Exceptional Justice? A Discourse Ethical Contribution to the Immigrant Question

Abstract

AbstractI argue that the exception must be a legitimate possibility within law as a revolutionary project, in much the same way that civil disobedience is. In this sense, the exception is not outside law if by "law" we mean not positive law as defined by extant legal documents (statutes, legislative committee reports, written judgments, etc.) but law as a living tradition consisting of both abstract norms and a concrete historical understanding of them. So construed, the exception is what can be exemplary - a law unto itself that best interprets and creatively extends (and transcends) the law that already exists, in order to make it inclusive of the other. In the final analysis, immigration law forces us to consider both the concrete individuality and abstract humanity of refugees, asylum seekers and other homeless persons who have been displaced by global economic underdevelopment. When combined with the "statelessness" of desperate classes of immigrants, this fact about immigration law reveals a revolutionary possibility for future development and perfection leading to its own transcendence: from an inhospitable immigration law that is administered exclusively by the nation state to a cosmopolitan law of universal citizenship under the auspices of a global human rights regime.