ABSTRACT
This chapter examines the normative basis and structure of the refugee concept. Starting from a juxtaposition of different uses of the refugee concept today, the chapter turns to the concept’s origins and history. The emergence of the refugee notion in the seventeenth century, it is argued, relates to the changes in the political order at that time. With the increasing significance of territorial borders, reasons for migration gain importance. Moreover, the individual becomes the reference point of the thinking about legitimacy. The emerging conception of the social contract views the territorial community as basis of all law. Accordingly, the state is, in general, perceived as free to regulate entry. However, political philosophers in different versions describe an exception to that rule: towards the stranger at the border who otherwise faces serious harm the state has an obligation of admittance. This normative idea of an exception successively joins with the refugee concept. It responds to a basic tension in the framework of the territorial state, which on the one hand is based on the universalist principles of human equality and freedom, and on the other hand delimitates rights and obligations along territorial borders. The refugee concept reflects the idea that this delimitation must be corrected in extreme cases for the tension to remain tolerable. In that role of a constitutive exception, the refugee concept is both the object and engine of critique: it can be seen to bolster the state’s discretion in regulating entry, yet it can also assume a role in unsettling this prerogative, representing a cosmopolitan rights claim.
