Interrogating the legitimacy of immigration law (completed)

Caleb Yong


Philosophers and normative theorists of immigration have focused the bulk of their attention on the substantive moral evaluation of immigration law and policy. They ask when, if ever, restrictions on immigration are morally justifiable, and how the moral entitlements to social resources of three constituencies – migrants, citizens of receiving states, and citizens of sending states – might make certain immigration policies just and others unjust. Questions of this kind, while important, do not exhaust the range of moral questions that international migration raises. Another urgent set of questions is raised by the fact that there is fierce and inevitable disagreement about the substantive moral qualities of particular laws and policies regulating immigration. The political philosophy of immigration must therefore also contend with questions of the legitimacy of immigration law: When, if ever, is a state’s unilaterally enacted immigration law binding on its own citizens and would-be migrants, even when they believe that particular laws are misguided or even unjust? When is it morally justifiable to resist the implementation of particular immigration laws and policies? What kinds of measures may states properly take to enforce their immigration laws? In my current research project, I seek to answer these questions, at least for the case of constitutional democratic states. I will argue that the immigration law of such states is presumptively legitimate; however, this presumptive legitimacy is defeated when a given immigration law clearly conflicts with the receiving state’s duties to respect, protect, and defend human rights, or when a given immigration law lacks any rational connection to a permissible goal of public policy.

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