The Rule of Law and the Right to Stay: The Moral Claims of Undocumented Migrants

Abstract

What claims do illegal immigrants have to membership? Joseph Carens has argued that illegal migrants with long-term residence have a claim to national membership because they already are de facto members of local communities. This paper builds on the linkage between illegality, residence, and rights, but shifts the focus from the migrant to the state, and from humanitarianism to the rule of law. I argue that the rule of law, as expressed in the principle of legal certainty, provides us with an alternative justification for the regularization of resident undocumented migrants. The principle of legal certainty recognizes the right of individuals to make long-term plans for their lives by requiring that state action be reasonably predictable and non-arbitrary. Thus, as an expression of legal certainty, both civil and criminal codes have statutes of limitation that place a time limit beyond which most crimes and misdemeanours can no longer be prosecuted, and individuals can move on with their lives. Not only do these statutes recognize the individual’s right to make long-term plans for their lives, but, I argue, they also demand that the state cut its losses and accept the consequences of its failure to act in a timely manner. This paper contends that, in the absence of a statute of limitation on illegal entry, the deportation of settled migrants constitutes an arbitrary act of state power. The paper develops an alternative argument for legalization grounded in the principle of legal certainty and explores a number of judicial rulings to illustrate the argument’s normative logic.

Cite this work

No public copy is stored for this record, so only the metadata is cited.

Stored only when both papers are in the corpus — 35 citations exist upstream.

Papers that cite the same references — the relational fallback while embeddings are still backfilling.