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A Just Criminalization of Irregular Immigration: Is It Possible?

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Abstract

The aim of this paper is to question, from the perspective of a principled theory of criminalization, the legitimacy of making irregular immigration (IM) a crime. In order to do this, I identify three main ways in which the political decision to introduce a crime of IM may be defended: according to the first, IM is a malum in se the wrongness of which resides in its being a violation of states’ territorial sovereignty; according to the second, IM is a justified malum prohibitum the wrongness of which resides in its being a violation of a justified immigration regulation; according to the third, IM is a malum in se the wrongness of which resides in its harmful consequences for receiving states’ citizens. My thesis is that none of these arguments succeeds in providing us with sufficiently good reasons to justify the use of criminal punishment to enforce the closure of state borders. As regards the first, I argue that it relies on a misleading conception of what is entailed by states’ territorial sovereignty, and that therefore it is unsound as an argument for the state’s right to control immigration (even though, were it sound, it would show IM to be a public malum in se, and thus a potential candidate for criminalization). With regard to the second, I argue that, be they legitimate or not, immigration regulations enacted by states cannot provide those would-be immigrants they aim to exclude with content-independent reasons to comply with them; and this is a necessary pre-condition to conclude that IM is a justified malum prohibitum. As regards harm-based approaches, I argue that the notions they rely on (such as collective/cultural harmfulness and precautionary responsibility) are completely unfit as criteria for criminalization. This leads me to the conclusion that, unless other more convincing arguments are provided for, IM should not be criminalized.

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Notes

  1. See, among others, Kanstroom (2004), Miller (2005b), Stumpf (2006), Ead. (2008), Legomsky (2007), Dauvergne (2008), Chacón (2009), McLeod (2012), Aliverti (2012), Ead. (2013), Franko Aas and Bosworth (2013), Spena (2014), Kubal (2014), Mitsilegas (2015), Morales (2015).

  2. I will not articulate in detail such a theory here. Suffice it to say that I refer to an approach roughly revolving around the following principles, among others: (a) crucial importance attributed to the liberties of individuals; (b) criminal responsibility as personal responsibility (that is, responsibility of individuals depending on the moral and social significance of their individual conduct); (c) (serious) harmfulness of conduct as a good—if not per se sufficient—reason to criminalize it; (d) (public and serious) wrongness of conduct as a necessary—though not sufficient—condition for criminalization.

  3. See, e.g., Husak (2008, 72–76).

  4. An explicit defense of the idea that freedom of movement—both within and across state borders—is a basic human right can be found, for instance, in Torresi (2010).

  5. Kant (1891, 101).

    I must be clear on the conceptual limits of this assumption. Since ‘membership is not established at the border’ [Cole (2010), 42], the right to international free movement, which I am referring to, is not the same as a right to immigration: it does not entail a right to membership in foreign communities, but (—to say it, once again, with Kant—) merely a ‘right of visitation’—that is ‘the Right of a stranger in consequence of his arrival on the soil of another country, not to be treated by its citizens as an enemy [—the Right] not to be dealt with in a hostile way.’ For a similar caveat, see also Benhabib (2004, 177) (‘First admittance does not imply automatic membership.’) (If we except the obvious difference that Kant speaks of hospitality in a world made up of nation-states, while Homeric Greece was an ‘oikos-based society’ [Adkins (1972), 18]—Kant’s view on this point clearly echoes the ancient Greek conception of xeinēia (rules of hospitality), so powerfully displayed throughout the Homeric poems, Iliad and, most of all, Odyssey. See Finley (1962, 115–120), Havelock (1978, Ch. IX, § 2), Derrida (2000), Curi (2010, Ch. 2, 3, 4).)

    This does not mean that I myself do not believe in the existence of a “right to immigrate”, but merely that I am not assuming it here.

  6. By which I refer to “natural”—not “political”—geography.

  7. Rousseau (1988, 34).

  8. I take the opposition between smooth and striated spaces from Deleuzeand Guattari (1987).

  9. See, e.g., Soja (1971), Gottmann (1973), Sack (1986), Agnew (1994), Paasi (2003), Elden (2013).

  10. O’Neill (2000, 59).

  11. See, for instance, Carens (1992) (there is ‘at least a presumption for freedom of movement from a liberal egalitarian perspective’); Hampton (1995). Contra, however, Miller (2005a) (challenging the ‘presumption that people should be free to choose where to live unless there are strong reasons for restricting their choice’).

  12. Both in the sense that it is a wrong of public concern, and in the sense that it wrongs the public as such—i.e., the state or the whole constituency of citizens. On “public wrongness”, see e.g., Duff (2007, 140–146).

  13. Actually, there is some scope for arguing that these approaches conceive IM not exactly as a “pure” malum in se, but as a “hybrid offense”—that is, ‘one category of offences that are neither purely mala prohibita nor purely mala in se: those that involve a more or less artificial, stipulative determination of a genuine malum in se’ (Duff (2002a, 102); the label “hybrid offenses” was coined by Husak (2010, 419)). While indeed, on the one hand, they are, as I said, based on the assumption that IM is a wrong in itself (since it violates certain moral rights held by states or by citizens independent of any legal regulation, or is intrinsically—and thus pre-legally—harmful to the receiving state’s citizens); it is clear, on the other hand, that this alleged—pre-legal—wrongness also requires to some extent to be specified by legal regulations: at the very least, the existence of a legal regulation of immigration specifying the conditions under which immigration is prohibited is a logical pre-condition of the very idea of “irregular” immigration. This is, however, a question of no particular interest for my discussion here; therefore I will disregard it in what follows and keep using the usual label of mala in se crimes.

  14. For a recent overview—from an international law perspective—of the most significant theories on territorial sovereignty, see Distefano (2010).

  15. Importantly, the claim I am here referring to as a (questionable) entailment of the state’s territorial sovereignty is not that of establishing the rules of membership in the community (citizenship, regular residence, and so on), but instead that of deciding who can—and who cannot—physically cross the state’s borders and enter its territory: physical—not political—inclusion/exclusion. This distinction is clearly correlative with the other one I mentioned earlier (in note 5) between a “right of visitation” (to which the state’s claim to physical exclusion of foreigners is opposed) and a “right to immigrate” (which is opposed instead to the state’s claim to decide on political inclusion/exclusion of foreigners).

  16. The “home analogy” (i.e., the idea that ‘the state is the institutional manifestation of a household’) has a long history, being one of the ‘basic modes of state governance [which] can be traced throughout the history of Western thought and practice.’ See Dubber (2005, 3).

  17. Plato (1991, Book IV).

  18. ‘though of greater stature and strength than the Natural, for whose protection and defence it was intended.’ Hobbes (1651, Intro., 1).

  19. For a very similar line of reasoning, see Simester and Sullivan (2005, 192–194) (arguing—against P.H. Robinson—that ‘burglary deserves its status independently as a serious crime’):

    Burglary is not merely an aggravated form of theft etc. It is a wrong in its own right. The trespassory entry by D not only exposes V to risk of the further crime; it also, in so doing, violates V’s private life.The strongest case of this—often subject to distinctive labelling or sentencing provisions—is where the premises are a dwelling-house. Interaction with and exposure to other members of society is integral to public life; conversely, our sense of identity and well-being as individuals depends upon our being able to reserve private space, from which other persons can be excluded. It is through controlling our private environment that we are able to have ‘breathing space’ from interactions with other people. […]

    An analogous if less powerful claim can be made for burglary of other buildings. One of the main functions of structures such as warehouses, offices, and the like is to help safeguard people and property by establishing a physical separation from the public environment.

  20. E.g., Walzer (2006, 57) (‘what is at stake is not only the lives of individuals but also the common life that they have made. It is for the sake of this common life that we assign a certain presumptive value to the boundaries that mark off a people’s territory and to the state that defends it’).

  21. A view of this sort can be found in Schmitt (2003): ‘even when the initial land-division establishes purely individualistic private ownership or common clan ownership, this form of property remains dependent on the common land-appropriation and derive legally from the common primeval act. To this extent, every land-appropriation internally creates a kind of supreme ownership of the community as a whole, even if the subsequent distribution of property does not remain purely communal, and recognizes completely “free” private ownership of the individual’ (45).

    For a critical discussion of the ‘connection between sovereignty (imperium) and property ownership (dominium)’ (a connection that ‘can be traced back to the feudal era’), see Kostakopoulou (2004, § 2).

  22. Cole (2000, 155). See also Carens (1987, 254): ‘Property cannot serve as a protection for individuals against the collective if property is collectively owned.’ (Notice that Carens is here articulating a Nozickian argument against closed borders: he is showing, in other words, ‘why the claim “It’s our country. We can admit or exclude whomever we want” is ultimately incompatible with a property rights theory like Nozick’s’).

  23. Walzer (2006, 55–57).

  24. See Nozick (1974, 322) (distinguishing between “face-to-face communities” and “nations”): ‘A face-to-face community can exist on land jointly owned by its members, whereas the land of a nation is not so held. […] the citizens of a nation do not jointly own its land.’ See also Isbister (1996, 58).

  25. Kelsen (1945, 218). See also Goodin (1992, 6) (on the ‘formal functions of international boundaries’: ‘They physically delimit the sphere of sovereignty. They define jurisdictions. They specify, literally, how far the writ of any given sovereign runs. Formally, frontiers merely mark the point at which one body of law gives way to another.’).

  26. I specify “pure” malum prohibitum, since, as I said, there is some scope for arguing that the other approaches on which I dwell in this paper (those—based on political anthropomorphism—already mentioned in the previous section and those I will scrutinize in the next section) conceive instead IM as a “hybrid offense”.

  27. Duff (2002a, 106).

  28. Duff (2007, 92).

  29. The proper role of criminalization, on Duff’s view, is not that of creating wrongness—that is, of providing us citizens with new content-independent moral reasons to refrain from the criminalized conduct—but that of “declaring” the “publicness” of certain pre-existing wrongs (of certain wrongs that are such prior to criminalization), announcing that they are the whole polity’s proper concern since they call into question the most crucial values on which our polity thrives. The fact that criminal law does not properly “prohibit” crimes entails that the very existence of a criminal norm cannot count as a moral reason to refrain from committing them: we have to refrain from them not “because it is the (criminal) law”, but exactly because of their pre-criminal wrongness. See, e.g., Duff (1998), Id. (2001, 56) ff., Id. (2002b).

  30. Duff (2007, 92).

  31. Duff (2002b, 54).

  32. It is only since 1980s that liberal political thought has begun to devote stable attention to the core questions of “membership in the political community” (do political communities have the right to select who to admit as members? And, if yes, should the exercise of this right be guided by principles of justice?). Since then, the literature on these topics has grown enormously. See, among many others: Ackerman (1980, Ch. 3), Walzer (1983, Ch. 2), Carens (1987), Id. (2003), Id. (2013), Gibney (1988), Barry and Goodin (1992), Schwartz (1995), Cole (2000), Calder et al. (2010), Miller (2005a), Id. (2013), Abizadeh (2006), Id. (2008), Wellman (2008), Id. (2010), Wellman and Cole (2011), Fine (2010), Fine and Ypi (2013), Pevnick (2011).

  33. It is instead the authority of Reason itself that directly compels (or should compel) the subject to act accordingly. See Arendt (1958, 87 ff).

  34. ‘For to have [practical] authority is to have one’s expression of intention as to the actions of others accepted as peremptory content independent reasons for action.’ Hart (1982, 258). See also Peters (1967, § 9, 10) (‘[w]ithin the sphere of decisions, pronouncements and other such regulatory utterances, authority is confined to those which are or must be obeyed simply because someone [—an auctor, an authority, an originator—] has made them’).

  35. Raz (1986, Ch. 1): ‘A reason is content-independent if there is no direct connection between the reason and the action for which it is a reason. The reason is in the apparently ‘extraneous’ fact that someone in authority has said so.’ (35).

  36. Kojeve (2004), Arendt (1958, 82), Wolff (1970), Popitz (2004).

  37. Duff (2010, 293–309, 301). See also Id. (2011), 131 ff., and in particular 138 (with specific reference to criminal law’s authority):

    any system of criminal law requires a political community whose law it is: a ‘we’ whose business the criminal law declares certain kinds of wrong to be, to whom those who commit such wrongs must answer. That is the ‘we’ over whom the law primarily claims authority; and since the criminal law is an aspect of the state, the ‘we’ must be the members of the polity whose state it is. (138)

    See also Duff and Marshall (2007, 231).

    For a critique of Duff’s account of the authority of criminal law, see Zedner (2013).

  38. Duff and Marshall (2007, 234) (emphasis added). See also Duff (2011, 142).

  39. ‘The practice of hospitality as you conceive it could not be unilateral. As with all hospitality, this practice, and particularly this practice, necessitates absolute reciprocity in order to be viable.’ Klossowski (1960).

    According to Émile Benveniste (1973, 75 ff.), the link between ‘hospitality’ and ‘reciprocity’ can also be traced in the very etymology of the word ‘hospitality’—which derives from the Latin hospes, whose ‘initial term’ is hostis. ‘We have to proceed from the equivalence of hostire = aequare, while the derivative redhostire is glossed as ‘referre gratiam’ (‘repay a kindness’) in Festus. […] A hostis is not a stranger in general. In contrast to the peregrinus, who lived outside the boundaries of the territory, hostis is ‘the stranger in so far as he is recognized as enjoying equal rights to those of the Roman citizens’. This recognition of rights implies a certain relation of reciprocity and supposes an agreement or compact. Not all non-Romans are called hostis. A bond of equality and reciprocity is established between this particular stranger and the citizens of Rome, a fact which may lead to a precise notion of hospitality. From this point of view hostis will signify ‘he who stands in a compensatory relationship’ and this is precisely the foundation of the institution of hospitality.’

    This same dynamic (of hospitality/reciprocity) also underlies the American-Indian notion of potlatch as well as the ancient Greek institution of xeinēia.

  40. See Duff (2011, 142 fn. 47).

  41. On the concept of “subjective security”, see Zedner (2009, 16–19).

  42. I take this concept in a broad sense, as encompassing common language, history, institutions, and so on.

  43. Indeed ‘the state is not merely […] a gathering of individuals striving to improve their lot, but rather […] a community struggling to preserve its distinctive character’, and ‘individuals have a right to preserve the uniqueness of their communal life.’ So Tamir (1993, 127).

  44. See e.g., Walzer (1983), Tamir (1993, 127), Miller (1995, 128–129), Dummett (2001, 19–20, 51). But see also—quite surprisingly, in my view—Feinberg (1988, 346 note 43).

  45. Miller (1995, 128–129).

  46. Woodward (1992, 70). See also Goodin (1992, 11).

  47. Barry (1992, 282).

  48. Woodward (1992, 68, 69–70). See also Isbister (1996, 63–64), Id. (2000, 633–635).

  49. Barry (1992, 282). See also Whelan (1988), Kymlicka (2001, 262–264).

  50. Feinberg (1988, 36).

  51. Feinberg (1988, 33).

  52. Postema (1987, 425–426). See also Feinberg (1988, 35–37).

  53. See e.g., Beccaria (1764, Ch. 8).

  54. See, e.g., Feinberg (1984, 225 ff.), Hirsch (1996, 265), Simester and Hirsch (2009, 102–104).

  55. Hirsch (1996, 265).

  56. But other excellent examples may be tax evasion or public bribery.

  57. The empirical evidence as to the effects of immigration on the receiving states’ economies, labour markets and welfare systems is indeed generally both scarce and controversial. See, e.g.,: Boswell and Straubhaar (2004), Entorf and Moebert (2004), Venturini (2004), Münz et al. (2006), Düvell (2011), Orrenius and Zavodny (2012). See also Isbister (1996), 59–60), and Abizadeh (2006), both remarking how some harm-based arguments against open borders run across empirical difficulties.

  58. In fact, even irregular immigration frequently has beneficial consequences on the receiving state. See, e.g., Düvell (2011).

  59. Sunstein (2005, 5). See also Castronuovo (2011), for some interesting insights into the way in which the “Precautionary Principle” is applied in criminal law contexts.

  60. Rawls (1999, 187) (with specific reference to the limitation of the liberty of conscience). See also Dworkin (2013, 243–245).

  61. Carens (1987, 259, 260).

  62. Carens (1992, 31).

  63. Benhabib (2004, 177).

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Acknowledgments

I presented this paper at the workshop on “Crimmigration and Human Rights”, Robina Institute of Criminal Law and Criminal Justice, University of Minnesota Law School, 18–19 October 2013. I would like to thank the organizers (Antony Duff and Steve Meili) for inviting me. I would also like to thank those who participated in the meeting for their very helpful comments. A particular thanks to Antony Duff for extensive and insightful written comments. I started writing this paper while I was Jemolo Fellow at Nuffield College, Oxford: many thanks to Nuffield College for having provided me with an ideal milieu to write a paper. While I was in Oxford, I also benefited from discussions and conversations with many colleagues: among others, I would like to thank those who participated in the meeting of the “Criminal Law Discussion Group”—12 June 2013 (and in particular, Lucia Zedner for arranging it) and Ana Aliverti, by whose competence in matters of crimmigration I have profited very much in writing this contribution. Last, but not least, many thanks to all those participating in the meeting of the “Criminal Law Club”, at the University of Palermo—26 March 2014. The usual disclaimer obviously applies.

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Spena, A. A Just Criminalization of Irregular Immigration: Is It Possible?. Criminal Law, Philosophy 11, 351–373 (2017). https://doi.org/10.1007/s11572-015-9375-0

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