Inherent Instability or Tipping of the Balance: Populism, Immigration and Liberal Democracies

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Abstract

This chapter investigates how the challenging questions and tensions caused by migrants and their universalist claims for inclusion, have been approached and resolved in liberal democracies. By regarding the development of populism as a real and dangerous political phenomenon that has a significant traction, the chapter asks whether populism adds something new to this approach and resolution. More specifically, does populism adds some distinctiveness that we should be more sensitive to?
To address these questions, I first describe some inherent instabilities in liberal democracies and accepts that populism is a response to these instabilities. The rights of migrants have been a site for contestation and tension in this way also exposing the instabilities in liberal democracies. In particular, the question how inclusive or exclusive the bounded national community should be, has always been contestable. By zooming in on the case law of the European Court of Human Rights, the chapter then examines three areas where migrant’s universalist claims for inclusion have been addressed in human rights law. With reference to the requirement that the state has to provide justifications for measures that affect individuals, the paper asks how the tensions between exclusion versus inclusion and particularism versus cosmopolitanism, have been adjusted. It concludes that the adjustment has been in favour of exclusion and particularism. The concern that arises then is that populism might further shape this adjustment to the point where the balance is completely tipped in favour of exclusion and statism.
Finally, the chapter draws on Dora Kostakopoulou’s work to explain that the question how inclusive or exclusive the bounded national community should be is a question that does not only concern the demarcation of the external boundaries of the community. The internal and the external are intertwined, which implies that exclusionary policies ultimately infect the ‘inside’ of the national community. As a consequence, anybody or any group can be framed as an ‘outsider’. The rise of populism has exposed this intertwinement. This means that the tipping of the balance in favour of exclusion and statism as to how migrants are treated, raises general concerns about the nature of the community and its organizing liberal values.
The chapter thus argues that migration lawyers should be more effective in exposing these general concerns and in utilizing some more general constitutional law techniques for empowering minorities. Migration law experts should not only focus on the weakness of migration law, but expand their knowledge to other legal fields and see the weaknesses therein. Finally, my chapter also argues that constitutional lawyers, on their part, should be much more sensitive to any developments in the area of migration law. Such developments can pose dangers of general nature that should not be ignored at their inception.

Detaljer

Författare
Enheter & grupper
Forskningsområden

Ämnesklassifikation (UKÄ) – OBLIGATORISK

  • Juridik

Nyckelord

  • Folkrätt, Migrationsrätt
Originalspråkengelska
Titel på värdpublikationMigrants' Rights, Populism and Legal Resilience in Europe
FörlagCambridge University Press
StatusAccepted/In press - 2021
PublikationskategoriForskning
Peer review utfördJa