chapter  5
20 Pages

Inclusion for the sake of exclusion: the authority of immigration laws

In the preceding chapters the main target of our investigation has been the rule of inherent sovereign power. This rule is crucial as it legally sanctions the current practice of exclusion without justifi cation. The aim of the critique was to show that the rule does not fi nd any basis in positive law when it comes to the other powers associated with sovereignty (see Chapter 2 ) and that its sole support comes from the deeply fl awed exclusion thesis (see Chapters 3 to 4 ). It has become clear that there is nothing exceptional about the exclusion of normal migrants that should prevent it from being subject to normal legal constraints. Consequently, there is simply no legal basis for the authorities to exclude normal migrants without proper justifi cation. The rule of inherent sovereign power and thus exclusion without justifi cation is legally untenable. So far, the argument is essentially one of competence. Authorities need a legal basis for their actions, and in the case at hand they happen to lack this competence. The reason is that such an absolute discretionary competence relies on hyperbolic notions of order as unity, exclusion and the state of exception, which do not fi t the structure of law. There is another argument from the structure of law against the current practice of exclusion without justifi cation. Ironically, the exclusion thesis points to this argument as it identifi es a painful anomaly: the migrant is included for the purpose of his exclusion. However, as the exclusion thesis focuses so much on order, it overlooks two crucial closely related elements. First, not only does the law grant the authorities the power to exclude migrants, 1 but the authorities also use the law to organize the exclusion. This is not self-evident because authorities could have organized the exclusion without the use of migration laws. They might have opted for just putting up fences and giving orders to their offi cials to keep out aliens by all means not prohibited by law. Yet in addition to such measures, states have also issued immigration laws. In other words, states use the law to organize the exclusion of migrants. Second, migrants are offi cially the norm subjects of the immigration laws. The immigration laws are not only directed at the offi cials

responsible for executing the exclusion of migrants, but they are also directed at migrants; the migrants are expected to obey the immigration laws. The admission laws contain provisions directly addressed to migrants, e.g. they cannot enter and reside in the territory without the proper documentation, and risk (penal) sanctions if they violate such interdictions.