scholarly journals Why Does the State Have the Right to Control Immigration?

2017 ◽  
Author(s):  
Sarah Song
Keyword(s):  
National Identity ◽  
Political Theory ◽  
Final Section ◽  
Public Debate ◽  
The State ◽  
Immigration Law ◽  
Freedom Of Association ◽  
The Third ◽  
The Right ◽  
Normative Justification

Public debate about immigration proceeds on the assumption that each country has the right to control its own borders. But what, if anything, justifies the modern state’s power over borders? This chapter provides an answer in three parts. First, it examines the earliest immigration law cases in U.S. history and finds that the leading theorist they rely upon falls short of providing adequate normative justification of the state’s right to control immigration. In the second part, it turns to contemporary political theory and philosophy, critically assessing three leading arguments for the state’s right to control immigration: (1) national identity, (2) freedom of association, and (3) ownership/property. The third and final section offers an alternative argument based on the requirements of democracy.

scholarly journals Association, property, territory: What is at stake in immigration?

2017 ◽  
Vol 28 (1) ◽  
pp. 53-73
Author(s):  
Zoltán Miklósi
Keyword(s):  
Private Property ◽  
The State ◽  
Necessary Condition ◽  
Freedom Of Association ◽  
The Third ◽  
Territorial Jurisdiction ◽  
Territorial Rights ◽  
Immigration Debate ◽  
The Right ◽  
Association Property

It is often claimed that states have territorial rights, and that these rights include the right to exclude people who seek admission to their territory. In this paper I will examine whether the most defensible account of territorial rights can provide support to the right to exclude. I will discuss three types of theories of territorial rights. The first account links the right of states to exclude to the prior right of individuals to freedom of association, which is said to include the right not to associate and to dissociate. The second is a Lockean theory that grounds the territorial rights of states, and hence their right to exclude, in the prior right of individuals to private property in the land that constitutes the territory of the state. I argue that these accounts have independently implausible implications, regardless of their implications for the immigration debate. The third account is a Kantian theory that bases the territorial jurisdiction of states on individuals? duty to create, sustain and submit themselves to a shared system of law that is a necessary condition of guaranteeing their rights and of discharging their duties towards one another. I will argue that the Kantian account is superior to its current alternatives. However, I also suggest that it cannot ground a broad right to exclude.

Philosophical Justifications of State Power over Immigration

2018 ◽  
Author(s):  
Sarah Song
Keyword(s):  
National Identity ◽  
Political Theory ◽  
State Power ◽  
Self Determination ◽  
Golf Club ◽  
Freedom Of Association ◽  
Immigration Control ◽  
Collective Self ◽  
The Right ◽  
Normative Foundations

Chapter 3 turns to political theory to explore the normative foundations of the state’s power over immigration. It examines theories based on (1) the value of cultural and national identity, (2) the right to property, (3) freedom of association, and (4) freedom from unwanted obligations. The first three appeal to the value of collective self-determination. On the nationalist view, the fundamental imperative of immigration control is the preservation of culturally distinctive nations. The property argument derives the right of immigration control from the labor of citizens. The freedom-of-association argument regards citizens as parties to associations, such as marriage or a golf club, which have the right to refuse association with nonassociates. The freedom-from unwanted-obligations-argument does not directly engage with the idea of collective self-determination. I argue that each of these theories falls short of providing a convincing theory of state authority over immigration.

Is There a Right to Free Movement across Borders?

2018 ◽  
Author(s):  
Sarah Song
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Free Movement ◽  
Individual Freedom ◽  
Freedom Of Association ◽  
Human Right ◽  
Freedom Of Movement ◽  
The Third ◽  
The Right ◽  
Logical Extension

Chapter 6 examines three rights-based arguments for freedom of movement across borders. Three rights-based arguments have been offered in support of freedom of international movement. The first claims that freedom of movement is a fundamental human right in itself. The second adopts a “cantilever” strategy, arguing that freedom of international movement is a logical extension of existing fundamental rights, including the right of domestic free movement and the right to exit one’s country. The third argument is libertarian: international free movement is necessary to respect individual freedom of association and contract. This chapter shows why these arguments fail to justify a general right to free movement across the globe. What is morally required is not a general right of international free movement but an approach that privileges those whose basic human rights are at stake.

Subaltern Migrations and the State

2017 ◽  
Author(s):  
Philipp Zehmisch
Keyword(s):  
Final Section ◽  
Social Engineering ◽  
The State ◽  
Penal Colony ◽  
The Third ◽  
Dynamic Relationship ◽  
Historical Processes ◽  
Subaltern Agency ◽  
History Of ◽  
Media Reports

This chapter considers the history of Andaman migration from the institutionalization of a penal colony in 1858 to the present. It unpicks the dynamic relationship between the state and the population by investigating genealogies of power and knowledge. Apart from elaborating on subaltern domination, the chapter also reconstructs subaltern agency in historical processes by re-reading scholarly literature, administrative publications, and media reports as well as by interpreting fieldwork data and oral history accounts. The first part of the chapter defines migration and shows how it applies to the Andamans. The second part concentrates on colonial policies of subaltern population transfer to the islands and on the effects of social engineering processes. The third part analyses the institutionalization of the postcolonial regime in the islands and elaborates on the various types of migration since Indian Independence. The final section considers contemporary political negotiations of migration in the islands.

Termination for Breach of Contract

2020 ◽  
Author(s):  
Stannard John E ◽  
Capper David
Keyword(s):  
Final Section ◽  
Breach Of Contract ◽  
The Third ◽  
Specific Performance ◽  
The Subject ◽  
Key Topics ◽  
English Law ◽  
The Right ◽  
Legal Consequences

The aims of this book are to set out in detail the rules governing termination as a remedy for breach of contract in English law, to distil the very complex body of law on the subject to a clear set of principles, and to apply the law in a practical context. This book is divided into four parts. The first section sets out to analyse what is involved in termination and looks at some of the difficulties surrounding the topic, before going on to explain the evolution of the present law and its main principles. The second section provides a thorough analysis of the two key topics of breach and termination. The third section addresses the question when the right to terminate for breach arises. And the fourth and final section considers the consequences of the promisee's election whether to terminate or not. The final chapter examines the legal consequences of affirmation, once again both with regard to the promisee and the promisor, with particular emphasis on the extent of the promisee's right to enforce the performance of the contract by way of an action for an agreed sum or an action for specific performance.

scholarly journals Third Space of Communication in Soekarno's Thought

2021 ◽  
Vol 18 ◽  
pp. 158-169
Author(s):  
Fidelis Aggiornamento Saintio ◽  
Anang Sujoko ◽  
Wawan Sobari
Keyword(s):  
National Identity ◽  
Third Space ◽  
The State ◽  
The Third ◽  
Different Cultures

Viewed from the perspective of the third space of communication, colonialism is no longer a moment of the West’s domination over the East. The boundary between superiority and inferiority is removed by exchanges of influences. In addition, the third space of communication can also be used as a means of fusing different cultures and values. However, when applied in certain contexts, there are opportunities to enrich the idea of a third space of communication. The enrichment of this idea can be found in the state speech made by President Soekarno on June 1, 1945. Apart from formulating the foundation of the Indonesian state, the speech also aimed to unite the diverse Indonesian peoples into one national identity. Through a hermeneutics analysis, it was found that there was no need to fuse or remove diversity to form a third space of communication

The Secularized State

2020 ◽  
pp. 220-236
Author(s):  
Ernst-Wolfgang Böckenförde ◽  
Mirjam Künkler ◽  
Tine Stein
Keyword(s):  
Religious Freedom ◽  
Religious Faith ◽  
The State ◽  
Religious Communities ◽  
Constitutional Court ◽  
Freedom Of Association ◽  
Democratic State ◽  
Federal Constitutional ◽  
Freedom Of Belief ◽  
The Right

In this article Böckenförde contrasts his concept of open encompassing neutrality (found in most Scandinavian countries and in Germany) with that of distancing neutrality, as practised in France. While the latter champions negative religious freedom, open encompassing neutrality aims for a balancing of negative and positive religious freedom. Religious freedom for Böckenförde is multidimensional and includes the right to have (or not) a religious faith (freedom of belief), to affirm (or not) this faith privately and openly (freedom to profess), to exercise (or not) one’s religion publicly (freedom of worship), and to join together (or not) in religious communities (religious freedom of association). The correlate to these individual and group rights is the open and overarching principle of the state’s neutrality towards religion and other worldviews, entailing a prohibition on the state justifying law on religious grounds. Furthermore, it requires the state not to privilege religion over non-religion and one religious faith over another. Siding with the ruling of the Federal Constitutional Court (at a time when he was not a sitting judge), Böckenförde underlines that even religious communities who reject the democratic state have the right to be recognized and legally protected. What matters is not whether communities accept or reject the state, but whether they obey or violate its laws. This was the court’s view on the Jehovah’s Witnesses, and it must also be applied, Böckenförde writes, to religious fundamentalists who do not accept the secular order, as long as they do not violate any laws.

scholarly journals CONSTITUTIONALISM AND JUDICIALIZATION OF POLITICS: THE “JUDICIAL” RIGHT TO HEALTHCARE IN BRAZIL

2015 ◽  
Vol 3 (3-4) ◽  
pp. 358-393
Author(s):  
Bruno Irion Coletto ◽  
Pedro Da Silva Moreira
Keyword(s):  
Public Policy ◽  
Public Policies ◽  
Public Debate ◽  
The State ◽  
Fundamental Rights ◽  
Scarce Resources ◽  
The Public ◽  
Critical Understanding ◽  
The Right ◽  
The Way

The right to healthcare in Brazil is seriously protected by the courts. Judicialization of everyday implementation of this public policy is a fact. One explanation may be provided by the way judges understand the effectiveness of this right. People hold subjective right to individualized healthcare benefits, and so they hold standing to sue the state in order to achieve it, regardless any consideration of public policies. Through an analysis of the jurisprudence on this issue, this paper aims to provide a critical understanding not just about what is actually happening in Brazilian courts regarding healthcare, but also to criticize it. The conclusion is that a “strong” conception of constitutionalism and fundamental rights may revel itself as “weak,” from the standpoint of general equality. Judicialization ends up empting the public debate, leading the task of solving the distribution of scarce resources to a “gowned aristocracy.” 

The Meaning and Liberal Justifications of Israel's Law of Return

2009 ◽  
Vol 42 (3) ◽  
pp. 564-602
Author(s):  
Dan Ernst
Keyword(s):  
National Identity ◽  
The State ◽  
Reasonable Expectation ◽  
Jewish Immigration ◽  
The Status ◽  
The Law ◽  
The Right ◽  
Law Of Return ◽  
State Of Israel ◽  
Land Of Israel

The Article argues for a new assessment of the significance of Israel's Law of Return—that the Law of Return reflects not the sovereign prerogative of a state to control immigration, but the right of every Jew to settle in the Land of Israel. This understanding of the Law of Return explains why Section 4 proclaims that as far as the Law is concerned, the status of Jews born within the State of Israel is the same as those arriving to Israel from abroad. Resolving the anomaly of Section 4 dispels several misinterpretations of the Law of Return and the critiques of the Law which grow out of these misinterpretations. The Article also surveys and answers several liberal objections to Israel's policy of granting preference in immigration and naturalization based on ethno-national identity and presents an argument, for giving priority to Jewish immigration and naturalization based on the extra benefits (religious, political, and communal) that Jews receive from such immigration and naturalization. Finally, it is submitted that the State of Israel has an obligation of justice to admit Jews into the state as full citizens upon their demand, since this was a reasonable expectation of those in past generations who had contributed to the existence and maintenance of the state.

Minding the State — or a State of Mind?

1990 ◽  
Vol 23 (1) ◽  
pp. 25-55 ◽  
Author(s):  
BERT A. ROCKMAN
Keyword(s):  
Political Theory ◽  
The State ◽  
The Public ◽  
The Third ◽  
State Of Mind ◽  
Unique Definition ◽  
Public Cultures ◽  
State Organization ◽  
Decisional Authority

In political theory the state has been enjoying a conceptual rebirth even while some of its activities have been receding. The state, however, remains conceptually ambiguous and is thus molded into many different conceptual forms. Three of those forms are discussed in this article: the decision-making state, the production state, and the intermediary state. The first relates to the organization and architecture of decisional authority; the second to the public and distributive goods supplied by the state; and the third to the interconnections between state organization and the organizations of civil society. Although the state lacks unique definition as a concept, its value lies in bringing together the most important macro-level connections of the polity, the society, and the economy that cannot otherwise be adequately analyzed in isolation from one another. In particular, the state provides a focus for the study of statecraft within a given constellation of institutional and interest formations and public cultures. And yet statecraft itself cannot be detached from an analytic focus on the role of incentives, which must be effectively manipulated in order to preserve the fundamental functions of the state.

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