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- Mindus, Patricia
(författare)
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Introduction - Justice of Others: Arbitrary Law-making in Contemporary Migration Policy
- 2020
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Ingår i: Etikk i praksis. - NTNU : Norwegian University of Science and Technology (NTNU) Library. - 1890-3991 .- 1890-4009. ; 14:2, s. 1-7
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Tidskriftsartikel (övrigt vetenskapligt/konstnärligt)abstract
- Does the regulation of migration constitute a blatant case of arbitrary law-making? What is arbitrary law-making? And how does it manifest itself in contemporary migration policy? These are pressing issues that the scholars who come together in this special issue seek to engage with, by exploring international migration from the point of view of arbitrary power. When does legitimate state discretion slide into an exercise of arbitrary power? Since we cannot address what we do not understand, the urgency of the matter addressed in this special issue speaks for itself. Deciding who may enjoy the right of abode, the right to remain, the right to asylum and to citizenship is a key power of the state: it is a regal prerogative, an act of sovereignty, limited only by deliberately accepted commitments, such as the respect for human rights. This makes migration policy an exceptionally interesting ground to test the limits of discretion and the forms of arbitrariness. Power can be understood to be of a discretional nature if it acts freely within the boundaries defined by law, whereas arbitrariness qualifies discretional power exceeding the limits of law.
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| 2. |
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| 3. |
- Mindus, Patricia
(författare)
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Towards a Theory of Arbitrary Law-making in Migration Policy
- 2020
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Ingår i: Etikk i praksis. - : Norwegian University of Science and Technology (NTNU) Library. - 1890-3991 .- 1890-4009. ; 14:2, s. 9-33
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Tidskriftsartikel (refereegranskat)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.
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