chapter  3
36 Pages

The exclusion thesis

Chapter 2 showed that the standard powers associated with sovereignty do not support the rule of inherent sovereign power. Without exception the exercise of sovereign powers are subject to constraints and susceptible to justifi cation. But maybe the exclusion of migrants happens to be the exception par excellence. Perhaps there is something so special about exclusion and migrants that justifi es the absence of justifi cation. But what can this be? What is beyond justifi cation? Arguably, only things that are in a way essential, necessary, inevitable or constitutive are beyond justifi cation. By contrast, anything less than the essential or necessary already falls within the realm of justifi cation. To put it differently, the rule of inherent sovereign power holds if and only if it can be shown that exclusion of normal migrants is in some way necessary and essentially beyond justifi cation. Any weaker claim already allows for justifi cation. We can frame this existential argument for the rule of inherent sovereign power in terms of what I call the exclusion thesis. It roughly goes as follows:

– prior to the political and legal order there is no legal and political standard for justifi cation;

– to create a legal order it must be determined what and who is included in the order;

– inclusion is prior to and constitutive of a legal and political order; – inclusion implies exclusion and exclusion co-determines what is included; – exclusion is also prior to and constitutive of a legal and political order.