Patricia Mindus

This paper explores the contribution by the contemporary legal realist Hanoch Dagan. Dagan’s brand of realism defines law on the basis of its institutions or social practices, not of its norms or rules. The paper first provides a critical overview of this realist theory of law: It is not synonymous with the predictive theory of law, with Leiter’s theory of judges, or Frank’s “breakfast theory”. By focusing on the role of judges and the methodology of legal reasoning, we discover that the core difference between realism and positivism lies in the claim that law is affected by a strong form of indeterminacy, stemming from the plurality of legal sources, not from the open texture of legal language as expressed in rules; and we are also able to distinguish this form of realism from contemporary movements in legal theory, such as critical legal studies and law & economics. The normative dimension of realism is also addressed: This theory of law develops a specific concept of justice, on the ground of a cognitivist theory of value

Does the regulation of migration constitute a blatant case of arbitrary law-making? What is arbitrary law-making? And how does it manifest itself in contemporary migration policy? These are pressing issues that the scholars who come together in this special issue seek to engage with, by exploring international migration from the point of view of arbitrary power. When does legitimate state discretion slide into an exercise of arbitrary power? Since we cannot address what we do not understand, the urgency of the matter addressed in this special issue speaks for itself. Deciding who may enjoy the right of abode, the right to remain, the right to asylum and to citizenship is a key power of the state: it is a regal prerogative, an act of sovereignty, limited only by deliberately accepted commitments, such as the respect for human rights. This makes migration policy an exceptionally interesting ground to test the limits of discretion and the forms of arbitrariness. Power can be understood to be of a discretional nature if it acts freely within the boundaries defined by law, whereas arbitrariness qualifies discretional power exceeding the limits of law.

The article considers what arbitrary law-making is and what may count as arbitrary law-making in the field of migration policy. It contributes to the discussion of arbitrary law-making in relation to migration policy in two ways. First, it offers an analysis of arbitrariness, pointing out that rhetorical definitions abound – perhaps not surprisingly, given that migration is a highly-contested policy area – and argues for why transposing a conception developed in ethical theory to the law has high theoretical costs. An alternative conception is described and found to be better equipped to deal with arbitrary law-making in migration policy. It is argued that if we want to understand how arbitrariness plays out in the field of migration law – which is necessary to find ways to hinder its spread by the adoption of specific law-making practices – we first need to distinguish arbitrariness from legitimate choices of legislators. Secondly, a typology of forms of arbitrariness is fleshed out in relation to contemporary migration policy. The policy area is here broadly construed to include not only naturalisation processes, but also migration, asylum and refugee policies and more generally border control. The examples are taken from a broad selection of countries. They have been chosen for illustrative purposes only. Keywords: arbitrariness, discretion, arbitrary power, forms of arbitrary power, borders, migration policy, citizenship policy.

When the German constitutional court expressed itself in the Lisbon ruling, on the 30th of June 2009, the famous German newspaper Der Bild published the corrosive headline “the end of federalism”. The aim of this paper is to present and discuss the arguments of the Court concerning the nature of the EU as a confederation, the illegitimacy of further development towards a federal state and the determination of the EU’s ‘core competences’, in order to shed light on why, within the EU, the relationship between federalism and democracy appears to be so tense. The point is that the claim that the EU cannot legitimately become a federation without calling for the constituent power of the German people is grounded in a circular logic that ultimately depends on the definition of citizenry adopted. Two connected issues will thus be deepened. On one hand, we look at the problem of jurisdictional competence attribution, the ‘ultra vires’ and ‘domaine réservé’ doctrines. In particular, the adoption of criteria for determining the state’s core competences on the basis of the principle of essentiality will be assessed. On the other hand, the focus is on the theory of democracy that the German constitutional court embraces, according to which ‘the democratic legitimacy derives from the interconnection between the action of European governmental entities and the parliaments of the Member states’.

Reason and emotion are often cast as opposites. Yet emotion comes in a wide array of manifestations and has a variety of relations with its supposed opposite. Understanding emotion better is key to grasping how jurisprudence casts the relation between psychology and judicial decision making. Jurisprudents disagree on whether and when (lack of) emotion is a problem for decision makers in the justice system. The aim of this paper is to shed light on unarticulated assumptions in mainstream legal theory concerning this disagreement. The paper plots the different positions jurisprudents hold concerning the role of emotion in judicial decision making, regardless of where they stand on matters such the nature of law. The paper substantiates the claim that legal theorists often take an irrationalist approach to emotion but occasionally develop an alternative account that is closer to a cognitivist approach, the prime example of which is the claim that equity requires practical reasoning. Emotions are then cast as skills to be appreciated. The paper concludes that jurisprudence adopts a simplistic view of emotion. The study of the role of emotion has been hampered by the tendency to view emotions reductively. My classificatory effort warrants the conclusion that lack of emotion – understood as a skill in cognitivist terms – constitutes a problem for justice.

The Maastricht Treaty first introduced the status of EU citizenship. The twentieth anniversary of the signing of the Treaty, marked in 2013, was declared the European Year of the Citizen. Union citizenship has been understood as the world’s first post-national citizenship, although it is still complementary to national citizenships. EU citizens enjoy rights that have been expanded, modified, and reinterpreted in light of the EU integration process. The Court of Justice of the European Union has been a driving force in this process. This twentieth anniversary has provided the occasio for this special issue. Indeed, much has happened over the last two decades. The Maastricht Treaty entered into force on the heels of German reunification, and afterwards, a series of EU treaties followed: The Amsterdam Treaty, the Nice Charter of Fundamental Rights, the aborted constitutionalization process and the Rome Treaty in 2004, and the Treaty of Lisbon. The Euro took over former national currencies in 2002; the enlargement process led to today’s twenty-eight Member States. But the ratio of this special issue is based on other events as linked to the 2008 financial crisis, bailouts, the fiscal compact, and similar measures. In a nutshell, the timeliness of this volume is linked to the current financial disarray. Since prognosis presupposes diagnosis, no further words are necessary as to the importance of this task. It is self-evident that before taking action and preparing for the future, one needs to address the very first question: Nosce te ipsum...

The paper explores forms of arbitrariness in relation to citizenship and migration policies. Non-national disenfranchisement follows from certain migration policies, and these may be cast as an arbitrary form of domination, that may undermine political legitimacy. Political exclusion is the vertex of a chain of other forms of exclusion: the denizenship of the politically powerless is particularly bothersome because liberal-democratic systems lack incentives to promote their rights. We have singled out the specificity and quaintness of the argumentative strategy employed to sustain non-national disenfranchisement. It differs from other argumentations in favour of disenfranchisement because it is not framed in derogatory terms and shifts the burden of proof from the state over to the individual.

“Citizenship is the right to have rights” was famously claimed by Hannah Arendt. Te case of the ‘erased’ of Slovenia sheds new light on this assumption that was supposedly put to rest afer World War II. We lack a comprehensive paradigm for grasping what citizenship means today in and to our societies. My thesis is that there are currently three ways to understand the notion. These different views tend to merge and overlap in the today’s debate, furthering misunderstandings. I will account for different conceptions of the citizenship by looking at the opposite of citizenry. Te political model holds the subject in opposition to the citizen, entailing problems related to the democratic quality of institutions. Law and jurisprudence look at the citizenship by trying to limit the numerous hard cases arising in the world of migration where the opposite of the citizen is the alien and the stateless. While in social sciences the citizenship is the opposite of the exclusion and represents social membership. Therefore, my aim is to distinguish and clear out these three different semantic areas. This essay is presented in four sections: First, I briefly recall the case of the ‘erased’ of Slovenia, which presents us with one of the more poignant examples of statelessness in the today’s world, so their status can be easily related to the problems that the aforementioned theoretical shortcomings entail. The ‘erased’ had their residency permits and by extension, civil rights as well, revoked by the Slovene government in the aftermath of the break-up of Yugoslavia. This erasure was ruled to be unconstitutional by the Constitutional Court of the Republic of Slovenia but so far it has by and large remained only at that ruling, with little additional legal action, which has prompted complaints from the Ombudsman’s Office and Amnesty International. Tis issue is tied to some of the findings of Hannah Arendt, who claimed that human rights often proved to be ineffective when faced with significant numbers of people who were not citizens of any specific country. Although in the aftermath of WW2 measures to end this situation of statelessness were progressively taken by the international community, there are still cases of a legal vacuum where people could be deprived of their fundamental rights. And as long as human rights remain largely declarative and as long as there is a glaring lack of international agencies of judicial enforcement, we can claim that Arendt’s paradox of human rights has not been yet fully overcome. The second section focuses on discourse analysis of the citizenship. There is no doubt that the citizenship nowadays represents a much broader subject than it did only a couple of decades ago, however, if anything, this has only caused its meaning to become more vague. Since the late 1990’s scholars have increasingly directed attention towards interdisciplinary perspectives covering the fields of politics, sociology, history and cultural studies that move beyond conventional notions of the citizenship, but the understanding of the citizenship itself often lingers on traditional assessments, characterised by clear-cut disciplinary divides. This disciplinary entrenchment has led to the effect of deepening misunderstandings, and attempts to bridge the divide between various perspectives facing increasing difficulties. So it becomes clear that we lack a comprehensive model for understanding the notion of the ‘citizenship’, and to remedy that, rather than simply asking “what is citizenship?” as that would give no clear answer, we shall ask what is opposed to the citizenship. I will provide the answer to that question in the third section, where attention is directed to the composition of the three separate semantic areas that are connected to the term “citizenship.” These areas correspond to three separate figures of opposition: Te subject, the alien and the excluded, which form the foundation of three basic dichotomies. And from this we can extract various meanings of the citizenship: in the realm of political science, ’citizenship’ means the ‘non-subject’; in legal science, ‘citizenship’ means the ‘non-alien’; and in social science, ‘citizenship’ means ‘non-exclusion’ from participation in the social network of a group. I shall focus on the structure, content and origin of these dichotomies, and also on the kind of problems they are trying to resolve. Finally, I will point to an array of questions that the citizenship raises in the today’s complex society. Some of them deal with political rights of the Poles living in the UK, citizenship issues of the Russians in Estonia and the status of the Hungarian ethnic minorities in Romania, Slovakia and Serbia. Furthermore, we may notice an alarming surge of perverse effects that the customary legal perspective has on citizenship such as the increase of cases of statelessness and multiple nationalities, besides new phenomena such as the so-called “legal tourism.” On top of that, Europe is facing an increasing wave of nationalism and social integration issues, which come in wake of the general economic downturn, activism against the Bolkenstein directive and recent jurisprudence of the ECJ in the cases Rüfert, Viking Line and Laval. In light of all this we can conclude that citizenship studies require less ambiguous tools than those prevailing in literature. Te first step towards achieving this is to give up hoping for any understanding of “citizenship” that encompasses all the different meanings mentioned above. Te only way to take them all in is to use a very vague idea of “citizenship” that promotes unsuitable policies and no real solutions. So I suggest that we should rather focus on the tripartition scheme and discourse analysis discussed above, as they can be useful tools for decision makers so as to design as consistent policies as possible, and also for our shedding new light on transnational citizenship building and cross-state handling of status-related issues.

In this chapter I explore what happens to British nationals after Brexit in relation to EU citizenship. Some Union citizens will lose their “fundamental status” in 2019: all British nationals of exclusively British nationality. The problems faced by British citizens resident in member states of the European Union after Brexit and British nationals living in the UK are in focus. In the first section I tell my own life story: the tale of an EU citizen with the view to present the highlights of the derivative status of EU citizenship. This way we can appreciate better what Brexit challenges. In the second section, focus is on the legal uncertainty afflicting British citizens turning from expats to post-European third country nationals. In the third section, I discuss why we are facing an automatic collective loss of citizenship that will affect all British nationals of exclusively British nationality, irrespective of place of residence. In the last section, I present some ideas that have come up during the negotiations and that constitute a different, yet quite peculiar constitutional eyesore that has not yet received the attention it merits, that risk turning British nationals into a lesser kind of EU citizens.

The special issue covers both fronts by presenting a conceptual analysis of arbitrary law-making that sets out to typify its various meanings, along an empirical account of its actual functioning in legal and political practice. As arbitrariness becomes a pressing concern for lawyers, politicians and scholars attempting to grasp the discretionary powers of judicial and administrative authorities vis-a-vis legal subjects, its social impact as well as its political consequences must be taken into consideration in order to fully comprehend how central arbitrariness has become for a philosophical and a sociological account of law-making. Migration policy is precisely where arbitrariness vividly shows its face, and where its various forms unleash their most revealing implications. It is in this field that we must dig further if we want to know how this hitherto peripheral and surrogated dimension of legal decision-making stretches the leeway of legal officials to the very margin of legality, disclosing the social tension and the power struggle between their agency and the structures that condition and enable it.

Hassan Al Kontar appeared in major headlines in 2018. He had left his country of origin, Syria, and refused to return when the Syrian Civil War broke out. He had emigrated a few years earlier to the United Arab Emirates, where he worked as an insurance marketing agent. His work permit expired after the start of the conflict in Syria. So did his passport. Hassan remained in the Emirates illegally, out of fear of being drafted by the army upon his return to Syria. He was then arrested and sent to Malaysia where he was given a three-month tourist visa, but impeded from leaving the airport. Hassan ended up in a legal limbo. In a world like ours, where states jurisdictions exhaust the surface of the earth and determine the relationship between the state and its legal subjects, yet that pledges to protect the human rights of everyone, including non-nationals, how can these legal limbos in the international human rights regime be allowed? Some think there is a paradox at play here in that international human rights law gives a person a right to leave the state where he is physically present, regardless of nationality, but no matching right to enter elsewhere. Others deny this to be the case. This article is not an attempt to add yet another voice pro et contra the wrongfulness of the alleged state of affairs in international law. Rather it seeks to clarify the disagreement by offering a systematic problem-setting. We show what the matter under dispute consists in and which theoretical commitments are necessary to commit to in either side of this debate. We do this in three steps. First, we offer an ecumenical description of the matter under normative dispute. Second, we show that the matter under dispute is unclear concerning the ratio materiae of the action-class regulated by the norms in question. Third, we draw the consequences of this circumstance for the conditions of truth of the opposing positions. It seems that the disagreement is rooted in the very description of the action-class that the norm purports to regulate: in a nutshell, it seems that while one side thinks that the action is a movement of one and the same body in space across the territorial jurisdictional lines of two state actors, the other side to the debate thinks that we are dealing with two actions, separate and separable institutional facts that refer to the individual’s position vis-à-vis a state.

This case study considers Internet exchange points as an example of governance processes in action. Internet exchange points are the points of connection between different Internet networks, which enable different networks to exchange traffic at a shared facility without cost to either party through a process known as “peering”. Three different IXP governance models representing large and influential IXPs are compared: the DE-CIX in Frankfurt, CAIX in Cairo, and KIXP in Nairobi. DE-CIX, the largest IXP in the world, is a subsidiary of the German Internet trade association eco, and is thus “owned” by the Internet industry in Germany. Though well functioning, this has meant that key stakeholder groups such as civil society, and the academic and technical communities are excluded from participating in discussions over policy decisions. In contrast, the Cairo Internet Exchange Point is run by a public authority, the Egyptian Ministry of Communications and Information Technology. Though it is governed by a broad set of stakeholders including private sector, government, and civil society representatives, its decision-making processes are somewhat opaque. Lastly, KIXP was founded by a Kenyan network engineer and is governed by a local trade association. While set up with multistakeholder coordination under the leadership of the private sector, its dayto-day operations and governance fall under private sector control. By tracing out the plurality of models used for IXP governance and comparing the processes of developing peering relationships, this case provides unique lessons for the governance process, particularly surrounding trade-offs between inclusiveness and effectiveness.