The Democratic Legitimacy of Border Coercion: Freedom of Association, Territorial Dominion, and Self-Defence

Abstract:     
According to the democratic borders thesis, a state’s regime of border control is democratically legitimate only if the laws governing it result from political processes in which both citizens and foreigners can participate. This is because, to be democratically legitimate, the coercive exercise of political power must be democratically justified to all subject to it; and both citizens and foreigners are subject to a polity’s regime of border control. I defend this thesis against three objections. First, it might be argued that legitimate states have the right to close their borders thanks to a collective right of freedom of association, grounded in self-determination. I argue that such an argument, while grounding a negative claim-right against coercively imposed association, fails to establish a liberty-right to coerce others to prevent unwelcome association. Moreover, it misconstrues the proper collective subject of a right of self-determination: not only the persons whom state agents recognize as members, but all persons subject to the coercive exercise of political power. Second, one might object that citizens enjoy rights of dominion over the territory of their state, and may thus unilaterally refuse entry to foreigners. I respond that just as property laws, to be democratically legitimate, require democratic justification to those subject to them, so too must democratically legitimate border laws. Finally, one may object that the coercive exercise of political power may sometimes be legitimate even if not democratically legitimate. I concede this, but argue that the lack of democratic legitimacy imposes dynamic duties to enable democratic legitimization in the future.

Number of Pages in PDF File: 38

working papers series