology. Critical border/migration studies scholars, on the other hand, have (...) paid considerable attention to the rapid development of digital technology in the border control/mobility management space, and revealed a range of problems with the technology itself and the ways it is deployed. What has thus far been lacking, however, is sustained ethical reflection on what should be done about the use of this technology. The papers in this symposium thus seek to bring these two groups of scholars together and to prompt what we hope will be a sustained conversation on these rapidly evolving and deeply problematic practices. This introduction contextualises the issue at the heart of this symposium – the rapid expansion of digital border controls and the ethical challenges that these pose – and offers brief summaries of the contributions. (shrink)

Are democratic states permitted to denationalize citizens, in particular those whom they believe pose dangers to the physical safety of others? In this article, I argue that they are not. The power to denationalize citizens—that is, to revoke citizenship—is one that many states have historically claimed for themselves, but which has largely been in disuse in the last several decades. Recent terrorist events have, however, prompted scholars and political actors to reconsider the role that denationalization can and perhaps should play (...) in democratic states, in particular with respect to its role in protecting national security and in supporting the global fight against terror more generally. In this article, my objective is to show that denationalization laws have no place in democratic states. To understand why, I propose examining the foundations of the right of citizenship, which lie, I shall argue, in the very strong interests that individuals have in security of residence. I use this formulation of the right to respond to two broad clusters of arguments: (1) those that claim that it is justifiable to denationalize citizens who threaten to undermine the safety of citizens in a democratic state or the ability of a democratic state to function as a democratic state, and (2) those that claim that it is justifiable to denationalize dual citizens because they possess citizenship status in a second country that is also able to protect their rights. (shrink)

Can a liberal state exclude illiberal immigrants in order to preserve its liberal status? Hrishikesh Joshi has argued that liberalism cannot require a commitment to open borders because this would entail that liberalism is committed to its own demise in circumstances in which many illiberal immigrants aim to immigrate into a liberal society. I argue that liberalism is committed to its own demise in certain circumstances, but that this is not as bad as it may appear. Liberalism’s commitment to its (...) own demise is merely a reflection of the fact that it must take into account the rights of outsiders, not just the rights of existing citizens, and of the fact that circumstances of injustice can sometimes leave liberal societies with no correct choice. (shrink)

Demands calling for reparations for historical injustices—injustices whose original victims and perpetrators are now dead—constitute an important component of contemporary struggles for social and transnational justice. Reparations are only one way in which the unjust past is salient in contemporary politics. In my book, Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress, I put forward a framework to conceptualise the normative significance of the unjust past. In this article, I will engage with the insightful comments and try (...) to address the concerns of the contributors to the symposium on my book. I will discuss whether and in what sense my framework incorporates past-regarding duties, how it is different from causal interpretations of the relationship between past and present injustice, whether it can carve out a greater place for blame in our thinking about responsibility for structural injustice, whether such a responsibility needs to hinge upon an account of solidarity, and how de-temporalising injustice can cast new light on immigration politics. In particular, I will stress and further clarify the importance that the notion of ‘structural debt’, which my book develops to reflect on historical responsibility, can play in thinking about what is owed to an unjust history. (shrink)

Do states have a right to exclude prospective immigrants as they see fit? According to statists the answer is a qualified yes. For these authors, self-determining political communities have a prima facie right to exclude, which can be overridden by the claims of vulnerable groups such as refugees and children born in the state’s territory. However, there is a concern in the literature that statists have not yet developed a theory that can protect children born in the territory from being (...) excluded from the political community. For if the self-determining political community has the right to decide who should form the self in the first place, then that right should count against both newcomers by immigration and newcomers by birth. Or so the concern goes. In this essay, I defend statism against this line of criticism and provide a liberal justification for the inclusion of children born within the state’s borders. My account leads to some surprising implication for citizenship law, as well as immigration arrangements in the area of asylum and unauthorized immigration. (shrink)

If states have the moral authority to decide their memberships by denying citizenship, I argue that they may also strip citizenship, from law-abiding members, for the same reasons. The only real difference is that when states revoke citizenship they may need to compensate people for their prior contributions, but that is not unlike what frequently occurs in divorce. Once just termination rules are established, stripping citizenship could become, like divorce, an everyday event. Partly because of this implication, we should reject (...) the membership authority of states. (shrink)

Normative political theory over recent decades has focused mainly on what ought to be done as far as migration policies are concerned. It faces a basic challenge, which stems from two competing, yet equally fundamental, ideals underpinning liberal democratic societies: a commitment to moral universalism and the exclusionary requirement of democracy. The objective of this special issue, ‘New Challenges in Immigration Theory’, is to provide a conceptual overview of (some) immigration theories and to highlight the challenges new streams of immigration (...) pose for normative (political) theory and liberal democratic practice. The issue will consider how to reconcile state-based exclusion with a commitment to equal moral concern for all persons, by focusing on the non-standard immigration questions that have so far been ‘neglected’ by normative political theory. In line with this objective, the issue will discuss some of the inadequacies of the dominant political theories of immigration and show how such theories can be expanded to take account of new migration challenges such as brain drain, climate migration, detention of irregular migrants and asylum seekers, rights of labour migrants, transnational networks of movement, and so on. (shrink)

The non-citizen is the new ?other?. From popular discourse to political pronouncements and academic research, the non-citizen has become one of the subjects du jour. Among the ranks of the non-citizen, one finds a lesser-known category of people which has yet to be considered seriously by liberal political theory ? the stateless. Thus far, liberal political theory has either ignored this category of persons or subsumed them under the subjects of immigration or refugeehood. The present article challenges this theoretical exclusion (...) in two ways. First, it analyses the treatment of statelessness within the works of three prominent theorists on just membership ? Michael Walzer, Seyla Benhabib and William Barbieri, Jr ? and contends that these authors ignore the stateless as a unique category of non-citizen. Secondly, it explains why statelessness demands a distinct theoretical framework than is currently provided for within liberal political theory. The article contends that just membership questions necessitate not simply looking at who is let in and what naturalization procedures should be extended to them, but also entails examining who has always been on the inside and to whom we need to justify their continued exclusion. (shrink)

The paper aims to present a critical analysis of the phenomenon and notion of exceptionalism in bioethics. The authors demonstrate that exceptionalism pertains to phenomena that are not (yet) entirely familiar to us and could potentially bear risks regarding their regulation. After an overview of the state of the art, we briefly describe the origins and evolution of the concept, compared to exception and exclusion. In the second step, they look at the overall development debates on genetic exceptionalism, compared to (...) other bioethical debates on exceptionalism, before presenting a detailed analysis of a specific case of early regulation of genetic screening. In the last part, the authors explain the historical background behind the connection between exceptionalism and exclusion in these debates. Their main conclusion is that while the initial stage of the discussion is shaped by the concept of exceptionalism and awareness of risks of exclusion, the later development centers around exceptions that are needed in detailed regulatory procedures. (shrink)

Migration often causes what I refer to in this paper as ‘anti-immigration backlashes’ in receiving countries. Such reactions have substantial costs in terms of the undermining of national solidarity and the diffusion of political distrust. In short, anti-immigration backlashes can threaten the social and political stability of receiving countries. Do such risks constitute a reason against permissive immigration policies which are otherwise desirable? I argue that a positive answer may depend on a skeptical view based on the alleged constraints that (...) certain political facts - especially facts about human nature - pose on political intervention. This view does not stand conceptual and empirical scrutiny in the case of anti-immigration backlashes, where feasibility comes in degree. Yet focusing on the recalcitrance to change of these facts is practically important when devising action plans. This pragmatic core of the skeptical view yields a gradualist and naturalistic way of thinking about constraints in political theorising about migration, and elsewhere. (shrink)

It is normally taken for granted that states have a right to control immigration into their territory. When immigration is raised as a normative issue two questions become salient, one about what the right to exclude is, and one about whether and how it might be justified. This paper considers the first question. The paper starts by noting that standard debates about immigration have not addressed what the right to exclude is. Standard debates about immigration furthermore tend to result either (...) in fairly strong cases for open borders or in denials that considerations of justice apply to immigration at all, which results in state discretion positions. This state of debate is both theoretically unsatisfactory and normatively implausible. The paper therefore explores an alternative approach to the right to exclude immigrants from the perspective of recent debates about the territorial rights of states. The right to exclude claimed by states is analysed and it is shown to differ both conceptually and normatively from rights to impose political authority within a territory. The paper finally indicates how this analysis might broaden the focus of debates about immigration and suggest alternative regimes of migration regulation the possibility of which is obscured by traditional justice approaches. (shrink)

The article considers the changes that have affected European border regimes of migration control as a testcase for discussing arbitrariness. The argument highlights the limited capacity of notions of arbitrariness defined as a departure from the rule of law to capture the ongoing conflict at the borders of Europe and brings, instead, to the foreground the ambivalent meaning of arbitrariness. By comparing Santi Romano’s classical theory of legal pluralism with recent analyses of legal globalization processes, arbitrariness emerges either as an (...) authoritative attempt to impose a different order on society or as a means to contrast acts of resistance to border regimes. In both cases, arbitrariness forcefully blurs the limits between the ordered and unordered, indicating the paradoxical impossibility of excluding the law’s outside from the legal order. On these premises, the article advocates the importance of reframing the demand for open borders as a call for freedom of those who challenge the pragmatic order of migration regimes. Indeed, arbitrariness is necessarily limited when the legal order recognizes, to an extent, the agency and the claims of subjectivities that resist the dichotomy between inclusion and exclusion. Keywords: migration, arbitrariness, borders, legal order. (shrink)

This article examines our moral obligations to refugees and stateless people. I argue that in order to understand our moral obligations to stateless people, both de jure refugees and de facto stateless people, we ought to reconceptualize the harm of statelessness as entailing both a legal/political harm (the loss of citizenship) and an ontological harm, a deprivation of certain fundamental human qualities. To do this, I draw on the work of Hannah Arendt and show that the ontological deprivation has three (...) distinct though interconnected elements: a reduction to the merely human or bare life, a separation from the common realm of humanity and abandonment, and the diminishment of agency or ability to act in the Arendtian sense. If we pull apart the legal/political harm of statelessness from the ontological harm, we are better able to see that we can address some of the features of the ontological deprivation even though we may not be able to rectify the political harm. I conclude this article by discussing some suggestions that follow from a recognition of the reality and harm of the ontological deprivation. (shrink)

I propose a principle of non-domination as a benchmark for assessing the justifiability of unequal residence statuses for non-nationals in liberal democracies. This has advantages over the principles of equality and rights alike, in accommodating both the inclusive and exclusive logics of liberal democratic citizenship. Non-domination requires the state to grant upon first admission a degree of inclusion in the social privileges of citizenship that is sufficient to guard against the most severe forms of domination in social relationships. However, as (...) resident non-nationals become more permanent and come to be in relationships open to other, if less severe forms of domination, it requires gradually increasing the degree of inclusion, over time, to protect non-nationals against these forms of domination also, and, finally, eventually giving them access to the sites of political decision-making that contribute to shaping the background conditions for independent action in social relationships. (shrink)

This article identifies and explores the dilemma of migrant advocacy in advanced industrial democracies, focusing specifically on the contemporary United States. On the one hand, universal norms such as human rights, which are theoretically well suited to advancing migrants' claims, may have little resonance within national settings. On the other hand, the debates around which immigration arguments typically turn, and the terrain on which advocates must fight, derive their values and assumptions from a nation-state framework that is self-limiting. The article (...) analyzes the limits of human rights arguments, discusses the pitfalls of engaging in national policy debates, and details the challenges for advocates of advancing the cause of policy reform and shifting the frame for thinking about migration over the long term. (shrink)

Although foreign workers contribute to the economy and society, their lack of citizenship renders them unequal, vulnerable and exploitable. In this article, I suggest that the citizenship principle of jus domicile can address this aspect of inequality and exploitation experienced by migrant labour. In addition, I argue that the jus domicile principle should be combined with open borders. In making this argument, I draw on a dialectical methodology and a diverse literature on social justice and liberal political theory. The model (...) I am developing is not necessarily for immediate policy implementation but rather presents a vision for a future of free mobility and settlement. (shrink)

Abstract: Michael Walzer and David Miller defend the authority of democratic states to determine who will be allowed entry and membership. In support of this view they have claimed that the domestic solidarity necessary for social justice is threatened by the unregulated influx of outsiders. This empirical thesis proves to be false when applied to the United States, where heavy Latino and Latina immigration is more likely to increase civic solidarity than to diminish it. Seen in this light, the positions (...) of Jürgen Habermas and Carol Gould, giving human rights priority over democratic sovereignty in decisions about membership, cannot be criticized as utopian. Liberal philosophers can also defend open borders as a way to give oppressed peoples representation inside powerful countries where state decisions often threaten access to essential resources and basic freedoms in their home countries. (shrink)

Zusammenfassung: Dieser Beitrag schlägt einen neuen, bewegungsorientierten grenztheoretischen Ansatz vor. Gegen politikphilosophische Konzeptionen, die Grenzen als statisch und unpassierbar fassen, wird unter Verweis auf historische und empirische Studien gezeigt, dass und inwiefern Grenzen dehnbar, fluktuierend und beweglich sind. Auf dieser Grundlage wird im folgenden Abschnitt argumentiert, dass sich dynamische Prozesse der Grenzziehung am angemessensten in Sinne von Zirkulation begreifen lassen: Anstatt Mobilität zu verhindern und stabile Formen von Ein- bzw. Ausschluss zu etablieren, stellen Grenzen Regime sozialer Zirkulation dar, welche Menschen, (...) deren Arbeitskraft und Steuern im Interesse der Schaffung gesellschaftlicher Ordnung und wirtschaftlichen Mehrwerts regulieren. Unter Rückgriff auf Marx’ Konzept der ursprünglichen Akkumulation präsentiere ich anschließend eine Neubeschreibung von Grenzen als beweglichen Instrumenten ökonomischer und sozialer Aneignung – ich bringe dies auf den Begriff „Ausdehnung durch Ausschließung“. Im abschließenden Abschnitt untersuche ich, welche Gestalt „Ausdehnung durch Ausschließung“ unter den Bedingungen von Klimawandel annimmt und inwiefern dabei Bevölkerungsgruppen produziert werden, die in höchstem Maße verletzlich und ausbeutbar sind. (shrink)

Right-wing populist parties often resort to a xenophobic rhetoric which both exploits and fuels existing illiberal anti-immigrant sentiments. Since populist anti-immigrant sentiments are at odds with fundamental liberal values and challenge the implementation of any liberal ethics of migration, this essay argues that states should adopt civic education policies to counter such sentiments and persuade citizens to develop liberal attitudes towards immigrants. Empirical evidence suggests that sentiments may be malleable, and there are already examples of local governments devising or supporting (...) initiatives aimed at dispelling prejudices and promoting positive interactions. It might be objected that a government’s involvement in shaping sentiments and opinions conflicts with liberal democratic states’ commitment to individual autonomy and electoral fairness. However, I argue that civic education policies are not necessarily incompatible with such values and I provide five criteria to identify policies that liberal democratic governments may legitimately adopt to counteract anti-immigrant sentiments. (shrink)

Many studies have highlighted a substantial "bureaucracy domination" in procedures relating to migrants’ access to territory. This form of domination is marked by highly discretionary and arbitrary practices, enacted by the administrative authorities of the state. Only minor attention, however, has been devoted to the arbitrariness of judicial decisions and to the judicial role in general in the numerous proceedings that increasingly affect the path of migrants. This path is the main object of this paper. The study focuses on Italian (...) case law in expulsion and detention proceedings of irregular third country national citizens and asylum seekers and presents qualitative empirical research on decisions issued by the competent national authorities. The results have been analysed using a selection of theoretical tools, all referable to the general concept of the rule of law. The judicial decisions on pre-removal detention proceedings in two case studies are examined: the jurisprudence on detention of irregular migrants, in different offices of the Justice of the Peace in Italy; and the case law on detention of asylum seekers in the Ordinary Tribunal of Rome. The assumption underlying the research is that various conceptions of the rule of law may have different explanatory power when it comes to explaining the empirical results. To verify this hypothesis, the study proposes an overview of the main rule of law doctrines in the Western tradition of political and legal thought and applies the method of historical-conceptual analysis. As a result, the explanatory power of six theoretical models of the rule of law was verified against the data with the view to highlight the virtues and vices of the respective explanatory frameworks. This article reaches a two-fold conclusion. First, as far as the explanatory frameworks are concerned: the results of the two case studies cannot be fully explained by any of the models considered in this study. This fact alone casts doubts on the explanatory power of these theories and calls for further research on judicial decision-making more generally. Secondly, a key finding of the study regarding the notions of discretion and arbitrariness is that the judicial approach which assures the highest protection of rights is also the one that is most easily influenced by arbitrariness. The author argues that this paradox can be easily dissolved by paying attention to the plural dimensions of arbitrariness. If we consider arbitrariness from a legal point of view, i.e. as an illegal decision, it is unsurprising that the authority that most uses its discretionary powers is also the one most at risk of abusing these discretionary powers and hence of exercising arbitrary power. However, if we consider arbitrariness from the point of view of philosophical-political theory, i.e. as a form of domination characterised by the absence of sufficient justification, it is unsurprising that the judicial approach which assures the highest protection of rights is also the one that takes its own role as guarantor of these rights and of the constitutional democratic legal order as such most seriously. This judicial approach thus most often risks exercising its power in criticisable ways, as compared to an authority much more in line with the requirements of law enforcement agencies. Keywords: migration, discretion, justice, arbitrariness, civil rights, Rechtsstaat, expulsion, mixed constitution. (shrink)

‘Framing the Refugee’ looks at the power of representation of liberal political theory with regard to refugees. In the author’s view, legal and political arbitrariness lies in the representing of refugees as lacking agency. His key point is that liberalism fails to conceive of refugees as politically capable actors, and he is thus complicit in the arbitrary neutralisation of their emancipatory potential and participatory powers. This paper emphasises the moral justifiability of that state of affairs by seeking some answers to (...) the question of why liberal political theory construes a concept of the refugee that does not contain any element of political agency. Most obviously, the author acknowledges that refugees perform a significant social role in contemporary societies and are hence active members in them. Nonetheless, they remain neglected in their political role by most political theory. What does it mean to have political agency for the author? It means to have the power of self-representation, that is, of being allowed and even enabled by a given legal system to bring about change in the political order, or at least to participate in that change. But the author also calls attention to the role of ‘theory’ in addressing this downside of the contemporary liberal democratic order. Theory becomes even more crucial at times of urgency, that is, when theorists have a moral responsibility to deepen their philosophical imagination, as Hannah Arendt so forcefully noted. The theoretical task of ‘re-framing’ the refugee entails reconfiguring political philosophy and its traditional categories of sovereignty, citizenship and nationality. The liberal inability to accommodate the political agency of many members of the political community – especially of non-nationals – is a sign of the historical contingency of the current rules of political membership. This inability makes evident the imperative of rethinking politics in ways that avoid the arbitrariness of treatment and aim instead at equality and justice. If political leaders can re-write the rules of membership to suit their own ideological agendas, the same demand should be addressed by – indeed demanded from – political and legal theorists. However, this is not as easy as it seems, according to the author. In his view, political theory is confronted with fundamental challenges, the most obvious one being that ‘theory’ is usually unequipped to defeat its own ‘topology’. Note that in saying this the author is raising a more pressing concern about arbitrary law-making: it may be that arbitrariness – especially the arbitrary treatment of aliens by the sovereign state and by liberal democracies in particular – is inscribed in the very DNA of liberalism. No matter how odd this may seem, the author advances the view that ideas, however creative of a new order, or transformative of a given status quo, never appear in "free form", and are instead deeply rooted in a structure that constrains our imagination. The challenge is thus to develop a meta-theory that reconceptualises the very way liberal political theory frames marginalised sectors of society – such as the "poor" – as a product of an international economic order that robs those sectors of their agency as the very condition of its internal functioning. We must therefore question how the very idea of the refugee is produced, because it symbolises the construction of an inside and an outside that is complicit with the arbitrary play of legal statuses involved in migration policy. The author’s main point regarding this is that certain groups are sidelined by economic, political and social systems because they are already excluded from theoretical systems to start with. Keywords: refugees, agency, political theory, migration. (shrink)

This paper focuses on the relevance of borders and national membership as barriers to first admission. Strengths and weaknesses of the different liberal arguments for open and restricted borders will be analysed, focusing on the ‘liberal paradox’ which holds that an asymmetrical view on entry and exit is compatible with the liberal commitment to equality and individual liberties. Finally, a proposal will be formulated in order to find a middle way between the idealism of open borders and more realist versions (...) of liberal egalitarianism by incorporating a hermeneutical account of human morality as a relational, contextual matter which does not think in terms of borders but instead of trans-boundary dialogical spaces. (shrink)

Recent critiques of normative universalism have helped entrench a dichotomy between formalist universal egalitarian claims (typical of the liberal tradition) and particularist attention to cultural difference (in contemporary communitarianism, and in more or less postmodernist approaches). Focusing on the work of Richard Rorty and Iris Marion Young, this article explores whether, and how, we might find space for a universalism which avoids problems encountered by the formalist model. I argue that, while both Rorty and Young reject ‘Enlightenment’ universalism, the approaches (...) of both contain covert universalist assumptions. They thus represent different forms of ‘soft’ universalism: approaches which are fallibilist about current moral knowledge but which hold out the possibility of genuinely inclusive pan‐human normative frameworks. The trouble with both is that neither, in the end, provides a persuasive basis for their own position – one which avoids an ultimate arbitrariness about the winning out of one normative conception (be it humanitarian or not) over another. I suggest that recourse to ontology, and the kinds of metaphysical claim deemed outmoded in the mainstream of social and moral philosophy, provide such a basis. I argue too that a conception of human being as relational, and of the flourishing of the individual as requiring relations with others, is the best‐placed candidate to do the work required. (shrink)

This article argues that all-affected principle needs to be reconceptualized to account for the differences in the historical and current social position of those who are or who should be making legitimacy claims. Drawing on Butler’s theory of vulnerability, this article advances a new and more robust all-affected principle that affords a stronger claim to legitimacy to those most-deeply affected by both the current decision in question and the historical process and practices shaping the choices available. In particular, this article (...) identifies three sets of exclusions of groups and claims that drive this reformulation: first, cases of historical injustice such as indigenous peoples; second, cases of current processes of minoritization which silence or render some groups and opinions as marginal such as women, ethnic minorities or even people in lower economic classes; and third, cases of state establishment of boundaries and ‘worthy’ citizenship such as refugees making claims for relocation and asylum. (shrink)

Indigenous Peoples, Consent and Benefit Sharing is the first in-depth account of the Hoodia bioprospecting case and use of San traditional knowledge, placing it in the global context of indigenous peoples’ rights, consent and benefit-sharing. It is unique as the first interdisciplinary analysis of consent and benefit sharing in which philosophers apply their minds to questions of justice in the Convention on Biological Diversity (CBD), lawyers interrogate the use of intellectual property rights to protect traditional knowledge, environmental scientists analyse implications (...) for national policies, anthropologists grapple with the commodification of knowledge and, uniquely, case experts from Asia, Australia and North America bring their collective expertise and experiences to bear on the San-Hoodia case. -/- While much of the focus is on bioprospecting and natural product development, Indigenous Peoples, Consent and Benefit-Sharing also draws important lessons about informed consent and benefit-sharing from the health sciences and sectors such as mining. Policymakers around the world are under significant pressure to resolve the challenges of implementing the CBD. This book’s analysis and recommendations will help them. -/- ‘It is good to see philosophers engaging with the UN Convention on Biological Diversity, and doing so by looking in depth at a real situation in which it has been invoked.’ Peter Singer, Ira W. DeCamp Professor of Bioethics in the University Center for Human Values, Princeton University . (shrink)

A body of work has emerged in political philosophy which can be termed ‘the ethics of migration’. Within that literature, there has been an increased focus on issues of displacement and protection...

This paper explores the implications of empirical theories of migration for normative accounts of migration and distributive justice. It examines neo-classical economics, world-systems theory, dual labor market theory, and feminist approaches to migration and contends that neo-classical economic theory in isolation provides an inadequate understanding of migration. Other theories provide a fuller account of how national and global economic, political, and social institutions cause and shape migration flows by actively affecting people's opportunity sets in source countries and by admitting people (...) according to social categories such as class and gender. These empirical theories reveal the causal impact of institutions regulating migration and clarify moral obligations frequently overlooked by normative theorists. (shrink)

The UK government has recently taken steps to exclude certain groups of migrants from free treatment under the National Health Service, most controversially from treatment for HIV. Whether this discrimination can have any coherent ethical basis is questioned in this paper. The exclusion of migrants of any status from any welfare system cannot be ethically justified because the distinction between citizens and migrants cannot be an ethical one.

Practically almost all the basic matters that make up the political and social agenda of this decade are related to two basic categories: citizenship and multiculturalism. The way in which the connection between these two basic pillars is managed constitutes the principal factor in the social, political and cultural transformation of our epoch. This work has two aims: on one hand, and in relation to the general subject of this monograph it is argued that the question of immigration is part (...) of a wider dynamic of discussions on the basic foundations of our modern era, resulting from the double process of State-building and Nation-building; on the other hand it underlines that the first victim of this process of contextual change is precisly the product of this double historical movement: the traditional notion of citizenship, which has difficulties in finding resources to administer the new phenomena tied to multiculturalism. In this framework, we propose the basic question: in what sense does multiculturalism pose problems to the tradition of citizenship? We start from the following situation: what happens when the traditional notion of citizenship is used in multicultural contexts? I structure my argumentation in five sections. In the first section, I set out the conceptual framework within which present-day arguments are situated, composed of three basic elements: the State, the Nation and Citizenship. In the second section, we enter into the discussion on the traditional concept of citizenship, focusing on its normative and empirical basis from a comparative perspective. In the third section, we are concerned with the concept of multiculturalism. In the fourth section I deal with what I have called the contexts of multiculturalism., that is, the different dimensions that call into question the indivisible (and sacred) character of the State, the Nation and Citizenship. We introduce, in succesion, the pluralism of cultural identities, the pluralism of national identities, immigration, the political construction of the European Union and, finally globalisation. In the fifth and last section we draw up a final balance giving a historical sense to our arguments. (shrink)

This article examines Swedish, Danish and Norwegian governments’ participation in the European Return Platform for Unaccompanied Minors project and its failed attempts to deport unaccompanied minors to Afghanistan. It argues that ERPUM is an interesting and urgent case of a “deportation corridor”, and suggests that this framework can benefit from analysis through normative and applied ethics and in particular discussions of feasibility constraints. It therefore identifies and critically assesses two nationalistic arguments for deportation common in Nordic politics, based on appeals (...) credibility and humanitarianism. Considering the growth of nationalistic immigration policies in Nordic states, the article turns the usual discussions of feasibility on its head by showing that not only cosmopolitan, but also nationalistic ethics must face up to charges of lacking realism. More specifically, it argues that the case of ERPUM illustrates how nationalistic deportation ethics can rely on inconsistent normative and erroneous empirical assumptions, which can be criticized for their arbitrariness, ideological grounding and lacking feasibility. (shrink)