Etikk i praksis. Nordic Journal of Applied Ethics (2020),
Towards a Theory of Arbitrary Law-making in Migration Policy
Uppsala University, firstname.lastname@example.org
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.
Keywords: arbitrariness, discretion, arbitrary power, forms of arbitrary power, borders, migration policy, citizenship policy
Miserable is the slavery of that people among whom the law is either unsettled or unknown.
The positive element in laws concerns only their form of publicity and authority (…). Their content per se may be reasonable – or it may be unreasonable and wrong. But when right (…) is developed in detail, this analysis, because of the finitude of its materials, falls into the falsely infinite progress: the final definiteness, which is absolutely essential (…), can in this sphere of finitude be attained only in a way that savours of contingency and arbitrariness. Thus whether three years, ten thalers, or only (…) 2 4/5 years (…) be the right and just thing, can by no means be decided on intelligible principles – and yet it should be decided. Hence, though of course only at the final points of deciding (…) the 'positive' principle naturally enters law as contingency and arbitrariness. This happens and has from of old happened in all legislations: the only thing is clearly to be aware of it, and not be misled by the talk (…) as if the ideal of law were, or could be, to be, at every point, determined through reason or legal intelligence, on purely reasonable and intelligent grounds. It is a futile perfectionism to have such expectations.
Arbitrariness is detrimental to the legitimacy of any rule in a deep and decisive way. Yet, it is poorly understood in relation to citizenship and migration policy. This is regrettable because this policy area offers some interesting testing ground for thinking about what arbitrary law-making is and what may count as arbitrary law-making. Migration law warrants greater interest among legal theorists. While plenty of legal theorists engage with constitutional law, EU law, international law, WTO law, HR law and more, few legal and practical philosophers engage with migration law – an area of law that has until quite recently been marked by low status even among black-letter lawyers, notwithstanding its connection to the very lucrative area of international private law. The policy field is too often relegated to the obscure technicalities of administrative law and public security concerns, where sovereignty claims have a long-standing tradition of not needing to provide any reasons, let alone good ones. The State’s ‘sovereign right to exclude’2 is not seriously contested in contemporary international law. This makes migration law an interesting case to study for scholars interested in understanding how the lack of legal certainty plays out in arbitrary practices. By viewing citizenship and migration policies from the perspective of the rule of law, arbitrary law-making emerges in a new light.
A word on the nature of arbitrary rule is needed. “Arbitrary” – from the Latin word arbiter – is an adjective that qualifies an autonomous judgment or a free act. Since the Middle Ages, the debate on free will has pitted those who defend the libero arbitrio against supporters of the theory of predestination, the servo arbitrio; this is in modern terms a deterministic account of will formation. Notice that the notion of arbitrariness, once connected to agency, has axiologically positive and/or neutral undertones in discussions of free will. However, this radically changes when the term refers to a relationship between two or more people. Indeed, the axiologically positive and/or neutral undertones associated with the term when employed in relation to individual agency change when the term is used to refer to forms of agency involving more than one individual or concerning collective agency. Indeed, talk of an ‘arbitrary authority’ is indeed axiologically charged in negative terms. When referring to the relationships between several persons, the term becomes associated with notions quite different from that of free will: the lack of reason-giving, legitimacy, well-foundedness of the authority or institution or rule, or a decision marked by ‘arbitrariness’. In the classical Satire VI, Juvenal tells the story of a Roman matron who condemns one of her slaves to death without any reason: “‘Crucify that slave!’ says the wife. ‘But what crime worthy of death has he committed?’ asks the husband (…); ‘This is my will and my command: let my will be the voucher for the deed.’” This is a paradigmatic example of what we call an arbitrary decision imposed by one person on another.
Notice that this idea of arbitrariness as the illegitimate rule of one over another recurs in the contemporary republican debate on domination. According to Frank Lovett and Philip Pettit, a free person is “one who does not live under the arbitrary will or domination of others” (Lovett & Pettit 2009, 12).3 Locke already used “arbitrary” to define slavery as the condition under which a person is not only subjected to another’s will but to a will that is “inconstant, uncertain, unknown” (Locke 1982, 242). The arbitrary will refers, in this context, to judgments based on private interests, desires, moods or whims. The ban of arbitrary detention – the fundamental right of the Habeas Corpus tradition – embodies this freedom from others’ whimsical decisions and shows the importance of the notion of arbitrariness in the constitutional tradition. We can thus say that the expression “arbitrary power” typically refers to an authority which is free to act following nothing but its own initiative, without considering any limits or constraints. To use Montesquieu’s classical phrasing in De l’esprit des lois: “It has eternally been observed that any man who has power is led to abuse it; he continues until he finds limits” (Montesquieu 1989, 155).
Once we clarify that – in the semantic field where the reference is to collective decision-making and not simply individual will formation – it makes sense to oppose ‘arbitrary’ and ‘limited’, let us ask what it means for a decision of a collective agent to be ‘arbitrary’? The next section illustrates different interpretations thereof that are critical to distinguish between the philosophical and the legal understandings of arbitrariness
3.1. Arbitrariness versus Contingency: A Philosophical Legacy
Putting aside the generic rhetorical use of ‘arbitrariness’ as a normatively loaded term – the use of which aims to stigmatise a decision, rule or authority, where arbitrary basically means something pejorative – we find that a more refined way of employing the term recurs in the work of many contemporary analytical philosophers. In contemporary philosophy, a technical-analytical understanding is attributed to ‘arbitrary’. The term then refers to one of two possible meanings: (i) “morally arbitrary” as a synonym of ‘unjustified’ or (ii) a series of contingent elements. This latter meaning is the specific sense that contingency has acquired in the debate on moral luck initiated by Bernard Williams. In analytical philosophy and normative ethics associated with this tradition since then, ‘arbitrary’ means contingent or non-necessary. Both of these meanings are problematic when discussing the law in general and migration law in particular. When referring to collective decisions and rules with erga omnes validity, as in the case of the law, ‘arbitrary’ typically does not indicate an exercise of power that is morally unjustified or dependent on contingent factors beyond the control of the individual. This creates some confusion, and it is thus important to recognise that a philosophical understanding of arbitrariness exists that differs from the legal understanding.
Instead of transliterating notions developed in a quite different scientific context (ethical theory) and for quite divergent scientific purposes (rendering of the problem of moral luck), what follows will build on the legal understanding of arbitrariness
3.2. Arbitrariness versus Discretion: A Legal Legacy
Much has been said by legal theoreticians and administrative lawyers – particularly within the civil law tradition – about what characterises arbitrariness and how to distinguish it from discretion (e.g. Leibholz 1959, García de Enterría 1991, Igartua 1996, de Laubadère 1996, Ramón Fernández 1998, Mesquina 2003, Rebelo de Sousa and 2008, Ramón Fernández 2008, 2016). A commonly accepted reading is that arbitrary in the legal context means the opposite of discretion (Lifante Vidal 2003). When granted to administrative authorities by law, discretion involves the possibility of selecting between different yet equally legitimate solutions. This implies that a significant amount of power resides in deciding a particular case (Ragonesi 1996, 225).5 While discretion is a legally legitimate act of power, arbitrary exercises of power are not. On this reading, discretion is grounded in a norm of competence (e.g. Spaak 2003); for instance, the law gives a judge the competence to make a choice that falls within a predefined (discretionary) range, much in the same way that constitutional law commands legislators to make choices that fall within the predefined range of the constitution and bans acts in breach of it. An act that may be said to qualify as arbitrary, on the other hand, is not grounded in a norm of competence; rather, the opposite holds. An arbitrary act is arbitrary because it goes beyond the law. This is in line with the claim that arbitrary power is unbound or unchecked power or an exercise of power beyond the limits set by the law. Authority can therefore be understood to have a discretional nature if it acts freely within the boundaries defined by law (Hawkins 2002), and to have an arbitrary nature if it acts beyond the same boundaries. Arbitrariness is the expression of unlimited power, such as the power of the sovereign state in its dealings with those whom it does not believe it has reason to respond to.
4. A Triadic Typology of Forms of Arbitrariness
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.
Once we have acknowledged the
undertheorised distinction between
arbitrariness and discretion, and between
various modes of expression of arbitrary
power, it is easier to see how a legitimate
power may, in stretching its legitimate use
of discretion, fall into a categorically
different type of law-making: arbitrary
law-making. The multitude of ways in which
this crossing the line occurs remain to be
explored in relation to the policy area that
we now turn to.
5. Arbitrariness as Illegality
The aforementioned typology may help us distinguish different forms of abuse in the areas of citizenship and migration policy. Let us start by examining the first kind of arbitrary law-making.
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 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.
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).
It is clear that coastal States like Italy are bound by customary international customary law to rescue people in distress at sea. The principle of non-refoulement does not allow derogations. States may not choose to avoid fulfilling the requirements for being considered ‘places of safety’ for asylum seekers in order to avoid the positive obligations deriving from the principle of non-refoulement, namely the right to an effective asylum procedure, in the name of the current health emergency. Denying disembarkation or entry to the territory does not prevent spread of the virus if migrants are doomed to stay in potentially overcrowded camps at international borders or in a protracted situation of distress at sea. Such conditions are likely to worsen the precarious health conditions of the individuals concerned. There is no evidence suggesting that denying disembarkation would significantly help the national health system, especially not in Italy where disembarkation typically occurs in the southern regions, which are relatively unaffected by the pandemic. Emergency health measures can be enforced without jeopardising the non-refoulement principle by, for instance, imposing isolation or quarantine. Alternative solutions to denial of entry clearly exist. This example illustrates the bluntness of the tool employed, as well as its irrationality: it does not lead to a reduction in the number of infected individuals. As such, it is a case of irrational policy and hence a case of arbitrary law-making.