Wrongs, Rights and Regularization

Moral Philosophy and Politics 2016; 3(2): 187-222

36 Pages Posted: 15 Nov 2016 Last revised: 31 Aug 2017

Date Written: November 1, 2016

Abstract

In this paper, I examine arguments commonly made by both theorists and advocates on behalf of regularization of unauthorized immigrants in liberal democratic states. Most such arguments begin with the premise that the irregular immigrant has committed at least a pro tanto wrong against the state, but they then go on to maintain that this wrong should be regarded as overridden in some circumstances. I identify here both the initial premise of wrongdoing and several versions of the claim for its override. The key argument is one of "supersession": Generally speaking, supersession arguments posit the following 3 elements: 1) There was a wrong 2) but a subsequent change in circumstances 3) transforms that wrong to a not-wrong.

I examine elaboration of the supersession argument in theoretical and policy settings. I then identify alternatives in the discourse, including arguments I call "contemporaneous override" and "corrective override" arguments, as well as those that seek to challenge the premise of wrongfulness altogether.

Beyond offering this anatomy of moral argumentation in the field, I consider why the idea of immigrant wrongdoing is so central in these debates. Briefly put, the idea captures the normative force of the border once interiorized. The very existence of irregular migrants presupposes both exclusionary border rules and their incompleteness or failure. The wrongdoing frame becomes the default organizing response to this failure. Disputes over the meaning, significance, management and possible defeasement of immigrant wrongfulness demonstrate the enduring difficulties involved in accommodating states’ constitutive border norms with the more inclusionary norms prevailing within.

Keywords: rights, justification, irregular migration, override

Suggested Citation

Bosniak, Linda S., Wrongs, Rights and Regularization (November 1, 2016). Moral Philosophy and Politics 2016; 3(2): 187-222, Available at SSRN: https://ssrn.com/abstract=2869399

Linda S. Bosniak (Contact Author)

Rutgers University School of Law ( email )

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Camden, NJ 08102
United States
856-225-6403 (Phone)
856-225-6516 (Fax)

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