On the basis of an understanding of arbitrariness suited to discussing legal matters, we have now sought to establish the difference between discretionary and arbitrary law-making. The distinction depends on whether the exercise of power that leads to a determinate outcome – a rule or decision – occurs within or beyond the limits set by the law. We still need to stress that a given power may exceed the limits of the law in a variety of ways.

Building on the work of Cuono (2018), who has shown the purposefulness, in relation to legislation, of distinguishing between three ways in which an authority can be said to exercise arbitrary power, it is possible to present a typology of arbitrary law-making. Arbitrary law-making may be said to include three different types of law-making, i.e. law-making that is: (a) illegal, at odds with a defined legal rule, often at a superior level; (b) irrational, irreconcilable with the standards of logic or the means-to-an-end calculus; or (c) discriminatory, based on categories that in themselves challenge the basic equality principle of legal systems.⁶ These types of arbitrary law-making are distinguished below and briefly outlined, against the backdrop of some classical topoi in the history of practical philosophy. The purpose of these references is not genealogic or historical, but explanatory.

Two caveats are required at this point. First, the fact that the aforementioned types are different means that they call for different solutions. Catch-all solutions ought therefore to be rejected. The kind of arbitrary law-making involved in (a), (b) and (c) can be more or less problematic and requires different argumentative strategies and legal-political tools to be resolved. Distinguishing between (a) illegal practices, (b) irrational policies and (c) discriminatory statuses is helpful in order to clarify and differentiate among forms of abuse, and to be able to distinguish between various forms of arbitrary law-making. Yet, it is necessary to stress that, if faced with an illegal practice, it needs to be overcome by enforcing a higher standing rule (e.g. through constitutional review); it cannot be overcome by argumentation or scientific-technical inquiry (which may, however, help to hinder or impede irrational policies that are fundamentally ill-conceived by the lawmakers), nor can illegal practices be defused by further political and/or cultural debate (which can, however, be useful to fight lawmakers’ crafting of discriminatory statuses). Nonetheless, whether the intervention of constitutional judges would be the appropriate response to tackle forms of irrational policies, for example, would depend on many empirical factors, including the kind of constitutional review (ex ante or ex post review), the authority of the court, nomination practices, and finally, the complexity of the choice lawmakers were called on to make in the first place. The higher the complexity, the lower the possibility that the choice appears irrational to all actors involved.

The second caveat is that the typology presented in this paper does not address the problem of whether, and under which conditions, one type of arbitrary law-making is to be considered somehow conceptually or causally prior to another or whether we ought to prefer one type over another; nor whether such judgements are meaningful in the first place.

The first type of arbitrary law-making is the exercise of a power that exceeds the limits set by law by opting for an illegal choice. Illegal here means at odds with valid law, often of a superior level. This is a rather common and generic way to speak about ‘arbitrary law-making’, where “arbitrary” is synonymous with invalid.

Generally, arbitrary law-making of this first type (i.e. illegal practices) finds its most classical topos in the Platonic opposition between the empire of law and that of men (Statesman, 294a); or, in the terms of the U.S. Supreme Court, “a government of laws and not of men” (Marbury vs. Madison 1803, 5 US 137, 163).

The idea that arbitrary law-making could indicate illegal acts may result from the legal understanding of arbitrariness employed here, which is based on the conceptual pair of opposites arbitrary versus limited, giving the impression that arbitrary always indicates something that falls ‘outside the law’. Once we take into consideration the various subtypes of the general category of illegality, we find that the impression is more nuanced. These subtypes are relevant here.

The acts of an arbitrary authority, in the sense employed above, may refer either to its behaviour (practices in the strict sense) or to the norms, rules and decisions it issues (normative practice in the broad sense). Both kinds of act challenge (at least one of) the two main variants of the rule of law: (i), government by law, i.e. gubernaculum sub lege (GSL) and (ii) government through laws, i.e. gubernaculum per leges (GPL). GSL and GPL may be said to constitute, respectively, two subtypes of the first type of arbitrary law-making.

GSL is the doctrine that calls for political authority to respect higher norms. In contemporary constitutional democracy, the legislative branch of government ought to produce law that respects not only formal constitutional procedures but also substantial constitutional limits as to the content of the law, such as respect of fundamental rights (gubernaculum sub iuribus). GPL calls for political authority to express itself in the form of general and abstract rules. Today, this is what we refer to when, for instance, we claim that parliaments should respect values such as legal equality or rule by law, i.e. producing norms addressed to a type, class or category of people performing certain actions with many individual tokens, and thus avoid formulating ‘individual norms’: not doing so would amount to legislation through decrees, not laws. In the words of John Austin, when a command “obliges generally to act or forbearances of a class, a command is a law or rule” (Austin 2007, 38).

Therefore, arbitrary law-making of the illegal type can occur in two different ways. First, it may originate in a lack of respect for the given constitutional limits to the formulation of the law. Second, it can express itself through decrees inspired by contingent interests, stretching these beyond “reasonableness”. This meaning of arbitrary law-making is similar to the kind of behaviour and norms issued by what Ernest Fraenkel labelled the “prerogative state” as opposed to the “normative state”, governed by the rule of law. In the prerogative state, the ruler “acts not only independently of the law but, if necessary, in opposition to it” (Fraenkel 2006, 67).

In the first subtype of arbitrary law-making as illegal practice, we find law-making that observes the formal, procedural requirements of law-making within a given constitutional framework (e.g. the procedural rules of Parliament for enactment of laws), yet does not live up to substantial constitutional limits regarding the content of the law (the example par excellence is fundamental rights). In the second subtype of arbitrary law-making we find law-making that instead fails to live up to formal, procedural standards of law-making within a given constitutional framework (e.g. ruling by decree during a crisis).

The second type of arbitrary law-making is the exercise of a power that has exceeded the limits set by law, by opting for an irrational choice. It is this idea of arbitrary law-making that Timothy Endicott (2014) is thinking of when he defines arbitrariness as “lack of reason”. Irrational here means at odds with the standards of logic or the means-to-an-end calculus. The form of rationality that is implied here is Zweckrationalität, i.e. that which is instrumentally rational in the sense of Max Weber (1978, 25). This is perhaps the most common way that we understand ‘arbitrary law-making’, where ‘arbitrary’ is cast as synonymous with ‘ungrounded’ or ‘unjustified’ from the point of view of instrumental rationality, i.e. inconsistent or otherwise incapable of reaching its own goals.

This type of arbitrary law-making, referring to irrational policies, finds a classical topos in Leibniz’s theory of justice (1988). In asking whether “justice is arbitrary” Leibniz identifies two possible opposed views: on the one hand, there is the view associated with Thomas Hobbes, according to which justice is grounded only upon the will of the sovereign and the strength to enforce it; on the other hand, there is Leibniz’s own conception of universal reason (ratio) as a limit to the sovereign’s particular will (voluntas). For Leibniz, the legitimacy of a decision should be based on a rational demonstration of its moral correctness, to prevent political choices being made that are influenced by the interests or particularistic aims of the rulers. Leibniz’s conception of arbitrariness is perhaps the classical conception most closely linked to the contemporary analytical understanding of ‘arbitrary’, as that which is morally unjustified (see section 3.1.). As such, however, Leibniz’s notion is hard to employ within the legal setting (for the reasons given in the same section); it is best placed within the Natural law tradition from which it stems. Yet, we need not commit ourselves to any such theory of the nature of law. It is sufficient to adopt a deflated view of what rationality requires.

Hence, arbitrary law-making can be said to be of the irrational kind if it is internally inconsistent (at odds with the logical requirement of consistency) or suffers from inadequacy between the declared goals and the means deployed to reach these. This deflated view of the requirements of rationality is sufficient to highlight practices that appear to be irrational from the viewpoint of the recipients of the law (ex parte populi), albeit not necessarily from the viewpoint of the legislators (ex parte principis). The recipients or addressees of the law may face Kafkaesque situations, that are unintended consequences of law-makers’ choices.

The third type of arbitrary law-making is the exercise of a power that exceeds the limits set by law, by opting for discriminatory choices. An authority can be said to exercise power in discriminatory ways in (at least) two senses: It can violate the principle of equality “before the law” (égalité devant la loi) or it can violate the principle of equality “within the law” (égalité dans la loi). The two paradigmatic cases embodying these two options are (1) unequal treatment of two citizens motivated by the partiality of the court and (2) parliament passing discriminatory bills. Here we consider only the second meaning, since adjudication is not the object of this paper. Even since Justinian’s corpus iuris civilis first gave the principle of justice its canonical formulation in our legal systems, égalité dans la loi has been understood to relate to the very conception of the institutional facts that ground the law: on this understanding, the ‘equals’ are those members of a set to be treated identically, “with respect to their equality” (Aristotle, E.N. V), i.e. in so far as they have a determinate quality that the other members of the set share. Conversely, the ‘unequals’ to be treated unequally or non-identically ‘with respect to their inequality’ refer to members of different sets that, as such, do not share identical qualities across sets (e.g. one is to treat thieves and murderers differently).

One way in which discrimination occurs is of course through practices that are discriminatory according to the law. However, this would constitute an illegal practice and is not the type of arbitrary law-making that is referred to here. Indeed, the law prohibits certain discriminatory behaviours, and nonobservance of this prohibition challenges the rule that bans the behaviour in question. It is quite another matter when law-makers’ choose to read discrimination into the statuses of the law. Behaviours that embed discrimination into the law are not strictly speaking illegal, though they may be profoundly unjust. Discriminatory statuses are based on categories that in themselves challenge the basic equality principle of legal systems. This feature is what makes them unjust. Non-positivists may see discriminatory statuses as jeopardising legality tout court, yet where a distinction is maintained between illegality and injustice, discriminatory statuses jeopardise the principle of equality and not legality as such.

This said, it is still the case that discriminatory statuses endanger the basic principle of justice, which prescribes treating equals equally and unequals unequally. Discrimination, in fact, is not just any form of non-identical treatment; it is unequal treatment of the kind based on particular and unjustified reasons, as in the case of the parent who punishes only one of two children, guilty of the same fault, because the child is less dear to him (Hart 2002, 185).

This type of arbitrary law-making, in reference to discriminatory statuses, finds a classical topos in the debate over the ‘reasonableness of the law’ (Perelman 1978, Aarnio 1987, MacCormick 1999 & 2005, Atienza 2007, Bongiovanni, Sartor and Valentini 2009). Unreasonable law refers to cases where a difference of treatment in the law is insufficiently justified, in absence of reasons that in turn would justify giving no motivation (Cohen 2015). Unjustified reasons may creep into the law when law-makers institute different legal consequences on the basis of characteristics that are irrelevant for a given action class. Consider for instance that, before the revolt of the suffragettes, gender differences between men and women were held to constitute a reason not to enfranchise women. These same features are now considered irrelevant for the action class of enfranchisement, yet are still held to be relevant for other action classes (e.g. gender features are held to constitute sufficient reason for differentiated parental leave in many countries).

A law can thus be considered unreasonable – i.e. constitute discrimination, and thus be arbitrary – if two (or more) people are treated differently without there being “sufficient reasons” for making a difference between them. A typical way in which the lack of sufficient reason manifests itself is by referring to certain features that are irrelevant for determining whether or not the individual has the ability to enjoy or exercise the rights and obligations deriving from the status to be attributed. Strictly speaking, “arbitrary” qualifies the acts of the authority that creates a discriminating (i.e. insufficiently motivated) status in the law. A bill that for example would treat brown-haired thieves differently from fair-haired ones would be arbitrary in that the naturalistic feature – hair colour – is not reason enough to justify differentiated legal treatment when it comes to punishing thieves, even though other naturalistic features – like cognitive abilities – might be relevant (e.g. for extenuating circumstances).

The limits of the power to construe categories of ‘equals’ are of course always debated in practice, although such disagreement does not constitute an objection against the distinction in principle. At the heart of the problem of discrimination lies the question of whether a factor relevant in one situation is also relevant in another situation, rather than determining which factors are relevant for a given decision-making situation (Lippert-Rasmussen 2014; Khaitan 2015). Unreasonable or discriminatory rules could hence be said to be arbitrary in two different ways. These two ways form two subtypes of arbitrary law-making of the third kind. On the one hand, unreasonable rules are arbitrary in this third sense because they protect the particular interests of those who derive their preferential or privileged treatment from the existence of group discrimination; on the other hand, unreasonable rules are arbitrary in this third sense because their justification is based on refutable arguments.

Finally, it is worth stressing that the typology canvassed may also be of interest for adjudication practices. From the perspective of legal reasoning, one needs to distinguish between being confronted with an irrational or non-sensical provision (e.g. to command a and non-a at the same time), an “illegal” provision that can be overruled by a higher court and a discriminatory provision which may be debatable on the basis of substantial principles in a legal system, yet still requires further qualification to be distinct from legitimate use of discretion.

It is noteworthy that much good research done in contemporary legal philosophy on vagueness and legal indeterminacy has hitherto not been systematically connected to studies of arbitrary power in political philosophy. Yet there are reasons to think unlimited powers may be inclined to make a broader use of discretion in law-making than other forms of authority would be. After all, as Cardinal Richelieu (1641) famously pointed out, “if one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged.” Whether unlimited power is likely to lead to a broader use of discretion in law-making than other forms of authority remains an open empirical question. Mindful of such further developments, the purpose of the rest of the paper is not to tease out what each form of arbitrariness could imply for adjudication practices. Rather, it is dedicated to stressing the value of the typology in relation to the field of migration and citizenship policy. This is warranted because legal theorists who have worked on the reasonableness of the law – like Perelman, MacCormick or Alexy – have not explored how arbitrariness appears in this policy field.

A set of policies relating to citizenship and border control can offer examples of arbitrariness as irrationality. Many Kafkaesque situations arise from the administrative procedures to which foreigners are subjected (Gargiulo 2017). Here we only give a few examples pertaining to the instrumental sense of incoherence as a mismatch between means and ends (i.e. inconsistency). The state sometimes uses blunt instruments to select whom to keep and whom not to keep. Some policies therefore appear irrational or inconsistent from the point of view of the applicant, who is often subjected to incomprehensible administrative practices, and not from the point of view of the law enforcement agencies. 

The so-called Safe Third Country Rules are an example of one such case. These rules stipulate that if asylum seekers pass through a safe country in transit to the country in which they claim asylum, they can be returned to the safe country. Safe Third Country Rules have become very popular in the EU. Germany, for example, revised its constitution in 1993 to exclude from its constitutional right to asylum anyone ‘who enters the federal territory from a Member-State of the EU or from another third state.’ The first concern of German immigration officials is to ascertain asylum seekers’ travel itineraries in order to determine their eligibility to file an application. The Dublin Convention treats all EU members as safe third countries, including transit states in Eastern Europe. “Because the core asylum countries in Northern and Western Europe are surrounded by ‘safe’ countries, it is very difficult for an asylum seeker to initiate an asylum claim at a land border of any of these states” (Price 2009: 211). The irrationality stems from the fact that it does not make sense to have an asylum regulation that admits people arriving by land if the land way access is effectively barred from being used for the purpose of presenting an asylum request.

Another striking feature of arbitrary rule in citizenship policy is the situation of many illegal residents (sans-papiers already present on the territory) who turn out to be de facto stateless because “many governments place high demands upon the return of nationals who have destroyed their identity documents in order to evade repatriation” (Ellerman 2009: 14), and “immigration officials often cannot procure travel documents if diplomatic relations between the two governments are highly hostile or nonexistent” (Ellerman 2009: 25). This means that many such people effectively end up in a legal limbo, producing incoherence in the law. They cannot stay, but they may not go. A case that made headlines illustrating this kind of untenable situation was that of Ruiz Zambrano, a Columbian national, “illegally resident” in Belgium since his asylum application was refused in 2000. Such a rejection, however, did not entail deportation: the notification order issued to him and his family included a non-refoulement clause stating that they should not be sent back to Colombia in view of the civil war in the country. Having minor children who had acquired Belgian nationality (because Belgian nationality is automatically given to individuals born in the country who would otherwise be stateless, and Columbian law does not recognise children born outside its territory) and having had for many years an ordinary employment contract, when Ruiz Zambrano lost his job and applied for unemployment benefits, he discovered that the Belgian National Employment Office refused to grant him the benefits, because he lacked a work permit that could be issued only to individuals enjoying the right of residence. This case was resolved by an intervention of higher law. The Tribunal du travail de Bruxelles in Belgium, decided in 2008 to refer to the European Court of Justice for a preliminary ruling. The case concerned inter alia the interpretation of fundamental rights in the EU, since the ECHR bans the deportation of children having the nationality of the state in question. Deporting the father, an illegal third country national, would de facto amount to depriving those children of the genuine enjoyment of the rights of EU citizens. In many cases, however, possibilities to call for the intervention of higher law are not given.

Moreover, these absurd situations are not reserved only for asylum seekers but for other migrants as well, including Italian citizens previously resident in South America who returned to their country of nationality. A citizenship-related example of such arbitrary law-making is a consequence of the Italian Bossi-Fini law:

The police stations argued that granting a work permit during the process of naturalisation was a violation of the ‘Bossi-Fini’ provision, because it formally introduced non-EU workers into the labour market beyond the quotas that had been established. However, these conflicts often ended with agreements of convenience based on common sense: people who have been granted a permit of stay for up to a year cannot be prohibited from working without eventually creating the conditions for public unrest. Quite reasonable, except that the decision taken by the Ministry of Home Affairs, in December 2006, adopted the strict legalistic interpretation given by some police stations, creating a ‘Kafka-like’ situation. According to the Italian government, the residents waiting for citizenship recognition ex iure sanguinis were Italian by birth and during the process of attesting their alleged citizenship status, they were granted a period of legal residence in the country on much more favourable terms than other non-EU citizens. However, then the privilege consists only in legal residence, which paradoxically does not entitle the person to access the labour market, where he or she continues to be considered a non-EU citizen (Tintori 2009: 64).

The irrationality here lies in the contradiction between the legal fiction implied in enjoying the entitlement of nationality ex iure sanguinis and still not being able to access the labour market legally in your “own” country.

In this category of “irrational” naturalisation requirements we should perhaps also list the naturalisation policy to become a Cypriote. The country has a relatively liberal policy for naturalising (seven years of residence and other minor requirements) but only extends permits of stay for four years for working purposes, making naturalisation a de facto  option only for rentiers.

Finally, arbitrary measures of the irrational type are those that have contradictory effects or appear to be irrational from a consequentialist standpoint: consider the fact that safe country lists also enable so-called chain deportation. “For example, in 2003 Germany regarded the Czech Republic as safe, the Czech Republic regarded Slovakia as safe, and Slovakia regarded Zimbabwe as safe! Slovakia also returned Chechen asylum seekers to Ukraine, which in turn has deported them back to the Russian Federation” (Price 2009, 221). The irrationality appears when the whole chain is taken into account.

Other impracticable measures are also in current use with the purpose to curtail the possibility for people to present asylum requests. One such case involves excessive limitations applied to filing deadlines. While the US deadline is very generous (within 12 months after entering the country), some other cases stand out as being nonsensical: for instance, until 2000, Slovakia had a 24-hour deadline and Bulgaria a 72-hour deadline. “In Slovakia the clock began ticking when asylum seekers first entered the country, even if only to pass through en route to a destination further West. If they were to return from their destination (…) they would have discovered that they had already missed the filing deadline (…). Moreover, rejected applicants further have only a very brief window within which appeals can be filed – as of at least 2000, in Germany, manifestly unfounded applicants had three days to appeal; in Belgium such port-of-entry applicants detained close to the port had only one day to appeal” (Price 2009: 212-13). What often renders such filing deadlines impossible to respect is that the appeal process requires gathering cumbersome and sometimes unattainable corroborative evidence. The burden of proving that corroborative evidence requested by the adjudicator is not available is often placed on the applicant.

A more recent example of policy that can be labelled arbitrary as irrational concerns the application of the principle of non-refoulement in the wake of the rapid spread of the COVID-19 virus worldwide. The legal implications of the current health emergency include measures to curtail the possibility of accessing territory and presenting asylum requests. Many states have adopted restrictive measures to limit free movement within their territories and across their borders. On 20 March 2020, the US Centers for Disease Control and Prevention, issued an order that suspended the entry of persons travelling from Canada or Mexico who require processing at the borders, regardless of their country of provenance. Many EU Member States have declared the state of emergency or exception to limit the entry of all non-nationals, pursuant to the EU Travel Ban put in place on 16 March 2020. Only Bulgaria, Ireland, Luxembourg, and Romania expressly clarified that persons in need of international protection or applying for protection for other humanitarian reasons are able to enter into the territory; the Netherlands, Portugal and Spain also allow entry but with restrictions (Carrera & Chun Luk 2020: Annex II). Italy, for one, closed its ports on 7 April 2020 pursuant to the view that

for the entire period of health emergency resulting from the spread of the COVID-19 virus, Italian ports will lack the necessary requirements to be classified a ‘Place of Safety’ under the definition of the Hamburg Convention on search and maritime rescue, for cases of rescue carried out by naval units flying a foreign flag outside the Italian SAR [Search and Rescue] area (Carrera & Chun Luk 2020: Annex II).

7. Arbitrariness as Discrimination

In its third meaning, “arbitrary” qualifies as a form of discrimination. In the policy area under scrutiny, such arbitrary law-making can take on many forms. The policy area is, generally speaking, plagued by low or no reason-giving. The unwillingness to offer reasons is often veiled under sovereignty or national security claims, and the public is left with no real insight into why the particular choices that were made were considered preferable to alternative ways of action. But sometimes public authorities do provide reasons for their provisions. Yet, reason-giving is not the same thing as justification. Lack of justification is central to this third kind of arbitrary law-making.

This category of arbitrary law-making hinges upon unequal treatment in the meaning described above in section 3.2. In this category, the reason why the rules are discriminatory does not simply depend on a lack of reason-giving; nor on the unwillingness of public authorities to motivate the choice of a given criterion used for making a determinate distinction in the law. Here, the rules are discriminatory because they fail to consider relevant differences. Grouping individuals together who ought to have been treated differently – by selecting a criterion they have in common and not paying attention to the differences – can also be a way to avoid making the appropriate distinctions that a case requires. In particular, grouping people based on provenance is a strategy for obtaining this effect. Provenance allows no insight into the individual situation. Distinguishing migrants based on provenance or port of entry for the purpose of asylum application admission seems to fall into this category of arbitrary rules.

Using such a blunt instrument equals discrimination when due care is not taken to distinguish the situations of the people involved. Arbitrary rules in this policy area are, for example, when you apply for asylum in Britain. An appeal can be accepted or rejected on the grounds of your nationality:

Many states adopt presumptions against claims filed by individuals from what are deemed to be ‘safe’ countries of origin. In 2004, 25 countries were on Britain’s ‘safe’ list. Countries added that year included Bangladesh, Bolivia, Brazil, Ecuador, South Africa, Sri Lanka and Ukraine (…). Rejected applicants from countries of origin deemed safe are subjected to an expedited adjudication process and have access only to non-suspensive appeals (Price 2009: 210).

This amounts to the creation of an unequal form of law. How can nationality be a reasonable ground for distinguishing between those who would benefit from an appeal and those who would not? Could it not be that one country might be deemed safe as far as risks for warfare are concerned, but not from some form of persecution? Could it not be that a certain group of people is subjected to severe risks in a “safe” country – even though most citizens are not – because of their religious beliefs, ethnic origins or sexual orientation?

Another case is the unequal treatment of refugees depending on their “port of entry”. In fact, why should the geographic location of the port of entry into a country constitute sufficient reason to distinguish between two categories of refugees? Port of entry discrimination among refugees also arises in cases of “internationalisation” of ports that creates the legal fiction that asylum seekers have not actually entered the national territory. In line with the legal fiction, their removal thus does not constitute a denial of their right to apply for asylum. Like many other countries, France designated areas of its airports to be ‘international zones’ where asylum seekers can be detained without the protections normally given under French law. What naturalistic feature does the Charles de Gaulle airport have that allows it to qualify as state territory for all purposes except asylum applications?

Distinction made on religious grounds may result in discrimination that is not necessarily ideologically motivated. Drawing on archival records from a representative sample of 4000 asylum applications filed in France from 1976-2016, Mathilde Emeriau’s award-winning work (2020) has provided new evidence on the determinants of asylum decisions. Linking archival records to detailed administrative data, she has shown that bureaucrats at the French asylum office initially discriminate against Muslims but stop after about a year on the job. In assessing potential mechanisms of discrimination, no support was found for the claim that discrimination is driven by bureaucrats’ preferences or ideology. Rather, discrimination occurred because bureaucrats underestimate the probability that Muslims are persecuted. Muslim applicants were 30% less likely to be granted asylum than Christian applicants who were otherwise similar. The discrimination was an effect of the unfounded beliefs concerning religious background and likelihood of persecution.

A more general form of “unequal treatment” emerges when no distinction is made between asylum seekers and other migrants: some policies are quite clumsy instruments, largely failing to distinguish between those who seek asylum in bad faith and those who are genuinely eligible. Such policies include reductions in the public benefits available to asylum seekers (cash transfers replaced with in-kind benefits), detention of asylum seekers, expedited proceedings, with no or minimal judicial review. Almost every country of asylum now has an accelerated decision-making and removal process for “manifestly unfounded” claims. One big problem with expedited removals is that those judging whether the claim is “manifestly unfounded” have no training in asylum and refugee law; for instance, they may fail to recognise that fear of domestic violence may qualify for asylum as persecution on the basis of gender.

Unequal treatment has also been noted in relation to implementation policies, an area of migration policy that is still understudied despite the so-called ‘deportation turn’ (Gibney 2008; Leerkes & Van Houte 2020). For instance, there seem to be racial profiling aspects related to deportation practices in Germany, where changes in the enforcement of deportation have been made following a change in the provenance of migrants:

Comparing the typical profile of Germany’s undocumented immigrants – Eastern European and former Soviet nationals who entered and/or worked illegally – with those of rejected asylum seekers, many of whom originate from Asian or African countries, it is evident that the administrative efforts required for asylum removals, in particular the procurement of identity documents, far outweigh the challenge of deporting undocumented immigrants, both in terms of legal proceedings and travel arrangements (Ellerman 2009: 98).

Yet Germany deports primarily asylum seekers and not undocumented aliens. The relative neglect of undocumented immigrants by law enforcement authorities has been reflected in the absence of specific administrative infrastructures designed for their arrest and repatriation. The discriminative feature derives from overfocusing on one group vis-à-vis another.

8. Conclusions
Our introductory semantic analysis of the term ‘arbitrary’, in relation to individual or collective agency, showed that, in relation to the power or authority of one person over another, ‘arbitrary’ takes on axiologically negative undertones. This explains a first, rather shallow way in which one may speak of arbitrary law-making in relation to migration and citizenship policy, where arbitrary simply indicates that which is disliked. This idea of arbitrariness as a rhetorical tool for stigmatisation was found to be unhelpful for understanding arbitrary law-making. Citizenship is a ‘core sovereignty’ area and migration a highly-contested political issue; thus, rhetorical definitions of arbitrariness abound, yet lead nowhere. Digging a bit deeper, two more sophisticated understandings of arbitrariness were uncovered: a philosophical understanding, where arbitrary is synonymous with contingent and an understanding more commonly employed in legal contexts, where arbitrary is the antonym of discretion. The first of these two understandings, while useful for debating certain moral matters in normative ethics, is less well suited for debating matters relevant in migration law and policy. More appropriate for this purpose is the second of the two non-rhetorical understandings. On this basis, a typology of forms of arbitrariness was fleshed out and applied to contemporary migration policy. The policy area was here broadly construed to include not only naturalisation processes, but also migration, asylum and refugee policies and more generally border control. The typology allows us to survey arbitrariness in a variety of ways. The types of arbitrary law-making were illustrated in relation to a series of embodiments of arbitrary law-making found in contemporary citizenship and migration policies. The examples were taken from a broad range of countries and were chosen for illustrative purposes only. Other cases could exemplify the different types of arbitrary law-making that the paper elaborates. The conclusion is that we need more work on arbitrary law-making in relation to migration policy; we have taken a step in this direction by offering a basic typology of forms of arbitrariness suitable for analysing citizenship and migration policies. The paper contributed to the debate on arbitrariness in migration policy by clarifying and differentiating among forms of abuse: (a) illegal practices, (b) irrational policies and (c) discriminatory statuses. This differentiation is paramount for developing ways of understanding arbitrary law-making and reducing the arbitrary rule by public officials in migration and citizenship policies