How Political and Legal Theorists can Change Admission Laws

Abstract

"This article is another theoretical account of immigration among the many philosophical contributions that have appeared over the last twenty years.1 Most of them have already adequately exhausted the major arguments involved in the ethics of migration. More importantly, political philosophy seems to have little impact on improving immigration policies. So why bother reading this article as it is unlikely to provide new insights or change anything? This article, rather pretentiously, claims that there are at least two opportunities for change that to date have remained practically unexplored. First, the legal foundations of current policies have been insufficiently challenged by theorists from the perspective of the law. Second, theorists have concentrated primarily on identifying good (practical) reasons for the admission and exclusion of aliens in general. They have not spent much concrete thinking in how to effectively involve aliens in order to respond to those practical reasons.2 The failure to come up with legal challenges has strengthened the practice and belief among officials that current admission laws are unproblematic from the legal perspective. The insufficient focus on voice of the alien has fostered the practice of unilateral immigration policies that do not seek to involve the affected aliens. By contrast, this article shall explore the two opportunities for change. Sections I and II propose two examples of how to challenge legally current admission practices. Section III tries to find out how to render the scholarship on ethics of migration more productive in a practical sense. I will argue that rather than producing reasons for adopting a particular openness or closure of borders, political theory can provide reasons for adopting a new default framework for discussing, negotiating and determining particular levels of openness.3 The default position is to be set in favor of aliens: their admission is the normal case and the exception, i.e. exclusion, will need extra justification.4 I will propose some guidelines for how to make this justification framework effective. Ultimately, this article seeks to urge political and legal theorists to come up with proposals for concrete institutional arrangements that will improve our current admission practices."(pg 1-2)