Abstract
The article considers what arbitrary law-making is and what may count as arbitrary law-making in the field of migration policy. It contributes to the discussion of arbitrary law-making in relation to migration policy in two ways. First, it offers an analysis of arbitrariness, pointing out that rhetorical definitions abound – perhaps not surprisingly, given that migration is a highly-contested policy area – and argues for why transposing a conception developed in ethical theory to the law has high theoretical costs. An alternative conception is described and found to be better equipped to deal with arbitrary law-making in migration policy. It is argued that if we want to understand how arbitrariness plays out in the field of migration law – which is necessary to find ways to hinder its spread by the adoption of specific law-making practices – we first need to distinguish arbitrariness from legitimate choices of legislators. Secondly, a typology of forms of arbitrariness is fleshed out in relation to contemporary migration policy. The policy area is here broadly construed to include not only naturalisation processes, but also migration, asylum and refugee policies and more generally border control. The examples are taken from a broad selection of countries. They have been chosen for illustrative purposes only. Keywords: arbitrariness, discretion, arbitrary power, forms of arbitrary power, borders, migration policy, citizenship policy
Highlights
Miserable is the slavery of that people among whom the law is either unsettled or unknown
While plenty of legal theorists engage with constitutional law, EU law, international law, WTO law, HR law and more, few legal and practical philosophers engage with migration law – an area of law that has until quite recently been marked by low status even among black-letter lawyers, notwithstanding its connection to the very lucrative area of international private law
What does arbitrariness mean in this context? What counts as arbitrary law-making when we are discussing migration policy? What distinguishes discretion from arbitrary rule in this context? And foremost, by virtue of what may we call out a practice or a norm as being arbitrary without giving expression to personal predilections?
Summary
Arbitrariness is detrimental to the legitimacy of any rule in a deep and decisive way. The state of our current knowledge about arbitrary law-making is regrettable in reference to law and legal theory, and in terms of practical philosophy and applied ethics It is well-known that migration provides an opportunity to recast the opposition between universalism and particularism: Debates on open vs closed borders (Carens 1987; Bauböck 1994), on global justice (Jones 2001; Juss 2006) and other topics have brought this contrast to the fore, starting with Walzer’s Spheres of Justice (1983) that inaugurated a prolific string of studies on the distribution of goods within systems with open borders. Attention is directed to provisions relating to asylum law
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