Extending Hospitality? History, Courts, and the Executive

• Pages: 85-109
• Date: 15 January 2013
• Published date: 15 January 2013
• DOI: https://doi.org/10.1108/S1059-4337(2013)0000060008
• Author: Dagmar Soennecken

EXTENDING HOSPITALITY?

HISTORY, COURTS, AND THE

EXECUTIVE

Dagmar Soennecken

ABSTRACT

While many consider court involvement in immigration matters a given, in

liberal nation-states, there is actually a substantial degree of variation.

This chapter revisits two ‘‘critical junctures’’ in the early immigration

histories of Canada and Germany to show that institutions and policy

legacies are not just historical backdrop, but actually shaped the

strategies of political actors, subsequent institutional conf‌igurations, and

policy options for long periods of time, thereby revealing unintended

consequences, as well as alternative paths that the involvement of the

courts (and other actors) could have taken.

INTRODUCTION

In liberal nation-states, extending hospitality (and later, the right to stay) to

strangers has very much been a legal project. For the most part, the

executive employed laws and regulations at their discretion, motivated

primarily by foreign policy and economic interests, not to mention racial

Special Issue: Who Belongs? Immigration, Citizenship, and the Constitution of Legality

Studies in Law, Politics, and Society, Volume 60, 85–109

Copyright r2013 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2013)0000060008

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prejudices. Migration law, in this reading, functions as a classic instrument

of social control. While the precise extent of this control is much debated

(Cornelius, Martin, & Hollif‌ield, 1994), migration scholars often laud the

restraining effect of judicial decisions on governments who pursue an

immigration ‘‘control’’ agenda. This effect has become even more

pronounced lately whenever migration-related questions intersect with

anti-terrorism issues (Benvenisti, 2008). Although some writers note that

judicial inf‌luence (Joppke, 1999) varies signif‌icantly from one country to

another and that their jurisprudence has not always been rights-expansive,

little systematic research has attempted to explain the extent of this variation

(but see Legomsky, 1987).

In this chapter, I argue that despite a growing international rights regime

(Jacobson & Ruffer, 2003), important differences persist among countries in

the degree of the judiciary’s involvement. These differences have their

origins in the dominance of the judiciary-executive relationship in the

immigration policy area. This relationship, in turn, is embedded in a

political and legal system at the national level that is typically slow to

change (Kagan, 1997). By going back to the ‘‘stem’’

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of this relationship in

two ‘‘very different’’ countries, Canada and Germany (Przeworski & Teune,

1970), I show how the seeds of this relationship got planted, which ones

germinated and which ones could have sprouted if conditions had been

different. As Michael McCann (1994) notes, ‘‘different legal norms and

institutional arenas over time offer varying degrees of opportunity for

creative challenge.’’ Law’s ‘‘role in sustaining traditional hierarchies, and

hence in structuring potential strategies for resistance, varies signif‌icantly

among different terrains of struggle’’ (p. 9). Understanding these different

terrains is particularly important for pro-immigration activists. Although

they have continuously tried to inf‌luence the politics of belonging, the

degree of success they have had varies (e.g., Bibler Coutin, 2000; Calavita,

1998). Making sense of key differences in domestic opportunity structures is

thus critical for mobilization and strategizing.

‘‘Going back to the stem’’ may sound a bit like reading tea leaves. In fact,

historic institutionalists have long argued that the sequencing of historical

events impacts not only future institutional conf‌igurations but also the

potential for policy change. Fundamentally, historic institutionalism

attempts to ‘‘place politics in time’’ to show that ‘‘when things happen y

affects how they happen’’ (Pierson, 2000b, p. 73). Political actors are not

immune to this environment. Previously enacted policies (‘‘policy legacies’’)

have the power to imprint themselves on political actors. As a consequence

of this imprinting, some choices become more attractive to actors than

DAGMAR SOENNECKEN86