Nationality, Alienage and Constitutional Principle

Oxford Legal Studies Research Paper No. 08/2008

Law Quarterly Review, Vol. 123, pp. 417-445, July 2007

Notre Dame Legal Studies Paper No. 08-07

34 Pages Posted: 4 Mar 2008 Last revised: 27 Mar 2008

See all articles by John Finnis

John Finnis

Notre Dame Law School; University of Oxford - Faculty of Law

Abstract

It is an aspect of political liberty, and thus of our common good, that we must accept the risk that some of our fellow citizens, being left at liberty, will abuse that liberty and do us harm, leaving us to ex post redress. Justice does not require that we accept the same level of risk from non-citizens. Authority to exclude and expel non-citizens (non-nationals, foreigners, aliens), and to detain them pending, and in order to effect, their removal from the national territory, is an instrumental aspect of the common good. Governmental powers, even the most basic, can atrophy unless understood as rooted in constitutional principles which, like competing constitutional principles such as equality before the law or liberty of movement and association, are aspects of the nation's common good. Inattention to the place of the expulsion power in a web of principles of reciprocity, trust, and differential obligation to accept risk, together with inexplicable neglect of both conventional and statutorily mandated norms of statutory interpretation, led to a thoroughly mistaken set of judgments in the leading case, A v. Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68, decided by an almost uniquely large Appellate Committee of the House of Lords. All nine Law Lords overlooked their duty to interpret the statutory provision so far as possible as compatible with the Human Rights Act 1998 before declaring it incompatible. Even apart from that duty under HRA s. 3, there was available but unconsidered a reasonable interpretation such that the power to detain alien terrorist suspects had as its ongoing precondition a purpose, manifested in bona fide efforts, to deport them and to secure whatever arrangements with foreign governments might be necessary to make deportation lawful under the Chahal doctrine about real risk of torture or degrading treatment. The majority's arguments from irrationality and discrimination are manifestly unsound once the statute is interpreted as it should have been.

Suggested Citation

Finnis, John M., Nationality, Alienage and Constitutional Principle. Oxford Legal Studies Research Paper No. 08/2008, Law Quarterly Review, Vol. 123, pp. 417-445, July 2007, Notre Dame Legal Studies Paper No. 08-07, Available at SSRN: https://ssrn.com/abstract=1101495

John M. Finnis (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

University of Oxford - Faculty of Law ( email )

University College
High Street
Oxford, England OX1 4BH
United Kingdom

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