What happens to the concept of security if legal disorder manifests itself not only as illegal behavior but also as alegal behavior—acts that challenge the very distinction between legality and illegality, as drawn by a political community? Focusing on European immigration policy, this paper examines how the distinction between illegal and alegal acts critically illuminates the relation between collective (in)security and the concept of legal (dis)order. It concludes by arguing that this distinction sheds new light on the systematic relation—and tension—between (...) security, freedom, and justice. (shrink)

In the Social Contract Rousseau gives what could be called a philosophical rule of recognition for law in Modernity: a law is law if and only if 'the whole people rules over the whole people'. Thus, he defines self-legislation as, at bottom, collective intentional action. I will first map out the speech act structure [LEX] underlying self-legislation on this account. In particular, I argue for a first person plural counterpart of the reflexive structure inherent to intentions generally: the notion of (...) a collective self. Then I take issue with Bratman's analysis of shared intentional activity in terms of mutuality, submitting that it misses out on the specifically political presupposition involved in 'doing something together'. I will show why 'mutuality' requires representation of the unity of a polity, and how this representation can take form without either external authority or mutual responsiveness. (shrink)

Many poor and oppressed people wish to leave their countries of origin in the third world to come to affluent Western societies. This essay argues that there is little justification for keeping them out. The essay draws on three contemporary approaches to political theory - the Rawlsian,the Nozickean, and the utilitarian - to construct arguments for open borders. The fact that all three theories converge upon the same results on this issue, despite their significant disagreements on others, strengthens the case (...) for open borders and reveals its roots in our deep commitment to respect all human beings as free and equal moral persons. The final part of the essay considers communitarian objections to this conclusion, especially those of Michael Walzer. (shrink)

Appealing to the original meaning of the Greek term nomos, Hannah Arendt claims that a bounded legal space is constitutive for political community. Can this seemingly anachronistic claim be substantiated in the conceptually strong sense that every polity - the Greek city-state as much as a hypothetical world state - must constitute itself as a nomos? It is argued that whereas Arendt falls short of justifying this claim, a reflexive reading of nomos can do the trick: the space of political (...) community is necessarily bounded because no polity is imaginable that does not raise a claim to an inside as the community’s own space. A world state, were it ever to be founded, would globalize nomos, not suppress it. Whence the political problem: how does a polity deal with its outside? This problem is particularly pressing because Carl Schmitt’s defense of nomos radically challenges Arendt’s position. A reinterpretation of her analyses of the foundation of a political community suggests how the representational structure of a politics of boundaries parries Schmitt’s challenge. (shrink)

In my book, The Rights of Others, I developed a discourse-theoretic approach to questions of political membership in liberal democracies, which include practices of citizenship, as well as of immigration, refuge and asylum. This article revisits five issues in response to various criticisms. How can we justify democratic exclusions? Is there a `right to membership' and how can it be reconciled with the different practices of various constitutional democracies? Is there a distinction between normatively acceptable and normatively problematic restrictions on (...) political membership? Does the concept of `democratic iterations' describe normative or empirical processes? How plausible is the binarism of the national and the global? I argue that democratic exclusions can be justified by not discriminating against would-be citizens and immigrants on the basis of ascriptive criteria. Ascriptive characteristics, like one's sex and skin colour, are not the product of one's voluntary doings. Democratic iterations are empirical processes which can be judged in the light of normative criteria deriving from discourse theory. Furthermore, while the binarism of national and global is problematical, alternative configurations of political membership at the present are not more defensible. (shrink)