The Right not to Have Rights: A New Perspective on Irregular Immigration

• Date: 01 August 2019
• Author: Nanda Oudejans
• DOI: 10.1177/0090591718824071
• Published date: 01 August 2019
• Subject Matter: Articles

824071PTXXXX10.1177/0090591718824071Political TheoryOudejans
research-article2019
Article
Political Theory
2019, Vol. 47(4) 447 –474
The Right not to
© The Author(s) 2019
Have Rights: A New
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Perspective on Irregular https://doi.org/10.1177/0090591718824071
DOI: 10.1177/0090591718824071
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Immigration
Nanda Oudejans1
Abstract
In recent years irregular immigration has attracted increasing scholarly
attention. Current academic debate casts the irregular immigrant in the role
of the new political subject who acts out a right to have rights and/or as
the rightless victim who is subjected to violence and abuse. However, the
conception of the irregular immigrant as harbinger of political change and/
or victim reifies the persistent dichotomy between inclusion and exclusion.
It ignores that irregular immigrants are not by definition excluded from a
normal life and that numerous immigrants live in the interstices between
full legal inclusion and exclusion without democratic legal order being cast
to ruin. The question that underlies this essay is: What concept of law can
accommodate the unauthorized presence of immigrants (i) without reducing
them to bare life, struggling to survive and/or assigning them a political
agency and (ii) without taking recourse to the use of force and violence in a
zero-tolerance policy? To answer this question, this article draws on what
Agamben has coined the potentiality of the law and unpacks Judith Shklar’s
idea of different degrees of legalism.
Keywords
irregular immigration, potentiality, legalism, Agamben, Shklar
1Utrecht University, Utrecht, The Netherlands
Corresponding Author:
Nanda Oudejans, Utrecht University, Newtonlaan 201, Room 3C.23, Utrecht, 3584 BH, The
Netherlands.
Email: n.oudejans@uu.nl

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Political Theory 47(4)
Introduction: The Age of Irregular Immigration
A vast number of irregular immigrants live and work in our societies. Scholars
across the disciplines diagnose that the exercise of migration control over the
lives of irregular immigrants severely curtails them in their opportunities and
infringes upon their human rights. Irregular immigrants are commonly con-
ceived either as victims of a current system of law who need to be emanci-
pated into that system of law or as the new political subject that changes the
law. Alexander Somek rightly argues that “[t]he post-proletarian left has
increasingly cast the paradigmatically excluded group, namely people across
the borders who wish to be submitted to society, in the dual role of the victim
and harbinger of change.”1 The first perspective, the victim perspective,2
seems strongly informed by the political thoughts of Giorgio Agamben, as it
depicts the irregular immigrant as deprived of human rights and reduced to
bare life, struggling to survive; the second perspective is formed along the
lines of Hannah Arendt’s alluring phrase “the right to have rights.”
Yet the focus on the irregular immigrant’s suffering and/or political agency
accepts the inside/outside divide that is constitutive of democratic legal order
and its corresponding mechanisms of inclusion and exclusion. In The Citizen
and the Alien, Linda Bosniak argued that immigration largely shatters this
dichotomy and disrupts the common view that citizenship is “hard on the
outside and soft on the inside.”3 In this view, there is little contradiction found
in the jurisdictional division between bounded membership at the border,
where the immigration powers of the state reign, and universal citizenship for
all within a community’s boundaries. The one is committed to exclusion, the
other to inclusion. Bosniak asserts, however, that it is in the nature of immi-
gration to bring a state’s borders to bear on the inside4 such that a clear sepa-
ration between inside and outside, inclusion and exclusion becomes elusive.
This is clearest when the focus is on the situation of unauthorized immi-
grants.5 On one level, their territorial presence puts pressure on the idea that
the border coincides with a geographical line that separates one territory from
the other, as the immigration powers of the state to detect, arrest, and detain
immigrants penetrate deeply within a state’s interior. On another level, what
Bosniak calls the “introgression of the border”6 does not prevent irregular
immigrants from living in our societies.
Indeed, without denying the deplorable predicament of many unauthor-
ized immigrants (particularly rejected asylum seekers or displaced persons in
a refugee context), it should also be noted that irregular immigrants are not
always struggling to survive and are not by definition excluded from a nor-
mal life. On the understanding that unlawful immigrants do not constitute a
homogenous group, the movement of some irregular immigrants and their

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techniques of existence might well be seen as what James Scott calls state-
evading immigration.7 Immigrants who build fairly decent lives outside the
law8 or even willingly reject a subject position within the state do not, of
course, represent the whole story about immigrants without legal status. But
it is an untold story that calls into question the main presuppositions of the
academic debate that casts the irregular immigrant in the dual role of an
unprotected naked life exposed to sovereign violence and/or a new political
subject that acts out the right to have rights. In between these two options a
third possibility emerges: that of living in a state’s territory free of the threat
of violent removal but without being regularized in its legal order. The wager
of this article is that irregular immigration does not simply point to a broken
immigration system. Nor does it simply reveal what Nicholas de Genova
calls the shadowy “obscene” of the “large-scale recruitment of illegalized
migrants as legally vulnerable, precarious and thus tractable labour.” 9 Rather,
it will be argued that the large-scale presence of “illegal” immigrants reveals
something about the law that hitherto remained hidden or out of sight. The
question this article tries to answer is: What concept of law can accommodate
the presence of irregular immigrants (i) without necessarily reducing them to
a naked life struggling to survive or assigning them a political agency and (ii)
without taking recourse to force and violence to restrain the movement and
presence of irregular immigrants?
This article takes its point of departure in the reality of immigration out-
side the law.10 Section II explores this reality from the limited number of
immigrants who do not aspire for legalization even if they do want to settle
down in the destination country. State-evading immigration and the larger
conflicts it stands for challenges the state’s power to enforce its immigration
laws. The powerlessness of states to embrace and control immigrants is not
confined to those immigrants for whom avoiding the state is a real choice.
The immigration powers of the state are also tested by the activism of both
private and public actors that create spaces where irregular immigrants are
able to live. For example, public authorities sometimes engage in practices of
under-enforcement of immigration law, as in sanctuary cities in California,
Oregon, and Vermont where local authorities refuse to offer assistance to
federal immigration enforcement and keep irregular immigrants safe under
their jurisdiction.11
Section III analyses why, from the perspective of states, irregular immigra-
tion is believed to constitute a security threat that disrupts and threatens the
normal run of things and considers the normative implications thereof. In order
to prevent the chaos and disorder stemming from people trespassing immigra-
tion laws there are, at the end of the day, only two options: either irregular
immigrants are legalized, for example, by general or individual amnesty, or

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Political Theory 47(4)
they are excluded from the polity that requires they be removed from the terri-
tory. However, the reality of irregular immigration calls into question the main
axiom of immigration law and policies that there is either inclusion or exclu-
sion. Indeed, despite ever-restrictive measures of immigration control, states
simply fail to round up and remove all irregular immigrants from their territo-
ries.12 Importantly, this subverts governance and challenges the regulative
power of the law. Moreover, the “either inclusion or exclusion” logic is bound
to derail in violence.13 In recent decades we have witnessed an increasing crim-
inalization of illegal immigration, rising numbers of border police deployed
inside the territories of states, and a militarization of external borders to prevent
immigrants from crossing borders without prior authorization to do so.14
This sets the normative background of this article: If Western democracies
want to maintain their democratic identity under the rule of law, they face the
challenge to suspend the use of force and violence in what is officially called
the fight against illegal immigration. Section IV therefore unpacks what
Agamben has coined the potentiality of the law, by which he seeks to rethink
the relation between law and life. Following Walter Benjamin’s core insight
in Zur Kritik der Gewalt that the legal order’s intention “of preserving the law
itself” [die Absicht … das Recht selbst zu wahren]15 explains the passage
from law to violence as...