This is a review of the book Assessment of Responsible Innovation: Methods and Practices, edited by Emad Yaghmaei and Ibo van de Poel, London: Routledge, 2020. 394 pages https://doi.org/10.4324/9780429298998
本文是对Emad Yaghmaei和Ibo van de Poel编辑的《负责任创新的评估:方法与实践》一书的回顾，伦敦:Routledge出版社，2020年。394页https://doi.org/10.4324/9780429298998
{"title":"Assessing RRI","authors":"Alexander Myklebust","doi":"10.5324/eip.v15i1.4011","DOIUrl":"https://doi.org/10.5324/eip.v15i1.4011","url":null,"abstract":"This is a review of the book Assessment of Responsible Innovation: Methods and Practices, edited by Emad Yaghmaei and Ibo van de Poel, London: Routledge, 2020. 394 pages https://doi.org/10.4324/9780429298998","PeriodicalId":42362,"journal":{"name":"Etikk I Praksis","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2021-06-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86634753","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The aim of this article is to articulate and critically discuss different answers to the following question: How should decision-makers deal with conflicts that arise when the values usually entailed in ethical guidelines – such as accuracy, privacy, non-discrimination and transparency – for the use of Artificial Intelligence (e.g. algorithm-based sentencing) clash with one another? To begin with, I focus on clarifying some of the general advantages of using such guidelines in an ethical analysis of the use of AI. Some disadvantages will also be presented and critically discussed. Second, I will show that we need to distinguish between three kinds of conflict that can exist for ethical guidelines used in the moral assessment of AI. This section will be followed by a critical discussion of different answers to the question of how to handle what we shall call internal and external values conflicts. Finally, I will wrap up with a critical discussion of three different strategies to resolve what is called a ‘genuine value conflict’. These strategies are: the ‘accepting the existence of irresolvable conflict’ view, the ranking view, and value monism. This article defends the ‘accepting the existence of irresolvable conflict’ view. It also argues that even though the ranking view and value monism, from a merely theoretical (or philosophical) point of view, are better equipped to solve genuine value conflicts among values in ethical guidelines for artificial intelligence, this is not the case in real-life decision-making. Keywords: AI; ethical guidelines; algorithm-based sentencing; value conflicts
{"title":"Ethical guidelines for the use of artificial intelligence and the challenges from value conflicts","authors":"T. Petersen","doi":"10.5324/eip.v15i1.3756","DOIUrl":"https://doi.org/10.5324/eip.v15i1.3756","url":null,"abstract":"The aim of this article is to articulate and critically discuss different answers to the following question: How should decision-makers deal with conflicts that arise when the values usually entailed in ethical guidelines – such as accuracy, privacy, non-discrimination and transparency – for the use of Artificial Intelligence (e.g. algorithm-based sentencing) clash with one another? To begin with, I focus on clarifying some of the general advantages of using such guidelines in an ethical analysis of the use of AI. Some disadvantages will also be presented and critically discussed. Second, I will show that we need to distinguish between three kinds of conflict that can exist for ethical guidelines used in the moral assessment of AI. This section will be followed by a critical discussion of different answers to the question of how to handle what we shall call internal and external values conflicts. Finally, I will wrap up with a critical discussion of three different strategies to resolve what is called a ‘genuine value conflict’. These strategies are: the ‘accepting the existence of irresolvable conflict’ view, the ranking view, and value monism. This article defends the ‘accepting the existence of irresolvable conflict’ view. It also argues that even though the ranking view and value monism, from a merely theoretical (or philosophical) point of view, are better equipped to solve genuine value conflicts among values in ethical guidelines for artificial intelligence, this is not the case in real-life decision-making. \u0000Keywords: AI; ethical guidelines; algorithm-based sentencing; value conflicts","PeriodicalId":42362,"journal":{"name":"Etikk I Praksis","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2021-06-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86680216","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Artikkelen undersøker hvordan NIPT ble vedtatt implementert i det norske fosterdiagnostiske systemet gjennom en fagligpolitisk prosess mellom 2012 og 2017. Prosessen innebar at Nasjonalt kunnskapssenter for helsetjenesten, Helsedirektoratet (Hdir), Bioteknologirådet og Helse- og Omsorgsdepartementet (HOD) ga sine vurderinger av testen og sine råd omkring en eventuell implementering. Artikkelen finner at det i denne prosessen foregikk en forsiktig konvergens mellom de tradisjonelt helt ulike (og gjensidig utelukkende) måtene å forstå og å ramme inn fosterdiagnostikk på i Norge, dvs. i en ‘behandlingsramme’ og en ‘sorteringsramme’. Artikkelen argumenterer videre for at denne konvergensen var mulig fordi prosessen ble holdt innenfor de fagligpolitiske byråkratiene, og de ulike etatene var innstilt på å ‘samarbeide’ om å inkludere både kunnskap og verdier fra begge rammene i sine tilrådninger. Politikk for fosterdiagnostikk er imidlertid et svært politisk betent område i Norge, og denne konvergensen var et skjørt byggverk. Den sprakk da også opp i løpet av tre uker i mai 2020, da Fremskrittspartiet plutselig inngikk et ‘bioteknologiforlik’ med Arbeiderpartiet og SV etter at de hadde gått ut av Solbergregjeringen. Dermed endte spørsmålet om implementeringen av NIPT i Stortinget, hvor konvergensen i den fagpolitiske prosessen ble erstattet av de tradisjonelle frontene, og de gamle innrammingene igjen ble ‘satt i arbeid’. Artikkelen diskuterer avslutningsvis kort de bortimot uløselige dilemmaene disse innrammingene både representerer og produserer.
{"title":"Fosterdiagnostikk mellom medisin og etikk","authors":"Nora Levold, Marit Svingen, Ingrid Bruholt","doi":"10.5324/eip.v15i1.3816","DOIUrl":"https://doi.org/10.5324/eip.v15i1.3816","url":null,"abstract":"Artikkelen undersøker hvordan NIPT ble vedtatt implementert i det norske fosterdiagnostiske systemet gjennom en fagligpolitisk prosess mellom 2012 og 2017. Prosessen innebar at Nasjonalt kunnskapssenter for helsetjenesten, Helsedirektoratet (Hdir), Bioteknologirådet og Helse- og Omsorgsdepartementet (HOD) ga sine vurderinger av testen og sine råd omkring en eventuell implementering. Artikkelen finner at det i denne prosessen foregikk en forsiktig konvergens mellom de tradisjonelt helt ulike (og gjensidig utelukkende) måtene å forstå og å ramme inn fosterdiagnostikk på i Norge, dvs. i en ‘behandlingsramme’ og en ‘sorteringsramme’. Artikkelen argumenterer videre for at denne konvergensen var mulig fordi prosessen ble holdt innenfor de fagligpolitiske byråkratiene, og de ulike etatene var innstilt på å ‘samarbeide’ om å inkludere både kunnskap og verdier fra begge rammene i sine tilrådninger. Politikk for fosterdiagnostikk er imidlertid et svært politisk betent område i Norge, og denne konvergensen var et skjørt byggverk. Den sprakk da også opp i løpet av tre uker i mai 2020, da Fremskrittspartiet plutselig inngikk et ‘bioteknologiforlik’ med Arbeiderpartiet og SV etter at de hadde gått ut av Solbergregjeringen. Dermed endte spørsmålet om implementeringen av NIPT i Stortinget, hvor konvergensen i den fagpolitiske prosessen ble erstattet av de tradisjonelle frontene, og de gamle innrammingene igjen ble ‘satt i arbeid’. Artikkelen diskuterer avslutningsvis kort de bortimot uløselige dilemmaene disse innrammingene både representerer og produserer.","PeriodicalId":42362,"journal":{"name":"Etikk I Praksis","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2021-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86317395","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Bokanmeldelse av <> Forfattere: Simonsen, M. M., Rølsåsen, T., Eckbo, N., Dale, R. F., Barder, O. H. E. og Fjeldaas, E. Utgitt: Bergen, Fagbokforlaget. År: 2020. Sidetall: 134.
{"title":"Da mennesker regjerte kloden. Etikk, dinosaurer og juss for en verden i krise","authors":"Gitte Koksvik","doi":"10.5324/EIP.V14I2.3721","DOIUrl":"https://doi.org/10.5324/EIP.V14I2.3721","url":null,"abstract":"Bokanmeldelse av <<Da mennesker regjerte kloden. Etikk, dinosaurer og juss for en verden i krise>> \u0000Forfattere: Simonsen, M. M., Rølsåsen, T., Eckbo, N., Dale, R. F., Barder, O. H. E. og Fjeldaas, E. \u0000Utgitt: Bergen, Fagbokforlaget. \u0000År: 2020. \u0000Sidetall: 134.","PeriodicalId":42362,"journal":{"name":"Etikk I Praksis","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2020-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80332880","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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
{"title":"Towards a Theory of Arbitrary Law-making in Migration Policy","authors":"P. Mindus","doi":"10.5324/EIP.V14I2.3712","DOIUrl":"https://doi.org/10.5324/EIP.V14I2.3712","url":null,"abstract":"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. \u0000Keywords: arbitrariness, discretion, arbitrary power, forms of arbitrary power, borders, migration policy, citizenship policy","PeriodicalId":42362,"journal":{"name":"Etikk I Praksis","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2020-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89424956","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
‘Framing the Refugee’ looks at the power of representation of liberal political theory with regard to refugees. In the author’s view, legal and political arbitrariness lies in the representing of refugees as lacking agency. His key point is that liberalism fails to conceive of refugees as politically capable actors, and he is thus complicit in the arbitrary neutralisation of their emancipatory potential and participatory powers. This paper emphasises the moral justifiability of that state of affairs by seeking some answers to the question of why liberal political theory construes a concept of the refugee that does not contain any element of political agency. Most obviously, the author acknowledges that refugees perform a significant social role in contemporary societies and are hence active members in them. Nonetheless, they remain neglected in their political role by most political theory. What does it mean to have political agency for the author? It means to have the power of self-representation, that is, of being allowed and even enabled by a given legal system to bring about change in the political order, or at least to participate in that change. But the author also calls attention to the role of ‘theory’ in addressing this downside of the contemporary liberal democratic order. Theory becomes even more crucial at times of urgency, that is, when theorists have a moral responsibility to deepen their philosophical imagination, as Hannah Arendt so forcefully noted. The theoretical task of ‘re-framing’ the refugee entails reconfiguring political philosophy and its traditional categories of sovereignty, citizenship and nationality. The liberal inability to accommodate the political agency of many members of the political community – especially of non-nationals – is a sign of the historical contingency of the current rules of political membership. This inability makes evident the imperative of rethinking politics in ways that avoid the arbitrariness of treatment and aim instead at equality and justice. If political leaders can re-write the rules of membership to suit their own ideological agendas, the same demand should be addressed by – indeed demanded from – political and legal theorists. However, this is not as easy as it seems, according to the author. In his view, political theory is confronted with fundamental challenges, the most obvious one being that ‘theory’ is usually unequipped to defeat its own ‘topology’. Note that in saying this the author is raising a more pressing concern about arbitrary law-making: it may be that arbitrariness – especially the arbitrary treatment of aliens by the sovereign state and by liberal democracies in particular – is inscribed in the very DNA of liberalism. No matter how odd this may seem, the author advances the view that ideas, however creative of a new order, or transformative of a given status quo, never appear in "free form", and are instead deeply rooted in a structure that constrains our imagination.
{"title":"Framing the Refugee","authors":"P. Cole","doi":"10.5324/EIP.V14I2.3489","DOIUrl":"https://doi.org/10.5324/EIP.V14I2.3489","url":null,"abstract":"‘Framing the Refugee’ looks at the power of representation of liberal political theory with regard to refugees. In the author’s view, legal and political arbitrariness lies in the representing of refugees as lacking agency. His key point is that liberalism fails to conceive of refugees as politically capable actors, and he is thus complicit in the arbitrary neutralisation of their emancipatory potential and participatory powers. This paper emphasises the moral justifiability of that state of affairs by seeking some answers to the question of why liberal political theory construes a concept of the refugee that does not contain any element of political agency. Most obviously, the author acknowledges that refugees perform a significant social role in contemporary societies and are hence active members in them. Nonetheless, they remain neglected in their political role by most political theory. What does it mean to have political agency for the author? It means to have the power of self-representation, that is, of being allowed and even enabled by a given legal system to bring about change in the political order, or at least to participate in that change. But the author also calls attention to the role of ‘theory’ in addressing this downside of the contemporary liberal democratic order. Theory becomes even more crucial at times of urgency, that is, when theorists have a moral responsibility to deepen their philosophical imagination, as Hannah Arendt so forcefully noted. The theoretical task of ‘re-framing’ the refugee entails reconfiguring political philosophy and its traditional categories of sovereignty, citizenship and nationality. The liberal inability to accommodate the political agency of many members of the political community – especially of non-nationals – is a sign of the historical contingency of the current rules of political membership. This inability makes evident the imperative of rethinking politics in ways that avoid the arbitrariness of treatment and aim instead at equality and justice. If political leaders can re-write the rules of membership to suit their own ideological agendas, the same demand should be addressed by – indeed demanded from – political and legal theorists. However, this is not as easy as it seems, according to the author. In his view, political theory is confronted with fundamental challenges, the most obvious one being that ‘theory’ is usually unequipped to defeat its own ‘topology’. Note that in saying this the author is raising a more pressing concern about arbitrary law-making: it may be that arbitrariness – especially the arbitrary treatment of aliens by the sovereign state and by liberal democracies in particular – is inscribed in the very DNA of liberalism. No matter how odd this may seem, the author advances the view that ideas, however creative of a new order, or transformative of a given status quo, never appear in \"free form\", and are instead deeply rooted in a structure that constrains our imagination.","PeriodicalId":42362,"journal":{"name":"Etikk I Praksis","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2020-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48215748","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Many studies have highlighted a substantial "bureaucracy domination" in procedures relating to migrants’ access to territory. This form of domination is marked by highly discretionary and arbitrary practices, enacted by the administrative authorities of the state. Only minor attention, however, has been devoted to the arbitrariness of judicial decisions and to the judicial role in general in the numerous proceedings that increasingly affect the path of migrants. This path is the main object of this paper. The study focuses on Italian case law in expulsion and detention proceedings of irregular third country national citizens and asylum seekers and presents qualitative empirical research on decisions issued by the competent national authorities. The results have been analysed using a selection of theoretical tools, all referable to the general concept of the rule of law. The judicial decisions on pre-removal detention proceedings in two case studies are examined: the jurisprudence on detention of irregular migrants, in different offices of the Justice of the Peace in Italy; and the case law on detention of asylum seekers in the Ordinary Tribunal of Rome. The assumption underlying the research is that various conceptions of the rule of law may have different explanatory power when it comes to explaining the empirical results. To verify this hypothesis, the study proposes an overview of the main rule of law doctrines in the Western tradition of political and legal thought and applies the method of historical-conceptual analysis. As a result, the explanatory power of six theoretical models of the rule of law was verified against the data with the view to highlight the virtues and vices of the respective explanatory frameworks. This article reaches a two-fold conclusion. First, as far as the explanatory frameworks are concerned: the results of the two case studies cannot be fully explained by any of the models considered in this study. This fact alone casts doubts on the explanatory power of these theories and calls for further research on judicial decision-making more generally. Secondly, a key finding of the study regarding the notions of discretion and arbitrariness is that the judicial approach which assures the highest protection of rights is also the one that is most easily influenced by arbitrariness. The author argues that this paradox can be easily dissolved by paying attention to the plural dimensions of arbitrariness. If we consider arbitrariness from a legal point of view, i.e. as an illegal decision, it is unsurprising that the authority that most uses its discretionary powers is also the one most at risk of abusing these discretionary powers and hence of exercising arbitrary power. However, if we consider arbitrariness from the point of view of philosophical-political theory, i.e. as a form of domination characterised by the absence of sufficient justification, it is unsurprising that the judicial approach which assures the highest
{"title":"Arbitrary Decision-making and the Rule of Law","authors":"Francesca Asta","doi":"10.5324/EIP.V14I2.3491","DOIUrl":"https://doi.org/10.5324/EIP.V14I2.3491","url":null,"abstract":"Many studies have highlighted a substantial \"bureaucracy domination\" in procedures relating to migrants’ access to territory. This form of domination is marked by highly discretionary and arbitrary practices, enacted by the administrative authorities of the state. Only minor attention, however, has been devoted to the arbitrariness of judicial decisions and to the judicial role in general in the numerous proceedings that increasingly affect the path of migrants. This path is the main object of this paper. The study focuses on Italian case law in expulsion and detention proceedings of irregular third country national citizens and asylum seekers and presents qualitative empirical research on decisions issued by the competent national authorities. The results have been analysed using a selection of theoretical tools, all referable to the general concept of the rule of law. The judicial decisions on pre-removal detention proceedings in two case studies are examined: the jurisprudence on detention of irregular migrants, in different offices of the Justice of the Peace in Italy; and the case law on detention of asylum seekers in the Ordinary Tribunal of Rome. The assumption underlying the research is that various conceptions of the rule of law may have different explanatory power when it comes to explaining the empirical results. To verify this hypothesis, the study proposes an overview of the main rule of law doctrines in the Western tradition of political and legal thought and applies the method of historical-conceptual analysis. As a result, the explanatory power of six theoretical models of the rule of law was verified against the data with the view to highlight the virtues and vices of the respective explanatory frameworks. \u0000 This article reaches a two-fold conclusion. First, as far as the explanatory frameworks are concerned: the results of the two case studies cannot be fully explained by any of the models considered in this study. This fact alone casts doubts on the explanatory power of these theories and calls for further research on judicial decision-making more generally. Secondly, a key finding of the study regarding the notions of discretion and arbitrariness is that the judicial approach which assures the highest protection of rights is also the one that is most easily influenced by arbitrariness. The author argues that this paradox can be easily dissolved by paying attention to the plural dimensions of arbitrariness. If we consider arbitrariness from a legal point of view, i.e. as an illegal decision, it is unsurprising that the authority that most uses its discretionary powers is also the one most at risk of abusing these discretionary powers and hence of exercising arbitrary power. However, if we consider arbitrariness from the point of view of philosophical-political theory, i.e. as a form of domination characterised by the absence of sufficient justification, it is unsurprising that the judicial approach which assures the highest","PeriodicalId":42362,"journal":{"name":"Etikk I Praksis","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2020-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75257541","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The article considers the changes that have affected European border regimes of migration control as a testcase for discussing arbitrariness. The argument highlights the limited capacity of notions of arbitrariness defined as a departure from the rule of law to capture the ongoing conflict at the borders of Europe and brings, instead, to the foreground the ambivalent meaning of arbitrariness. By comparing Santi Romano’s classical theory of legal pluralism with recent analyses of legal globalization processes, arbitrariness emerges either as an authoritative attempt to impose a different order on society or as a means to contrast acts of resistance to border regimes. In both cases, arbitrariness forcefully blurs the limits between the ordered and unordered, indicating the paradoxical impossibility of excluding the law’s outside from the legal order. On these premises, the article advocates the importance of reframing the demand for open borders as a call for freedom of those who challenge the pragmatic order of migration regimes. Indeed, arbitrariness is necessarily limited when the legal order recognizes, to an extent, the agency and the claims of subjectivities that resist the dichotomy between inclusion and exclusion. Keywords: migration, arbitrariness, borders, legal order
{"title":"Arbitrary Law Making and Unorderable Subjectivities in Legal Theoretical Approaches to Migration","authors":"E. Rigo","doi":"10.5324/eip.v14i2.3537","DOIUrl":"https://doi.org/10.5324/eip.v14i2.3537","url":null,"abstract":"The article considers the changes that have affected European border regimes of migration control as a testcase for discussing arbitrariness. The argument highlights the limited capacity of notions of arbitrariness defined as a departure from the rule of law to capture the ongoing conflict at the borders of Europe and brings, instead, to the foreground the ambivalent meaning of arbitrariness. \u0000By comparing Santi Romano’s classical theory of legal pluralism with recent analyses of legal globalization processes, arbitrariness emerges either as an authoritative attempt to impose a different order on society or as a means to contrast acts of resistance to border regimes. In both cases, arbitrariness forcefully blurs the limits between the ordered and unordered, indicating the paradoxical impossibility of excluding the law’s outside from the legal order. \u0000On these premises, the article advocates the importance of reframing the demand for open borders as a call for freedom of those who challenge the pragmatic order of migration regimes. Indeed, arbitrariness is necessarily limited when the legal order recognizes, to an extent, the agency and the claims of subjectivities that resist the dichotomy between inclusion and exclusion. \u0000Keywords: migration, arbitrariness, borders, legal order","PeriodicalId":42362,"journal":{"name":"Etikk I Praksis","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2020-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75503390","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
"Territorial Presence As A Ground For Claims: Some Reflections" returns to political theory to assess the moral and legal position of those individuals who are inside the territory of liberal democratic states, but whose very presence has been unauthorised by the state. The author asks the question as to what their bodily presence means and does from a political perspective. The paper is part of a broader political phenomenology of territoriality in liberal national thought and puts emphasis on the idea that it is migrants’ bodily presence within the state’s territory that lies at the analytical heart of the conversation about irregular immigrants. What is paradoxical about territorial presence of unauthorised migrants is that such presence is simultaneously (1) the source of the offence states invoke as a justification for making them ‘illegal’; (2) the basis for protections the migrants may claim against the state for basic fair treatment while present; and (3) the ground for claims they make (or are made on their behalf) to remain present – i.e., to stay in the territory. Territorial presence is thus a fertile ground for the analysis of arbitrary law-making in migration. The author sets out to analyse some recent legal developments pertaining to the governance of irregular non-citizen immigrants in the United States. These developments bear on the project of theorising "immigrant justice" as resistance to the growing illiberalization of migration policy. In her view, the very existence of a class of people designated as irregular migrants within state polities presupposes that such polities maintain formal exclusionary border regimes and that in such regimes, some persons are predesignated as ineligible for entry. And even though those exclusion rules do not function to fully preclude entry and presence of such persons, states do not treat their arrival as an automatic basis for full membership either. Hence, irregular immigrants are territorially present in a state that purports to eschew that presence. The author then explores how the idea of “sanctuary” relates to the kinds of claims that both liberal humanitarians and immigrant justice advocates have been making over the last few years. These are claims which ground protection in what exponents cite as the overriding ethical significance of immigrants’ territorial presence – their already-hereness – as the basis for recognition and rights. In particular, the author makes the case that even though "sanctuary" provides a logic of safe harbour, it fails to end the predicament of constitutive based in border exclusionism. For her, the political, social, but also philosophical, struggle for the idea of border abolitionism requires a figurative sword that must go beyond sanctuary so that borders are not just mitigated, but radically deconstructed and even destroyed. The author takes this to be the vital imperative that confronts all legal and political theorists who must engage the normative cha
{"title":"Territorial Presence As A Ground For Claims: Some Reflections","authors":"Linda Bosniak","doi":"10.5324/eip.v14i2.3490","DOIUrl":"https://doi.org/10.5324/eip.v14i2.3490","url":null,"abstract":"\"Territorial Presence As A Ground For Claims: Some Reflections\" returns to political theory to assess the moral and legal position of those individuals who are inside the territory of liberal democratic states, but whose very presence has been unauthorised by the state. The author asks the question as to what their bodily presence means and does from a political perspective. The paper is part of a broader political phenomenology of territoriality in liberal national thought and puts emphasis on the idea that it is migrants’ bodily presence within the state’s territory that lies at the analytical heart of the conversation about irregular immigrants. What is paradoxical about territorial presence of unauthorised migrants is that such presence is simultaneously (1) the source of the offence states invoke as a justification for making them ‘illegal’; (2) the basis for protections the migrants may claim against the state for basic fair treatment while present; and (3) the ground for claims they make (or are made on their behalf) to remain present – i.e., to stay in the territory. Territorial presence is thus a fertile ground for the analysis of arbitrary law-making in migration. The author sets out to analyse some recent legal developments pertaining to the governance of irregular non-citizen immigrants in the United States. These developments bear on the project of theorising \"immigrant justice\" as resistance to the growing illiberalization of migration policy. In her view, the very existence of a class of people designated as irregular migrants within state polities presupposes that such polities maintain formal exclusionary border regimes and that in such regimes, some persons are predesignated as ineligible for entry. And even though those exclusion rules do not function to fully preclude entry and presence of such persons, states do not treat their arrival as an automatic basis for full membership either. Hence, irregular immigrants are territorially present in a state that purports to eschew that presence. The author then explores how the idea of “sanctuary” relates to the kinds of claims that both liberal humanitarians and immigrant justice advocates have been making over the last few years. These are claims which ground protection in what exponents cite as the overriding ethical significance of immigrants’ territorial presence – their already-hereness – as the basis for recognition and rights. In particular, the author makes the case that even though \"sanctuary\" provides a logic of safe harbour, it fails to end the predicament of constitutive based in border exclusionism. For her, the political, social, but also philosophical, struggle for the idea of border abolitionism requires a figurative sword that must go beyond sanctuary so that borders are not just mitigated, but radically deconstructed and even destroyed. The author takes this to be the vital imperative that confronts all legal and political theorists who must engage the normative cha","PeriodicalId":42362,"journal":{"name":"Etikk I Praksis","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2020-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46460278","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The administrative practices of officials who process the admission of immigrants show severe variations in the ways in which migration policy is enforced on the ground. For the author, inequality of treatment lies in the very hierarchy of tasks and services of what he dubs, following Pierre Bourdieu, the immigration "field". According to the author, the governments’ securitizing priorities favour the sort of suspicion towards foreigners that the media then reproduces, thus authorizing so-called street-level bureaucrats to act with great leeway with regard to immigrants. Under pressure, governments implement what the author calls a "trompe-l’oeil policy" that explores the ambivalence between international and domestic law: while the state enforces repressive laws that apparently comply with fundamental human rights, it leaves to low-ranking civil servants enough discretion to make those rights ineffective. This point is the author’s central contention. The arbitrariness of these officials is neither contingent nor accidental: it actually constitutes a purposive "front-line policy" to enlarge the discretionary power of street-level bureaucrats in charge of regulating admissions. Unequal treatment comes in three flavours in this context. First, officials are asked to ensure that each right granted to a foreigner will not threaten the national order, which means the economic, social and political order. They are therefore in a position to judge the suitability of each application in view of their own arbitrary interpretation of what such "threats" consist of. The question of discretionary power is in this way intimately linked to the problem of equality before the law. Second, the scarcity of material and human resources allocated to services in charge of welcoming migrants starkly contrasts with the expenditure incurred to deport foreigners. Inequality also arises from how agents perceive users and the leeway they have to implement the law. Third, inequality is related to foreigners’ abilities and means to challenge discretionary power, especially through the legal tools they use or through legal intermediaries. The author thus concludes that such "front-line policy" has increasingly been used as a weapon against migrants, especially since the early 2000s, when immigration and detention policies were generalized in France. More broadly, in Europe as well as in United States, immigration reforms have made greater use of detention and focused on enforcement rather than on hosting programs and services for asylum seekers. But they have also strengthened the role of legal intermediaries. Hence the need to investigate how discretionary power is challenged as it sheds light on the power relations between states and migrants. Keywords: foreigners, discretion, sociology, participant observation, front-line policy, illegalism, jobs, insecurity, legal intermediaries
{"title":"Discretionary power as a political weapon against foreigners","authors":"A. Spire","doi":"10.5324/EIP.V14I2.3479","DOIUrl":"https://doi.org/10.5324/EIP.V14I2.3479","url":null,"abstract":"The administrative practices of officials who process the admission of immigrants show severe variations in the ways in which migration policy is enforced on the ground. For the author, inequality of treatment lies in the very hierarchy of tasks and services of what he dubs, following Pierre Bourdieu, the immigration \"field\". According to the author, the governments’ securitizing priorities favour the sort of suspicion towards foreigners that the media then reproduces, thus authorizing so-called street-level bureaucrats to act with great leeway with regard to immigrants. Under pressure, governments implement what the author calls a \"trompe-l’oeil policy\" that explores the ambivalence between international and domestic law: while the state enforces repressive laws that apparently comply with fundamental human rights, it leaves to low-ranking civil servants enough discretion to make those rights ineffective. This point is the author’s central contention. The arbitrariness of these officials is neither contingent nor accidental: it actually constitutes a purposive \"front-line policy\" to enlarge the discretionary power of street-level bureaucrats in charge of regulating admissions. Unequal treatment comes in three flavours in this context. First, officials are asked to ensure that each right granted to a foreigner will not threaten the national order, which means the economic, social and political order. They are therefore in a position to judge the suitability of each application in view of their own arbitrary interpretation of what such \"threats\" consist of. The question of discretionary power is in this way intimately linked to the problem of equality before the law. Second, the scarcity of material and human resources allocated to services in charge of welcoming migrants starkly contrasts with the expenditure incurred to deport foreigners. Inequality also arises from how agents perceive users and the leeway they have to implement the law. Third, inequality is related to foreigners’ abilities and means to challenge discretionary power, especially through the legal tools they use or through legal intermediaries. The author thus concludes that such \"front-line policy\" has increasingly been used as a weapon against migrants, especially since the early 2000s, when immigration and detention policies were generalized in France. More broadly, in Europe as well as in United States, immigration reforms have made greater use of detention and focused on enforcement rather than on hosting programs and services for asylum seekers. But they have also strengthened the role of legal intermediaries. Hence the need to investigate how discretionary power is challenged as it sheds light on the power relations between states and migrants.\u0000Keywords: foreigners, discretion, sociology, participant observation, front-line policy, illegalism, jobs, insecurity, legal intermediaries","PeriodicalId":42362,"journal":{"name":"Etikk I Praksis","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2020-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41849092","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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