On the Right of Exclusion: Law, Ethics and Immigration Policy addresses Western immigration policies regarding so-called `normal migrants i.e. migrants without a legal right to admission. The book argues that if authorities cannot substantially justify the exclusion of a normal migrant, the latter should be admitted. By contrast, today authorities still believe they may deny normal migrants admission to the territory without giving them proper justification. Bas Schotel challenges this state of affairs and calls for a reversal of the default position in admission laws. The justification should, he argues, involve a serious accounting for the interests and reasons applicable to the normal migrant seeking admission. Furthermore, the first burden of justification should lie with the authorities. To build this case, the book makes three types of argument: legal, ethical and institutional. The legal argument shows that there are no grounds in either sovereignty or the structure of law for current admission practices. Whilst this legal argument accounts for a duty to justify exclusion, the ethical argument shows why the authorities should carry the first burden of justification. Finally, the institutional argument explores how this new position might be implemented. An original, yet practical, undermining of the logic that underlies current immigration laws, On the Right of Exclusion: Law, Ethics and Immigration Policy will be essential reading for those with intellectual, political and policy interests in this area.
Author(s): Bas Schotel
Edition: 1
Publisher: Routledge
Year: 2012
Language: English
Pages: 227
City: Abingdon, Oxon
Tags: ethics, morality, immigration, politics, migrant, law, justification, sovereignty, admission, exclusion, property, borders, rights, interests, pluralism
Front Cover
On the Right of Exclusion
Copyright Page
Contents
Acknowledgements
Introduction
1. A legal problem: exclusion without justification
Policies, authorities and migrants
Exclusion
Justification
Searching for justification
How the law justifies exclusion without justification
2. Exclusion and standard prerogatives of sovereignty
Territorial integrity and jus excludendi alios
Property theory
State liberty
Outdated and incoherent
Conclusion
3. The exclusion thesis
Jus includendi et excludendi according to Hans Lindahl
Legal order and borders
‘De facto’ nature of the first borders and the right to exclude
Exclusion as legal interpretation: legal, illegal and a-legal
Exclusion as inevitable omnipresent violence
Re-presenting the inside and outside
Immigrant as state of exception and bare life. Agamben and the exclusion thesis
Bare life and the state of exception as‘undecidability’
Exclusion thesis and the immigrant as ‘homo sacer’
No justification. Just ‘an open space of pure human praxis’
Carl Schmitt and the exclusion thesis
‘Hegung des Krieges’ and law as concrete order
Jus publicum Europeanum: Sovereign Power and ‘Justus Hostis’ in Europe
The end of the European Nomos
The restoration of the Nomos: state of exception
Hegung des Krieges and the exclusion thesis
Recapitulating the central tenets of the exclusion thesis
4. Orders without borders: refuting the exclusion thesis
Order without land and taking
Inclusion does not imply exclusion
‘Here’ and ‘there’
‘Us’ and ‘them’
Exclusion and distribution
Exclusion and corrective justice
‘In’ and ‘ex’
Order as connections: orders without borders
The deeper problem: law as unity
Alternative: open system and connections
Law between real and ideal
Law as passage and connections
Orders without borders
5. Inclusion for the sake of exclusion: the authority of immigration laws
Preliminary remarks on the use of Raz’ authority thesis
The authority of law: an extended reading of Joseph Raz’ authority thesis
Having and claiming authority
Authority is a matter of degree
Absence of CLA , de facto authority, existence of law and legal validity
Relative legal validity
Recapitulating central tenets extended authority thesis
The authority of admission laws
Reform or relative legal invalidity
6. The first burden of justification
Ethics of migration and fixing a new default position
Admission, free movement and liberalism
Shifting the burden of justification
Moral and communitarian objections to admission
Counter-arguments from minimal morality and contextual pluralism
Immigration restrictions do not build a community
Prudential and realistic arguments against general admission
Conclusion
7. Institutional proposal: testing the proportionality of exclusion
Central tenets of the Draft
Inadequacy of the Draft’s legal basis
Procedural rights instead of a material right to admission
Procedural rights only triggered when material rights are at stake
Liberty to move for everyone
Alternative legal basis: extending the proportionality principle to legitimate interests
Ratio ‘legis’ of the proportionality principle in Europe
Interpretational issues
Scope of proportionality test
Scope of judicial review
Legal status of migrants after annulment of exclusion decision
Proportionality principle versus right to move: what’s in a name
Annexes
Bibliography
Author index
