Scepticism About the Legitimacy of Immigration Law

According to what I call the liberal principle of political legitimacy, a coercive law must be justified to those subject to its requirements by reasons they can accept as persons with equal standing as rational and moral agents. If this justificatory burden is not discharged, the law does not morally bind those it addresses, and their compliance cannot be permissibly enforced. I argue that when states enact, apply and enforce immigration law, it subjects prospective immigrants to an exercise of political power which triggers the justificatory burden required by the liberal principle of political legitimacy. Asking whether this burden can be met, I survey the two most influential general theories of political legitimacy – consent theory and the natural duty of justice theory – as well as Wellman’s influential account defending the legitimacy of immigration law by appeal to an analogy with the rights of voluntary associations in civil society. I argue that none of these accounts can establish the liberal legitimacy of immigration law. Although the natural duty of justice view offers the most plausible account of political legitimacy, it must be amended to address the inevitable fact of reasonable disagreement about what justice requires. Since different persons subject to a regime of law will reasonably disagree about which specific laws are just or unjust, there must be some fair procedure for enacting law which takes into account the divergent views about justice of those whom the law coerces. The fact that prospective immigrants are not given any chance – let alone an equal or fair chance – to determine the content of the immigration laws which apply to them, though they are its main subjects, gives us a strong reason to doubt that immigration law is legitimate according to the liberal principle of political legitimacy.