Colonialism and the “Right to Exclude”

Abstract

A discussion of the state's “right to exclude” requires that we have at our disposal unambiguous understandings of what constitutes the state, who constitute its subjects/citizens, and who constitute aliens.1 This, however, is not the case. In fact, the reverse is more true: particular notions of the state, of subjects/citizens, and of aliens are the outcome of (among other things) practices of migration regulation. This essay interrogates two understandings of the state that characterize much scholarship on migration, including legal scholarship. First, the assumption of the salience of state borders, of citizens/subjects, and of aliens understood in national terms; second, the assumption—often condensed in invocations of the Westphalian state—that the authority to control migration across these putative borders is a longstanding and non-contentious element of state sovereignty. In such approaches, the state is simply there. It matters little what prefix—national, colonial, imperial, modern, and so forth—we affix to it. Such views are premised on the notion that the practices of governance and the institutions of the state have a fidelity to, can be deduced from, and simply reflect a set of principles. In my view, rather than understand the state as merely translating a set of principles into practice, we are better served by focusing on practices to examine how they interpret and remake principles in particular historical conjunctures.