Disenfranchisement As Arbitrary Law-making in Today’s
Citizenship and Border Control Policies
Abstract
Disenfranchisement, i.e. being legally barred from exercising political rights, is seldom discussed in relation to citizenship, naturalisation and border control policies. This paper takes up the challenge. The focus is on today’s arguably most critical form of disenfranchisement, that of non-nationals, and the exercise of arbitrary power that it embodies. The appearance of disenfranchised masses in contemporary democracies questions the state’s sovereign right to define its people in terms of citizenship policy. We develop a typology of forms of arbitrariness that is applied specifically to citizenship policies and border control techniques. The aim is to offer a clarifying differentiation among forms of abuse and explain why this is an issue of great weight for the problem of political legitimacy in constitutional democracies. This is paramount to developing modes of reducing the arbitrary rule of public officials in migration and citizenship related issues.
Keywords: Citizenship Policies – Arbitrary Power – Migration – Asylum – Reasonableness of the Law
1. Introduction
Disenfranchisement, i.e. being legally barred from exercising political rights, has many faces – ranging from Third Country Nationals in the EU to Brazilian illiterates, from mentally disabled people in Eastern Europe to inmates in Asia. The focus is here on today’s arguably most critical form of disenfranchisement, that of non-nationals and the exercise of arbitrary power that it embodies. In a world with over 9 million refugees and 5.5 million internally displaced people, not to mention other forms of migration, the crucial role of defining the “demos” in terms of citizenship policy can no longer be downplayed. The appearance of disenfranchised masses in contemporary democracies questions the state’s sovereign right to define its people and challenges a key tenet of democratic theory, namely the principle of affectedness.
Here, citizenship and migration policies are viewed from the perspective of disenfranchisement. Our starting point is that in a world of great migrations (transnational or otherwise) the authority to define the “people” in terms of citizenship and migration policy offers a good opportunity to shed light on the very notion of arbitrariness: it is essentially about the “sovereign power to exclude.”1 And the use of
this power to exclude defines the constitutional identity of a political regime. The basic claim is that by making the route to enfranchisement longer the level of illegitimate use of power increases. In other words, state power and coercion becomes all the more arbitrary as the chain of obstacles to living under a rule to which one has given one’s consent becomes longer.
We develop a typology of forms of arbitrariness that is applied specifically to the analysis of citizenship policies and border control techniques, by distinguishing between (a) illegal practices, (b) irrational policies and (c) discriminatory statuses. The aim is to offer a clarifying differentiation among forms of abuse and explain why this is an issue of great weight for the problem of political legitimacy in constitutional democracies.
2. Disenfranchisement of Non-nationals: A Test Case For Arbitrary Law-making Enfranchisement sets the level of autonomy that the legal order recognizes for fully performing adult agents in most liberal democratic accounts and thus it is often seen as the source of legitimate power, i.e. what grounds consent and makes state coercion not merely an exercise of the monopoly of the use of force. In other words, enfranchisement is seen as a benchmark of legitimacy. Actually, it does more than that: It says something about the constitutional identity of a political regime. Since Aristotle, the number of rulers counts as criteria for defining the nature of a polity. We take franchise to be essential to substantiate legitimacy in constitutional democracies. This assumption, however, does not exclude the fact that regimes need to fulfil many further conditions to fit the constitutional democracy label. We do not wish to enter the vexata quaestio of how different types of right are nested so as to avoid the chicken-and-egg issue of what rights have priority (is voting more or less important than schooling or access to justice etc?), an issue that has opposed liberals and democrats in the past and still opposes legal and political constitutionalists today.2
The reason why we do not address this issue is because it is subsequent and consequential to the one we are focusing on.
Conversely, disenfranchisement constitutes the thorn in the side of liberal democratic legitimacy. The denizenship of the politically powerless is particularly bothersome because liberal-democratic systems lack incentives to promote their rights. This turns their disenfranchisement into a particular form of arbitrary rule exercised by the enfranchised majority. Within the words of Michael Walzer, “the rule of citizens over non-citizens, of members over strangers, is probably the most common form of tyranny in human history.”3
This is the reason why it offers an interesting testing ground for assessing the level, type and nature of the arbitrary power exercised by the state. In searching for the best possible testing ground for looking at arbitrary power practices in today’s law and policy-making, one specific form of disenfranchisement practice can be singled out as particularly relevant and interesting: the disenfranchisement of non-nationals. This depends on the kind of argumentative strategy that is used to sustain it.
Clearly, disenfranchisement has many faces, including children, illiterates, convicts and mentally disabled people. No wonder then that the strategies of argumentation or reason-giving in favour of disenfranchisement practices vary. Among them we find claims of self-government by autonomous ethnic communities, used to exclude indigenous people in Canada from exercising political rights until the federal elections in 1960, and blacks in South Africa until the 1994 general election.4
The disenfranchisement of citizens affected by mental disabilities in several countries of Central and Eastern Europe has been supported because of the “need to defend the integrity and dignity of elections.”5 The so-called “criminal disenfranchise” or “felony
disenfranchise” has been sustained on the basis of both punitive and regulatory arguments.6 Liberal and contract-theory tools have also been applied to the claim that
criminal disenfranchisement is the logical outcome of the breaking of the social pact perpetuated by offenders who violate the law. This was notoriously stated in Green v.
Board of Elections where the US Supreme Court affirmed this position by quoting
John Locke.7
Notwithstanding great variation in the strategies employed to justify legal provisions of disenfranchisement8, an important threshold can be determined: the
difference lies in whether the disenfranchisement is conceived as a principle of the system or as an exception to the rule. The dialectics between rule and exception that emerge from the argumentative strategies used to exclude people from franchise provide relevant criteria for distinguishing so-called ordinary from extraordinary forms of disenfranchisement.
Now, generally speaking disenfranchisement challenges liberal-democratic regimes since it breaks the (ideal) symmetry between the rulers and the ruled that is often considered a foundation for (democratic) legitimacy. This ideal refers to a fundamental principle of democratic government, i.e. the principle of affectedness, meaning that all those affected by a political decision should have a say in its making and those who are not affected should have no say. Even though the principle seems fairly straightforward, it gives rise to many concerns, both in practice and in theory.9
One of its problematic features is that it is unable to account for the way many non-nationals are disenfranchised.
Indeed, as a default position before the legal order, non-nationals in most commonly recognized liberal-democratic regimes are disenfranchised notwithstanding their presence on state territory. This implies that, even if they happen to hold the legal citizenship or nationality of another state, they still fit into the category of “subjects” with reference to the state they are located in. This means they are passive
are addressed yet are not entitled to take part in their shaping in any form whatsoever. The subject is under a political obligation to obey the laws to which he or she has not given direct or indirect consent. The standard form of such subjecthood is embodied by nationals deprived of enfranchisement.
Moreover, the disenfranchisement of non-nationals is different from other types of disenfranchisement because it is not conceived as an exception, but as the rule. This has important implications for the attribution of the burdens of proof in the event of litigation. Institutions of disenfranchisement are prevailingly justified as an exception to the rule. Archetypically, minors are disenfranchised because they are unable to conscientiously perform the politically salient activities involved in voting and standing in elections due to special circumstances (young age). Standardized classes of people have their rights restricted and these limitations are justified as exceptions to the general rule, granting these rights to those of ordinary capacity.10 Hence,
freedom of movement may be restricted; the right to vote may be withdrawn, etc. but this can legitimately be done only under special circumstances for which the state needs to account. The burden of proof thus falls automatically on the state intending to restrict the exercise of such rights.
A very different argumentative strategy grounds the disenfranchisement of non-nationals. This is due to the fact that the conception of citizenship that underpins the disenfranchisement of non-nationals is not the conception of citizenship that lies behind the exclusion from franchise of other categories of individuals.
In fact, here we should distinguish between the political and the legal conceptions of citizenship.11 The political model that grounds democracy and addresses the
question of legitimacy, opposes the “citizen” to the “subject”, i.e. the disenfranchised and thus passive member of a political community; while the legal conception stresses national sovereignty and protects the rule of law, it opposes “citizen” to “alien,” which is the person deprived of nationality. “Alien” here includes both the foreigner (person lacking the nationality of the state of reference yet having the nationality of another state) and the stateless (person deprived of any nationality). To a great extent, modern law has identified nationality and citizenship (there are various constellations thereof and this identification was made possible under the principle of sovereignty).12
Citizenship, within this conception, is thus merely the positive reflection of the status of alien. In other words, for legal science, citizenship is the status of those who are entitled to claim a series of legally recognized positions before the state. The paradigmatic word for this is Staatsangehörigkeit, which literally means “belonging to the State”.
Whereas for the political conception of citizenship, legitimacy in principle stems from the participation of “the people”, i.e. the sum of the “citizens”, in shaping the common rules under which they live and thus exclusion from such co-participation must be motivated, the legal model of citizenship that is the background theory of citizenship employed in defending disenfranchisement of non-nationals does not say much about justifying disenfranchisement: Voting or standing in elections are usually described as a form of bonus right ascribed to some nationals (natural persons with full legal capacity; in some cases of passive electoral rights, they also need to be over a certain age threshold). The state does not offer motivations and is not held to do so, mainly on the basis of the principle of sovereignty, out of which self-determination of whom to include in the system derives.
Not only does the State offer no reasons, thus enhancing the risks of arbitrariness, but moreover the legal system does not even rule out the possibility of prohibiting
precondition of acquiring the status of citizenship that provides access to enfranchisement. A number of border control techniques, asylum and migration policy provisions have this function.
This possibility engenders what can be described as an indirect form of
disenfranchisement practice that is, however, not understood as such by contemporary
political and legal theory. Indeed, mainstream literature on disenfranchisement13 only
considers provisions relative to either nationals or those non-nationals that are legally resident within the state, thus failing to see how, in the broader context, disenfranchisement is effectively implemented through keeping fully capable adults from being granted access to legal positions (such as residency, permits of stay, asylum etc.) that would enable them to apply for naturalisation at a later stage. Some live large parts of their lives in this disenfranchised limbo, yet within the territorial sphere of states that are generally held to be constitutional democracies.
In other words, as the chain of obstacles towards enfranchisement – granting the prospect to live under a rule to which one has given one’s consent – gets longer, through citizenship and migration policies, the legal order practically defines “the people” over which it rules in a way that poses severe risks of arbitrariness. By referring to territorial sovereignty, the legal conception of citizenship does not endorse the need to motivate exclusion and this increases areas of discretional and/or
arbitrary rule, that impact on the legitimacy of the political system as such.
Moreover, exclusion of non-nationals from franchise in the legal conception of citizenship is traditionally framed as the rule. This rule was historically explained by the extraneousness or exteriority of foreigners, usually located in physically distant places without relations or with few contacts among the autochthon population. Clearly, any such an a priori assumption in a globally interconnected world of mass-migration is unwarranted. On the whole, some 2.9% of the world population live outside their country of origin.
Furthermore, let us suppose that the legal order would cease to uphold non-national disenfranchisement as a rule. Apart from being a political non-starter in many constitutional settlements, this would not eliminate the problem of arbitrariness, even though it might modify its concrete manifestations. Because even if we assume that non-national disenfranchisement has to be justified, just like other forms of disenfranchisement, in terms of derogation from a rule, the size of the issue would still leave lots of room for claiming that non-national disenfranchisement amounts to arbitrary law-making. In fact, derogation in no way modifies the rule as such, as long as it remains an exception. Therefore the quantity of a phenomenon is important in order to understand its quality. As Hegel’s Science of Logic puts it, measure is “a unity of quality and quantity.”14 This implies that if the sheer number of those
disenfranchised is sufficient (there is of course debate over what that threshold should be, but we shall leave the details of that discussion aside) it cannot be claimed that it is a “mere exception” for the same reason that a “state of exception” that lasts sine die amounts to the instauration of a new regime and is not an exception to the previous regime. Here is where numbers matter.
In a world with over 9 million refugees and 5.5 million internally displaced people, the number of disenfranchised persons is vertiginously high and that includes large numbers present in liberal democracies around the world. In most legal systems, enfranchisement is indeed reserved to those nationals that enjoy full legal capacity. There are of course exceptions, both of non-national franchise15 and of external
strengthening trend in many liberal-democratic countries but it is still far from constituting a serious contender to the standard exclusion of non-nationals.
This means that today we face a form of indirect disenfranchisement that is not properly addressed: It does not amount merely to exclusion from voting rights but from the status entailing such rights (i.e. nationality/citizenship) and (in the worst cases) overall exclusion from rights (rightlessness which often follows de facto from being incapable of availing oneself of the protection of one’s country of origin; most recurrently the case of illegal migrants and trafficked people). Such forms of exclusion are challenging the legitimacy of democracy and the rule of law because they prevent a priori any future political representation: While minors will grow up, illiterates can learn how to read, convicts may re-acquire their franchise etc., being barred from access to any legal system in the sense of not being able to avail oneself of the protection of a state entails a form of truly apolitical condition.
This consideration casts light on the fact that today the most critical form of
disenfranchisement is that of non-nationals, and that this is so because of the exercise
of the arbitrary power that lies behind it. There are several reasons for claiming this. The first reason is that, unlike disenfranchising minors, inmates, convicts etc., the disenfranchisement of non-nationals is not presented as an exception to the rule. In the case of disfranchisement of nationals, the provision works like the institution called
capitis deminutio media in Roman law: the situation in which a Roman citizen passed
from the status of full Roman citizenship, civitas optimo iure, to what was called
civitas sine iura suffragii et honorum, i.e. a situation in which the person loses the
entitlement to political rights of participation.17 In the case of the disfranchisement of
non-nationals, however, they are excluded from full political citizenship, which (especially in the case of long-term residents) bluntly mocks the ideal of affectedness.
Secondly, by construing the exclusion of non-nationals as the rule there is a rarely noticed shift in the allocation of the burden of proof from the state to individuals, from the governors to the governed. In this lies the arbitrariness that non-national disenfranchisement embodies. In other words, while it is the state that needs to prove why inmates are to be disenfranchised, it is the individual who is required to provide evidence for his/her lawful presence on the territory that is in practice the first step in order to acquire the status that provides access to franchise.
Saskia Sassen wrote some years ago that, in this realm, the most important distinction today is between those with legal migration status and those without it.18
To further substantiate the claim that quantity matters it is worth pointing out that, although it is hard to measure the number of illegal migrants (because they are illegal), some speak of around 12 million in the US, 14 million in Russia among whom some 700,000 illegal Chinese in the Far East, some 10 million in Eastern Europe including Central Asia, up to a million in the UK, some 150,000 in Italy, some 3 million around the EU, and India with its estimated 16 million illegal immigrants, another 2 million in Thailand, and up to 8 million in South Africa (source BBC). In 2005 the UN estimate was some 50 million illegal migrants out of the overall 190 million migrants around the world.
So even within the category of non-national disenfranchisement one specific group can be singled out as the most vulnerable to arbitrary law-making: that of illegal migrants. This category is not only disenfranchised but prohibited from recognition as disenfranchised. Illegal migrants are thus excluded from franchise in a drastically more severe fashion than legal migrants: legal migrants might be barred from political rights but are not barred from naturalization (even if it might turn out to be extremely cumbersome, e.g. in Switzerland). Illegal migrants are barred from being recognized
as being governed by the legal system in that they are natural persons with full
capacity living under the laws of the country they are in. What the legal system fails
to recognize, in other words, is the factual circumstance that, according to the tenets of legitimacy of the system as such, i.e. according to the political conception of citizenship that grounds the legitimacy of the exercise of coercion by state actors, activates the entitlement to being included in the system. So, by referring to one and the same factual condition (presence on state territory) one group of people gain access and recognition while another is prohibited from accessing the said legal
system. Or to rephrase it, the legal system is blind when it comes to that specific
group.
The point is that, by viewing citizenship and migration policies from the perspective of disenfranchisement, new areas and dimensions of the problem of arbitrary law-making emerge. Right to access national territory is considered in a continuum on the other end of which we find full civic inclusion entailing franchise (civis optimo iure): this is the way the road to living under democratic rule frequently appears for those making the journey, often staring out as illegal migrants yet trying to make their way to full citizenship. In scholarly literature, political participation (e.g. the debate on disenfranchisement and the democratic boundary problem) and access to territory (e.g. the open borders and global justice debates) are usually held apart as two quite different questions, yet keeping the issues separated means not taking into account how reality appears to those migrating to most Western constitutional democracies today. Conversely, if we view border control policies in line with naturalisation and enfranchisement practices, consistently with the perspective of many migrants, then it becomes clear that by making the route to enfranchisement longer the level of illegitimate use of power increases. In a world of great migrations (transnational and otherwise) the crucial role of defining the “demos” in terms of citizenship and migration policy can therefore no longer be downplayed. Acquisition and loss of citizenship does not belong to the legal backwaters of administrative law: it is a question of high constitutional weight since such policies determines, in a mediated way, who are those entitled to participate in collective decision-making. Simply put, the appearance of disenfranchised masses in contemporary democracies – modern metics – questions the state’s sovereign right to define its people19 and a way to start addressing the problem is to look at the arbitrary
exercise of power in this policy field.
3. The Nature and Scope of Arbitrariness and Its Impact on Citizenship Policy In this section the nature and scope of arbitrariness within this policy area is illustrated, so as to stress situations of particular vulnerability for those concerned. The policy area of citizenship is here broadly construed to include not only naturalisation processes, but also asylum and refugee policies and more generally border control. A number of concrete examples of such policies illustrate in which sense we can claim that non-national disenfranchisement magnifies a lack of accountability.
A paradigmatic case of state-exercised discretion is Greece’s technique for avoiding the assessment of requests for naturalisation: The state has unlimited discretion and no obligation to respond to naturalization applications. In other words, “applications can be evaluated for years, and individuals have no means to challenge rejection. The result of this policy of rejection and dissuasion is that despite the fact that there are over one million immigrants working in Greece – corresponding to
roughly 10% of the country’s population – only 15,000 allogenis foreigners have become naturalized Greek citizens over the past 25 years.”20 Exercising discretion in
naturalizing regimes is one problem on the road to arbitrary rule, but “more then any other phenomenon, illegal migration points up to the immense and arbitrary privilege of birth in a prosperous state.”21
Now, a word on the nature of arbitrary rule is needed. “Arbitrary” – from the Latin word arbiter – is an autonomous judgment or a free act. Since the middle ages, the debate on free will has been opposing those who defend the libero arbitrio against supporters of the theory of predestination, i.e. the servo arbitrio; in modern terms a deterministic account of will formation. The very notion of arbitrariness in terms of agency has axiologically positive and/or neutral undertones. However, this radically changes when the term is referred to power: an authority can be said to be arbitrary when it is free to act without considering any limits and constraints. To use Montesquieu’s classical phrasing in Esprit des lois: “It has eternally been observed that any man who has power is led to abuse it; he continues until he finds limits.”22
The conceptual correlation between “arbitrary” and “limited” power helps to distinguish between different meanings of the notion, shedding light on, first of all, the difference between discretion and arbitrariness, and secondly between various forms of arbitrary exercise of power, so as to illustrate the different patterns of argumentation that underpin a state’s arbitrary law-making in the realm of citizenship policy. We shall start by pointing out that authority can be understood to have discretional nature if it acts freely within the boundaries defined by law,23 whereas
arbitrary qualifies power exceeding the limits of law. It is hereby possible to identify (at least) three different meanings of arbitrariness. An authority can thus exercise arbitrary power in the sense of it being:
(a) Illegal, i.e. at odds with a defined legal rule, often of a superior level;
(b) Irrational, i.e. irreconcilable with the standards of logic or the means-to-end calculus;
(c) Discriminatory, i.e. based on categories that in themselves challenge the basic equality principle of legal systems.
3.1. Arbitrariness as Illegality
In its most commonly employed meaning, “arbitrary” is an adjective qualifying an act that breaks the law; an “arbitrary” authority exercises power illegally, i.e. in opposition to the rule of law; in other words, such an authority represents an instance of “the rule of men.” The acts of such an arbitrary authority challenge (at least one of) the two main features of the rule of law: (i), government by law, i.e. gubernaculum sub lege (GSL) and (ii) government through laws, i.e. gubernaculum per leges (GPL).
GSL obliges political authority to respect higher norms. In contemporary constitutional democracy, the legislative branch of government for instance ought to produce law that respects not only formal constitutional procedures but also substantial constitutional limits as to the content of the law, such as respect of fundamental rights (gubernaculum sub iuribus). GPL obliges political authority to express itself in the form of general and abstract rules. Today we refer to this meaning of “non-arbitrary” when we claim that parliaments should respect values such as legal equality or rule by law, i.e. producing norms addressed to a type, class or category of
people performing certain actions with many individual tokens, and thus avoid formulating individual norms: not doing so would amount to legislation through decrees, not laws. John Austin makes this clear when affirming that when a command “obliges generally to act or forbearances of a class, a command is a law or rule.”24
Therefore an arbitrary authority can act illegally in two different ways. First, it can create law freely, i.e. without respecting constitutional limits. Second, it can express itself through decrees inspired by its contingent interests. This meaning of arbitrariness is quite close to what Ernest Fraenkel called the “prerogative state” as opposed to the “normative state”, which is governed by the rule of law. In the “prerogative state”, the governor “acts not only independently of the law but, if necessary, in opposition to it, since there are no legal restraints imposed on him.”25
The clearest and most notable form of arbitrary use of power in relation to citizenship policy and border control is the state acting in breach of the law. There are of course numerous cases of illegal conduct by states but here it is sufficient to mention the Tampa Affair26 that led Australia to the unprecedented measure of
rendering part of its territory unapt to receive asylum requests: “To maintain sovereignty for the purposes of, say, asserting resource rights in the Timor Sea, but not for purposes of receiving asylum applicants, is not something contemplated by international law.”27
Another popular violation of international law by liberal-democratic states is, for instance, refoulement en mer, practiced, among others, by Italy around the international waters surrounding the isle of Lampedusa, in violation inter alia of art. 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’)28 and art. 10 § 3 of the Italian Constitution. This has led to the
condemnation of the Italian practices by the Strasbourg Court, which has stressed the absolute nature of the obligation of non-refoulement.29
It should be noted, nonetheless, that some have disputed this and a minority opinion holds that refoulement en mer actually is legal in international law. This claim was made in relation to the American refoulement of Haitians. As known, Guantanamo Bay was used for screening asylum seekers from Haiti until it became overcrowded: President Bush issued an Executive Order directing the Coastal Guard to repatriate all Haitians immediately without any screening; a policy upheld by the Supreme Court in Sale v. Haitian Centers Council, 509 US 155 of 1993. Notwithstanding this, the standard interpretation of international law bans
refoulement en mer practices.
A less obvious form of arbitrariness in terms of illegality is offered by the very category of “illegal migrants.” What exactly is an illegal person? Other terms are often used as equivalent, such as unauthorized, undocumented, clandestine, irregular and more. In the paradigm of the modern rule of law, it is impossible to call people themselves illegal; only actions, not statuses, can be deemed illegal out of the principle of personal responsibility. In English, from being an adjective qualifying an action or omission, it has now become a noun qualifying people. In the mid-twentieth century – it is worth recalling – “the noun ‘illegal’ was used in reference to Jewish migrants in various places,”30 setting, so to say, its implicit racial profiling on the
agenda. The noun also works on the basis of the assumption that these people be regarded as criminal in a mala in se sense. What should be stressed is that the category of “illegals” stands for what John Searle called an “institutional fact:”31it is a
creation of the law since “just as a physicist calibrates her instruments differently to find a wave or a particle, state migration agencies will find illegal migration when they set out to look for it.”32 In particular, since the 1990s there has been a global
crackdown on illegal migration, of which we can mention the German 1993 restrictions on asylum, the French Pasqua laws from 1993, the British caps on asylum from 1999 and 2003, the Italian Bossi-Fini law from 2002, and generally EU harmonization standards – that have led to a series of perverse effects such as the “discovering” of an increasing illegal population that happen to be such following the very changes in the law that made them appear. “Illegal migration” has been understood as an unconstitutional category thus to be rejected on the basis of lex
superior derogat, since it is aimed at people and not at acts, which is inconsistent with
the principle of personal responsibility.33 For instance, minors that are children of
individuals entering the territory illegally are deemed illegal yet are not and cannot be accused of having performed any illegal action or omission. More could, and should perhaps, be said on the assessment of free choice and responsibility when it comes to unlawful presence on the territory: here it is enough to stress that there is no necessary conceptual link between unlawful presence and choosing to cross the border, and this suffices to call for a reconsideration of the category of illegal migrants on the backdrop of the principle of personal responsibility. Such a concept can thus be listed here as a practice of arbitrary power applied to the field of citizenship policy, where “arbitrary” stands for illegal, in breach of constitutional and international law.
3.2. Arbitrariness as Irrationality
In its generic meaning, and regardless of the form of rationality one prefers, the acts of an authority can be labelled arbitrary in the sense that they are irrational – i.e. that the ratio does not hinder the voluntas of the rulers. This idea is expressed in a nutshell by Leibniz: stat pro ratione voluntas, “my will takes the place of reason, is properly the motto of a tyrant.”34 In modern natural law, for example, the rationality of a legal
provision depends on its coherence with fundamental law, which is in turn rationally recognizable. On another reading, acting irrationally simply means choosing inappropriate or inadequate means for achieving aims set in advance. In a third meaning, irrationality – or unreasonableness – implies acting without flexibility in decision-making processes, i.e. applying the letter of the law without paying due attention to special circumstances arising in a particular case; for instance, the deportation of women in late stages of pregnancy.
There is a set of policies relating to citizenship and border control that offer examples of arbitrariness as irrationality. Here we shall give a few examples pertaining to the instrumental sense of incoherence as a mismatch between means and ends (i.e. inconsistency).
One such case is, for instance, the so-called Safe Third Country Rules: These stipulate that if asylum seekers pass through a safe country in transit to the country in which they claim asylum, they can be returned to the safe country. Safe Third Country Rules have become very popular in the EU. “Germany, for example, revised its constitution in 1993 to exclude from its constitutional right to asylum anyone ‘who enters the federal territory from a Member-State of the EU or from another third state.’ The first concern of German immigration officials is now to ascertain asylum seekers’ travel itineraries in order to determine their eligibility to file an application […]. The Dublin Convention […] treats all EU members as safe third countries, including transit states in Eastern Europe. Because the core asylum countries in Northern and Western Europe are surrounded by ‘safe’ countries, it is very difficult
for an asylum seeker to initiate an asylum claim at a land border of any of these states.”35 The irrationality stems from the fact that it does not make sense to have an
asylum regulation that admits people arriving by land if the land way access is effectively barred from being used for the purpose of presenting an asylum request.
Another striking feature of arbitrary rule in citizenship policy is the absurd situation of many illegal residents (sans-papiers already present on the territory): they turn out to be de facto stateless because “many governments place high demands upon the return of nationals who have destroyed their identity documents in order to evade repatriation”36, and “immigration officials often cannot procure travel documents if
diplomatic relations between the two governments are highly hostile or nonexistent.”37
This means that many such people effectively end up in a legal limbo, producing incoherence in the law: they cannot stay but they may not go.
A case that made headlines illustrating this kind of untenable situation was that of Ruiz Zambrano, a Columbian national, “illegally resident” in Belgium since his asylum application was refused in 2000. Such a rejection, however, did not entail deportation: the notification order issued to him and his family included a
non-refoulement clause stating that they should not be sent back to Colombia in view of
the civil war in that country. Having minor children who had acquired Belgian nationality (because Belgian nationality is automatically given to individuals born in the country, who would otherwise be stateless, and Columbian law does not recognize children born outside its territory) and having had for many years an ordinary employment contract, when Ruiz Zambrano lost his job and applied for unemployment benefits, he discovered that the Belgian National Employment Office refused to grant him the benefits, because he lacked a work permit that could be obtained only by people with the right of residence. This case was resolved by an intervention of high law: the Tribunal du travail de Bruxelles (Belgium), decided in December 2008 to refer to the European Court of Justice for a preliminary ruling under Article 234 EC. The case concerned inter alia the interpretation of the fundamental rights in the EU, since the ECHR bans the deportation of children having the nationality of the state in question. Here, deporting the father, an illegal third country national, would de facto amount to depriving those children of the genuine enjoyment of the rights of EU citizens.38 In most cases however there is no possibility
to call for higher law.
Moreover, these Kafka-like situations are not reserved only for asylum seekers but for other migrants as well. A citizenship-related example of such arbitrary law-making is a consequence of the Italian Bossi-Fini law: “The police stations argued that granting a work permit during the process of naturalisation was a violation of the ‘Bossi-Fini’ provision, because it formally introduced non-EU workers into the labour market beyond the quotas that had been established. However, these conflicts often ended with agreements of convenience based on common sense: people who have been granted a permit of stay for up to a year cannot be prohibited from working without eventually creating the conditions for public unrest. Quite reasonable, except that the decision taken by the Ministry of Home Affairs, in December 2006, adopted the strict legalistic interpretation given by some police stations, creating a ‘Kafka-like’ situation. According to the Italian government, the residents waiting for citizenship recognition ex iure sanguinis were Italian by birth and during the process attesting the alleged citizenship status they were granted a period of legal residence in the country on much more favourable terms than other non-EU citizens. However, then the privilege consists only in legal residence that paradoxically does not entitle the person to access the labour market, where he or she continues to be considered a
non-EU citizen.”39 The irrationality here lies in the contradiction between the legal
fiction implied in your enjoying the entitlement of nationality ex iure sanguinis and still not being able to access the labour market legally in your “own” county.
In this category of “irrational” naturalisation requirements we should perhaps also list the naturalisation policy to become Cypriote: the country has a relatively liberal policy for naturalizing (seven years of residence and other minor requirements) but the country only extends permits of stay for four years for working purposes, making naturalisation de facto an option only for rentiers.
Finally a kind of arbitrary measure of the irrational type are those that have contradictory effects or appear to be irrational from a consequentialist standpoint: consider the fact that safe country lists also enable so-called “chain deportation.” “For example, in 2003 Germany regarded the Czech Republic as safe, the Czech Republic regarded Slovakia as safe, and Slovakia regarded Zimbabwe as safe! Slovakia also returned Chechen asylum seekers to Ukraine, which in turn has deported them back to the Russian Federation.”40 Here the irrationality appears when the whole chain is
taken into account.
There are also other forms of arbitrary measures that end up in being impracticable yet that are being currently used in order to curtail the possibility of presenting asylum requests. One such case involves excessive limitations applied to filing deadlines. While the US deadline is very generous (12 months after entering the country) some other cases stand out as being ludicrous: for instance, until 2000, Slovakia had a 24 hour deadline and Bulgaria a 72 hour deadline. “In Slovakia the clock began ticking when asylum seekers first entered the country, even if only to pass through en route to a destination further west. If they were to return from their destination […] they would have discovered that they had already missed the filing deadline.”41 Moreover,
“rejected applicants further have only a very brief window within which appeals can be filed – as of at least 2000, in Germany, manifestly unfounded applicants had three days to appeal; in Belgium such port-of-entry applicants detained close to the port had only one day to appeal.”42 What often renders such filing deadlines impossible to
respect is that they cumulate with cumbersome and sometimes unattainable corroboration requirements: the burden of proving that corroborative evidence requested by the adjudicator is not available is placed on the applicant.
In this last example concerning filing deadlines we could argue that the exercise of power is not merely arbitrary in the generic sense of irrational but, for all practical purposes, it also amounts to being logically impossible – nonsensical. To rephrase it in Spinoza’s words: “If, for instance, I say that I can rightfully do what I will with this table, I certainly do not mean that I have the right to make it eat grass.”43
3.3. Arbitrariness as Discrimination
In its third meaning, “arbitrary” qualifies a form of discriminating power. A public institution can be said to exercise power in discriminatory ways in two senses: it can violate the principle of equality “before the law” (égalité devant la loi) or it can violate the principle of equality “within the law” (égalité dans la loi). The two paradigmatic cases embodying these two options are (1) unequal treatment of two citizens motivated by the biasness of the court and (2) Parliament passing discriminating bills. Here we consider only the second meaning.
This meaning is quite close to what legal theorists call the “reasonableness of the law.”44 In the policy realms under
examination, the law-making process largely consists of connecting naturalistic features that characterise different people to a legal status that entails a series of legal effects: for instance, today the natural differences between men and women are not considered to be reason enough for excluding women from political representation, since it is no longer held that the naturalistic features typical of women induce incapacity to reason about political matters; an argument that was often upheld before the suffragettes' revolt. However, the very same naturalistic features that still distinguish men and women are held to constitute sufficient reason for differentiated parental leave in most countries. In other words, a law can be considered unreasonable45 – i.e. constitute arbitrary discrimination – if two (or more) subjects are treated
differently without there being “sufficient reasons”46 for making
certain consequences follow from a status that one acquires entitlement to out of the presence of certain naturalistic features: if, that is, these factual characteristics are irrelevant for determining the ability to enjoy or exercise the rights and obligations deriving from the entitlement.
Strictly speaking, “arbitrary” qualifies the acts of the authority that create discriminating (i.e. unjustified) statuses in the law, such as a bill that would treat brown-haired thieves differently from fair-haired thieves. Its arbitrariness lies in the fact that the naturalistic feature – hair colour – is not considered reason enough to ground differentiated legal treatment when it comes to punishment of thieves, even though other naturalistic features – say, cognitive abilities – might be considered relevant for calling into question, for instance, extenuating circumstances.
There are many forms of such arbitrary rules in citizenship-related policy areas that hinge upon unequal treatment in this latter meaning.
One case, for example, is that appeal can be accepted or rejected on the grounds of what nationality you have when you apply for asylum in Britain: “Many states adopt presumptions against claims filed by individuals from what are deemed to be ‘safe’ countries of origin. In 2004, 25 countries were on Britain’s ‘safe’ list. Countries added that year included Bangladesh, Bolivia, Brazil, Ecuador, South Africa, Sri Lanka and Ukraine […]. Rejected applicants from countries of origin deemed safe are subjected to an expediate adjudication process and have access only to non-suspensive appeals.”47 This amounts to the creation of an “unequal form of law”: how can
nationality be a reasonable ground for discriminating among those who would benefit from an appeal and those who would not? Could it not be that one country may be deemed safe as far as e.g. risks for warfare are concerned but not for just any form of persecution? Could it not be that a certain group of people is subjected to severe risks in a “safe” country even though most citizens are not, for instance, because of beliefs pertaining to religion, ethnic origins, sexual orientation etc.?
Another inequality one could accentuate is the unequal treatment of refugees depending on “entry port.” In fact, why should the geographic location of the port of entry into a country constitute sufficient reason to discriminate between two categories of refugees? This problem also refers to the treatment of the issue of refugees by the media: “When masses of people flow over the border from Burma to Thailand, from Rwanda to Burundi, or from the Sudan to Chad and the Central African Republic, we are prepared to assume that they are refugees, or even that they should be considered as such, despite not fitting within the letter of the law. However,
when the border being crossed is closer to home […] and the politics one is fleeing have slipped from the front pages, the assumption is often the inverse.”48
Yet another case of port of entry discrimination among refugees arises with the internationalisation of ports that creates the legal fiction that asylum seekers have not actually entered the national territory. Their removal thus does not constitute a denial of the right to apply for asylum. “France has designed areas of its airports to be ‘international zones’ where asylum seekers can be detained without the protections normally given under French law.”49 What naturalistic feature does the Charles de
Gaulle airport have that makes it apt to qualify as state territory for all purposes except asylum applications?
A more general form of “unequal treatment” emerges when no distinctions are made between asylum seekers from other migrants: some policies are very clumsy instruments, largely failing to distinguish between those who seek asylum in bad faith and those who are genuinely eligible. Such cases include reductions in the public benefits available to asylum seekers (i.e. cash-transfers replaced with in-kind benefits), detention of asylum seekers;50 expediated proceedings, with no or minimal
judicial review. Almost every country of asylum now has an accelerated decision-making and removal process for “manifestly unfounded” claims. One big problem with expediate removals is that those judging whether the claim is “manifestly unfounded” have no training in asylum and refugee law; for instance, they may fail to recognize that fear of domestic violence may qualify for asylum as persecution on the basis of gender. Between 1978 and 1992 new applications for asylum in industrialized countries exploded nearly twenty-fold, from roughly 45,000 to 850,000. This quickly led to an overload of work for immigration judges with the undesired consequence that merely filing an asylum application and appealing a denial can extend one’s legal presence by years. In a world of closed borders like ours, “it is unfair to reward scofflaws with a free pass on immigration restrictions, while forcing law-abiding foreigners to spend years – sometimes more than a decade – in queues awaiting an immigration visa. For example, in August 2007, the backlog for Indians applying for an immigration visa to reunite with a brother or sister in the United States was eleven years; for Filipinos, the wait was 22 years. Permanent residents who had immigrated from China, India and the Philippines faced a five-year wait to reunite with spouses and minor children.”51 In such a situation, failing to distinguish between good faith
and bad faith asylum requests by creating one-size-fits-all procedures creates an unmotivated privilege for bad faith asylum seekers with respect to law-abiding migrants attempting, for instance, to reunite with family members.
Unequal treatment has also been noted in relation to implementation policies, an under-studied area of migration. For instance, there seems to be racial profiling aspects related to deportation practices in Germany where changes in the enforcement of deportation have been made following a change in the provenance of migrants: “Comparing the typical profile of Germany’s undocumented immigrants – Eastern European and former Soviet nationals who entered and/or worked illegally – with those of rejected asylum seekers, many of whom originate from Asian or African countries, it is evident that the administrative efforts required for asylum removals, in particular the procurement of identity documents, far outweigh the challenge of deporting undocumented immigrants, both in terms of legal proceedings and travel arrangements.”52 Yet Germany deports prevailingly asylum seekers and not
undocumented aliens. Antje Ellermann stressed that “the relative neglect of undocumented immigrants by law enforcement authorities is reflected in the absence
of specific administrative infrastructures designed for their arrest and repatriation.”53
The discriminative feature derives from over-focus on one group, i.e. asylum seekers. Among the unequal treatment-measures in relation to naturalisation processes for acquiring citizenship we could also mention the case of Germany, where there is a ban on dual citizenship that requires people to give up their citizenship in the event of naturalisation (with the exception of some, such as Iranians and Afghans, because their home countries do not let them renounce citizenship, or demand exorbitant sums for it). The reason why this poses a problem of equal treatment is because dual citizenship is tolerated for the Aussiedler, or ethnic Germans: “The law’s acceptance of dual citizenship for ethnic-Germans and its steadfast opposition to dual citizenship for non-ethnic German immigrants is ‘blatant hypocrisy’”54 – construing a
discriminatory, thus arbitrary category. 4. Conclusions
We have looked at how different conceptions of citizenship ground disenfranchisement and have singled out the specificity of the argumentative strategy employed to sustain non-national disenfranchisement. It differs from other argumentations in favour of disenfranchisement because it is not framed in derogatory terms and shifts the burden of proof from the state over to the individual. Political exclusion does not only appear to be the vertex of a chain of other forms of exclusion but it also offers the opportunity to highlight and differentiate between the different forms of arbitrary law-making and law-enforcing practices that non-nationals are subject to. We have developed a typology of forms of arbitrariness applied to citizenship policies enabling a clarifying differentiation among forms of abuse: (a) illegal practices, (b) irrational policies and (c) discriminatory statuses. Differentiation is paramount to developing ways of reducing the arbitrary rule of public officials in migration and citizenship policies.
1 The expression comes from the Supreme Court in Trop v. Dulles, 356 U.S. 86, 101 (1958), p. 355.
2 Meghan Benton, “The Tyranny of the Enfranchised Majority? The Accountability of States to Their Non-Citizen
Population,” Res Publica, 16, 4 (2010): 397-413.
3 Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983), 62. 4 Coel Kirkby, “Disenfranchised Democracy: Administrative Interventions in Historically-Segregated Communities of
Canada and South Africa” (2010), available at www.juridicas.unam.mx/wccl/ponencias/1/22.pdf. Last accessed: Mars, 20 2012; Richard H. Bartlett, “Citizens Minus: Indians and the Right to Vote,” Saskatchewan Law Review, 44 (1980): 163-194.
5 Ladislav Vyhnánek, “Mental Disability and the Right to Vote in Europe: A Few Notes on the RecentDevelopment”
(2010), available at www.juridicas.unam.mx/wccl/ponencias/1/40.pdf. Last accessed: Mars, 20 2012, 3; Peter Bartlett, Oliver Lewis, Oliver Thorold, Mental Disability and the European Convention on Human Rights (Leiden: Martinus Nijhoff, 2007), 169-198.
6Criminal Disenfranchisement in an International Perspective, eds. Alec C. Ewald, Brandon Rottinghaus (Cambridge:
Cambridge University Press, 2009), 12. For a comparative analysis of criminal disenfranchisement, see Laleh Ispahani, “Voting Rights and Human Rights: A Comparative Analysis of Criminal Disenfranchisement Laws,” Criminal
Disenfranchisement in an International Perspective, eds. Ewald, Rottinghaus. It is important to stress that, in addition to
legal disenfranchisement, there are many other forms of de facto disenfranchisement. For example until the Voting Right Act in 1965, in a few southern US States, African-Americans could not vote even when they were entitled to do so under the 15th Amendment. The Act prohibits states from imposing any “voting qualification or prerequisite to
voting, or standard, practice, or procedure,” such as illiteracy tests or pool taxes in order to register to vote; see Sandra Guerra, “Voting Rights and the Constitution: The Disenfranchisement of Non-English Speaking Citizens,” The Yale
Law Journal, 97, 7 (1988): 1419-1437.
7 Jesse Furman, “Political Illiberalism: The Paradox of Disenfranchisement and the Ambivalences of Rawlsian justice,”
Yale Law Journal, 1 (1997), 1222.
8 For the argumentative strategies behind disenfranchisement, see Ludvig Beckman, The Frontiers of Democracy. The
Right to Vote and its Limits (New York: Palgrave Macmillan, 2009).
9 Gustaf Arrhenius, “The Democratic Boundary Problem,” Democracy Unbound: Basic Explorations I, ed. Folke
Tersman (Stockholm: Stockholms Universitet, 2005). Available at http://people.su.se/~folke/boundary.pdf. Last accessed: Mars, 20 2012.
10 Capacity is an aspect of a person’s status and defined by a person's personal law, i.e. for natural persons, the law of
nationality or lex patriae, or of habitual residence in civil law states and residence in many common law jurisdictions.
11 For a detailed explanation of the distinction, the methodology used and the results obtained by applying this approach
see Patricia Mindus, “Europeanisation of Citizenship within the EU: Perspectives and Ambiguities,” Jean Monnet
Series of Working Paper (2008), available at:
http://www4.soc.unitn.it:8080/poloeuropeo/content/e2611/index_eng.html . Last accessed: Mars, 20 2012.
12 The two paradigmatic models are often conceived as the French ius soli-centred model and the German ius
sanguinis-focused model: see Roger Brubaker, Citizenship and Nationhood in France and Germany (Cambridge: Harvard University Press, 1992) and Pietro Costa, Civitas. Storia della cittadinanza in Europa, vol. I (Roma-Bari: Laterza, 1999); more specifically Markus Krajewski, Helmut Rittstieg, “German Nationality Law,” Nationality Laws in the
European Union, ed. Bruno Nascimbene (London: Butterworths, 1996); Andreas K. Fahrmeier, “Nineteenth-Century
German Citizenships: A Reconsideration,” Historical Journal, 40, 3 (1997): 721-752; Paul Lagarde, “Le droit français de la nationalité,” Nationality Laws in the European Union, ed. Bruno Nascimbene (London: Butterworths, 1996); Benoit Guiguet, “Citizenship and Nationality: Tracing the French Roots of the Distinction,” European Citizenship: An
Institutional Challenge, ed. Massimo La Torre (Den Haag: Clair Law International, 1999); Alfred Schumacher,
“Citoyenneté et quête identitaire. Les codes allemands de la nationalité,” Allemagne d’aujourd’hui, 157 (2001): 99-179, special issue on “conceptions européennes de la citoyenneté”; Patrick Weil, Qu’est-ce qu’un français? Histoire de la
nationalité française depuis la Révolution (Paris: Grasset, 2002); Ulrich K. Preuss, “Citizenship and the German
Nation,” Citizenship Studies, 7, 1 (2003): 37-55; Edwige L. Lefebvre, “Republicanism and Universalism: Factors of Inclusion or Exclusion in the French Concept of Citizenship,” Citizenship Studies, 7, 1 (2003): 15-36.
13 See, among others, Virginia Harper-Ho, “Non-citizen Voting Rights: The History, the Law and Current Prospects for
Change,” Law and EqualityJournal, 18 (2000): 271-322; Richard S. Katz, “Noncitizens and the Right to Vote.”
International Encyclopedia of Elections, ed. Richard Rose(Washington: CQ Press, 2000); Jamin B. Raskin, “Legal
Aliens, Local Citizens: The Historical, Constitutional, and Theoretical Meanings of Alien Suffrage,” University of
Pennsylvania Law Review, 141, 4 (1993): 1391-1470; The Political rights of migrant workers in Western Europe, ed.
Zig Layton-Henry (London: Sage, 1990).
14 Georg Wilhelm Friedrich Hegel, The Science of Logic (1812) (Cambridge: Cambridge University Press, 2010), §783. 15 Jo Shaw, The Transformations of Citizenship in the European Union. Electoral Rights and Restructuration of
Political Space (Cambridge: Cambridge University Press, 2007).
17 Adrian N. Sherwin-White, The Roman Citizenship (Oxford: Clarendon Press, 1939); Jean Gaudemet, “Les Romains
et les autres,” La nozione di “Romano.” Atti del II Seminario internazionale di studi storici “Da Roma alla terza
Roma” (Napoli: Esi 1984); Yan Thomas “Origine” et “commune patrie,” Étude de droit public romain, 89 av. J-C.-212
ap. J-C. (Roma: Coll. de l'École française de Rome, 1996); Claire Lovisi, “Les espaces successifs de la citoyenneté à Rome,” Citoyenneté, souveraineté, société civile, eds. Pascale Gonod, Jean-Pierre Dubois (Paris: Dalloz, 2003).
18 Saskia Sassen, Losing Control? Sovereignty in the Age of Globalization (New York: Columbia University Press,
1996).
19 Patricia Mindus, Marco Goldoni, “Between Democracy and Nationality: Citizenship Policies in the Lisbon Ruling,”
European Public Law, 18 (2012): 2.
20 Marc M. Howard, The Politics of Citizenship in Europe (Cambridge: Cambridge University Press, 2009), 113. 21 Catherine Dauvergne, Making People Illegal. What Globalisation Means for Migration and Law (Cambridge:
Cambridge University Press, 2009), 8.
22 C.L.S. Montesquieu, The Spirit of the Laws (1748) (Cambridge: Cambridge University Press, 1989), 155. 23 The Uses of Discretion, ed. Keith Hawkins (Oxford: Clarendon, 2002).
24 John Austin, Lectures on Jurisprudence (5th ed., London 1885), I, 92. See also Hans Kelsen, General Theory of Law
and State (1945) (Clark, NJ: The Lawbook Exchange, 2007), 38.
25 Ernst Fraenkel, The Dual State. A Contribution to the Theory of Dictatorship (1941) (Clark, NJ: The Lawbook
Exchange, 2006), 67.
26 Early in August 2001, a group of asylum seekers, mostly Afghans fleeing the Taliban regime, boarded a barely
seaworthy vessel in southern Indonesia. The Norwegian Tampa rescued them as their vessel was sinking off the coast of Christmas Island (Australia). When the Tampa sought to disembark on the island, the Australian government took the unprecedented step of closing its territorial seas in order to prevent them from claiming asylum. Troupes boarded the ship by stealth to deliver food and medical assistance. On Tampa see Kim Rubenstein, “Citizenship, Sovereignty and Migration: Australia’s Exclusive Approach to Membership of the Community,” Public Law Review, 13 (2002), 102ff. The Australian government succeeded in preventing the asylum seekers from entering Australian territory. In the so-called “Pacific solution,” Australia entered an agreement with New Zealand, Papua New Guinea and Nauru to accept those on board and rendered parts of Australian territory “non-territory” for claiming asylum in 2005: Coral Sea Island Territory, Queensland islands north of latitude 21 degrees south, Western Australian islands north of latitude 23 degrees south and northern territory islands north of latitude 16 degrees south.
27 Dauvergne, Making People Illegal, 58.
28 United Nations High Commissioner for Refugees expressed its deep concern after the events, especially in an opinion
about the extraterritorial application of non-refoulement obligations deriving from the Convention Relating to the Status of Refugees of 1951 and its Protocol of 1967; available at http://www.unhcr.it/cms/attach/editor/ITA%20Advisory %20Opinion%20Extrater-Appl%20of%20Non-refoulement.doc. Last accessed: Mars, 20 2012.
29 Saadi c. Italie, ECHR 28/02/2008. Italy is not alone in this field: Spain is currently erecting an electronic barrier
along the part of the coast closest to Morocco, and has been investing in patrol boats and night-vision and heat-seeking equipment.
30 Dauvergne, Making People Illegal, 10.
31 John Searle, The Construction of Social Reality (NewYork: The Free Press, 1995). 32 Dauvergne, Making People Illegal, 15.
33 Luigi Ferrajoli, “The Rule of Law between Past and Future,” The Rule of Law. History, Theory, Criticism, ed. Pietro
Costa, Danilo Zolo (Dordrecht: Springer, 2007); Luigi Ferrajoli, “The Normative Paradigm of Constitutional Democracy,” Res Publica, 17, 4 (2011): 355-367; see the special issue of Res Publica, 17, 4 (2011) on Luigi Ferrajoli’s
Principia iuris.
34 G.W. Leibniz, Meditation on the Common Concept of Justice (1702-03), in Id., Political Writings, edited by Patrick
Riley (Cambridge: Cambridge University Press, 1988).
35 Matthew E. Price, Rethinking Asylum. History, Purpose and Limits (Cambridge: Cambridge University Press, 2009),
211.
36 Antje Ellermann, States Against Migrants. Deportation in Germany and the United States (Cambridge: Cambridge
University Press, 2009), 14.
37 Ibid., 25.
38 The ECJ concluded that Article 20 TFEU cannot be “interpreted as meaning that it precludes a Member State from
refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of EU citizen.” See ECJ Case C-34/09 Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm).
39 Guido Tintori, Fardelli d’Italia? Conseguenze nazionali e transnazionali delle politiche di cittadinanza italiane
(Rome: Carocci, 2009), 64.
40 Price, Rethinking Asylum, 221. 41 Price, Rethinking Asylum, 212. 42 Ibid., 213.
43 Baruch Spinoza, Political Treatise (1676) (Indianapolis: Hackett, 2000), ch. 4.
44Alius Aarnio, The Rational as Reasonable. A Treatise on Legal Justification (Dordrecht: D. Reidel Publishing
Company, 1987); Neil MacCormick, Rhetoric and the Rule of Law (Oxford: Oxford University Press 2005), ch. 9; Manuel Atienza, “Para una razonable definición de razonable,” Doxa, 4 (2007): 189-200; Reasonableness and Law, eds. Giorgio Bongiovanni, Giovanni Sartor, Chiara Valentini (Dordrecht: Springer, 2009).
45Chaïm Perelman, Le raisonable et le déraisonable en droit (Paris: Sirey, 1978); Neil MacCormick, “Reasonableness
and Objectivity,” Notre Dame Law Review, 74, 5 (1999): 1575-1586; Robert Alexy, “The Reasonableness of Law,”
Reasonableness and Law, eds. Bongiovanni, Sartor, Valentini.
46 In this context, reasonable means grounded on reasons; these reasons being enough to rationally justify a statement
on reality. According to Leibniz, in virtue of the principle of sufficient reason, “we believe that no fact can be real or existing and no statement true unless it has a sufficient reason why it should be thus and not otherwise. Most frequently, however, these reasons cannot be known by us” (Monadology, 32). Legally speaking, reasonableness is our ability to provide sufficient reasons in the form of arguments, in order to ground a prescriptive statement, i.e. a norm. See Joseph Raz, The Authority of Law (Oxford: Clarendon, 1979); Lord Justice Bingham, “Reasons and Reasons for Reasons: Differences Between a Court Judgment and an Arbitration Award,” Arbitration International, 4 (1988); Mathilde Cohen, “Reason-Giving in Court Practice: Decision-Makers at the Crossroads,” Columbia Journal of European Law, 14, 2 (2008).
47 Price, Rethinking Asylum, 210. 48 Dauvergne, Making People Illegal, 53. 49 Price, Rethinking Asylum,209.
50 One such blatant case was when, in March 2003, the Department of Homeland Security announced the plan – called
Operation Liberty Shield – to institute mandatory detention for all asylum seekers arriving at ports of entry from 33
countries with large Muslim or Arab populations.
51 Price, Rethinking Asylum, 207.
52 Ellermann, States Against Migrants, 98. 53 Ibid., 98.
