1.1 Introduction

This chapter investigates how 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 significant traction, the chapter asks whether populism adds something new to how migrants’ claims are approached in liberal democracies. More specifically, does populism add some distinctiveness that we should be more sensitive to?

To address these questions, I first describe some inherent instabilities in liberal democracies and accept that populism responds to these instabilities (Section 1.2). I then argue that the rights of migrants have been a site for contestation and tension, thereby exposing the instabilities in liberal democracies (Section 1.3). In particular, the question how inclusive or exclusive the bounded national community should be has always been contested. By zooming in on the case law of the European Court of Human Rights (ECtHR), the chapter examines three areas where migrants’ universalist claims for inclusion have been addressed in human rights law (Section 1.4). With reference to the requirement that states have to provide justifications for measures that affect individuals, I analyze how the tensions between exclusion versus inclusion and particularism versus cosmopolitanism have been adjusted. The conclusion of Section 1.4 is that the adjustment has been tipped in favour of exclusion and particularism. The concern that arises in the current circumstances is that populism might further shape this adjustment to the point where the balance is completely tilted in favour of exclusion and statism.

Having set out the main descriptive argument, the chapter draws on Dora Kostakopoulou’s work to explain that the question how inclusive or exclusive the bounded national community should be concerns more than the demarcation of the external boundaries of the community (Section 1.5). 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. These concerns relate to how the community responds to diversity and plurality more generally and, relatedly, how it draws lines between different social groups that might have ideas and values different from those that dominate. As a consequence, when migrants invoke universalist claims, the response necessary affects not only them (e.g. being kept in immigration detention or impossibility to enjoy family life) but also the political community that is the addressee of these claims.

1.2 Inherent Tensions in Liberal Democracies

The growth of populist political actors has presented various challenges to liberal democracies, to constitutionalism and to the rule of law.Footnote ¹ Political scientists have addressed populism and its manifestations.Footnote ² As it emerges from their scholarship, while populism can be difficult to define,Footnote ³ two broad approaches can be identified in the efforts to explain it. The first one implies recognizing a series of characteristics running through different examples of populist governments and versions of populism.Footnote ⁴ The second approach, the one adopted for the purposes of this chapter, is more narrow and understands populism as ‘a thin-centered ideology that considers society to be ultimately separated into two homogeneous and antagonistic groups, “the pure people” versus “the corrupt elite”, and which argues that politics should be an expression of the general will of the people.’Footnote ⁵ It follows from this definition that populism is an ideology that homogenizes the will of ‘the people’ and promotes it against the will of the elites.Footnote ⁶ It operationalizes emotion over reason and promotes a binary choice between accepting and rejecting a particular position, which undermines the ability of deliberation to reach a solution that might protect a range of diverse interests.Footnote ⁷ Populism moves political debates away from rational discussion; it invokes emotional outbursts, oversimplifies complex issues, challenges expertise, and prevents democratic deliberationFootnote ⁸ and the possibility for compromising among different interests in society.Footnote ⁹

Having clarified the definitional features of populism, it is important to note that constitutional scholars have warned against perceiving populism as completely foreign to liberal democracies. Constitutional scholars have rather maintained that populism responds to some inherent and ingrained instabilities and tensions in the structures of liberal democracies. This chapter aligns with this understanding: ‘populism’ is an ‘expression of deep-seated problems within existing democratic regimes’.Footnote ¹⁰ It is ‘a signifier of structural deficiencies and tensions within modern democracy, including in its constitutional design’.Footnote ¹¹ According to Walker, populism is not ‘wholly anomalous within our political tradition’;Footnote ¹² it is rather ‘a product of and response to a series of stress factors that are intrinsic to the modern constitutional condition’.Footnote ¹³

With some risk of oversimplifying, these stress factors are reflected in three interrelated dichotomies that are a cause of inherent tension and instability in liberal constitutionalism: the collective versus the individual, the universal versus the particular, and, finally, plurality versus unity.Footnote ¹⁴ As to the first one, liberal democracies search for a balance between the interests of the collective as a whole, on the one hand, and individual interests as protected by human rights law, on the other.Footnote ¹⁵ Human rights presuppose protection against excessive and disproportionate limitations in the name of collective interests. The questions how to find the right balance between competing interests (the collective versus the individual interests) and at which point individual rights are disproportionately burdened are not prone to easy answers.

As to the second dichotomy (i.e. the universal versus the particular), a balance is sought between aspirations in favour of some universal values that have global reach, on the one hand, and considerations of the specific conditions and distinctiveness of the particular political community, on the other. Universal values give a basis for human rights as enshrined in international instruments. At the same time, particularism and closure in defence of the interest of the particular political community might not be easily squared with universalist aspirations.Footnote ¹⁶

The third dichotomy (i.e. plurality versus unity) implies a tension between the plurality of identities that individuals within a state might have (in terms of, for example, ethnicity, culture, language, religion, gender, etc.), on the one hand, and the need for social cohesion and integrity of the whole so that ‘the people’ constituting the nation state can be formed. As Dora Kostakopoulou has observed, arguments in favour of ‘legitimate closure in order to preserve collective identity are […] underpinned by a static conception of identity’.Footnote ¹⁷ These arguments tend to ‘locate identity in some existing, inherent attributes of an entity, thereby overlooking the fact that identities (both personal and collective) are complex entities in process’.Footnote ¹⁸ Identities are complex since they ‘evolve, develop, become negotiated and re-negotiated within a context and in response to that context’.Footnote ¹⁹ At the same time, some form of social cohesion is necessary:Footnote ²⁰ ‘To function well a constitutional democracy must also be underpinned by certain social conditions’ that might imply ‘relatively homogeneous societies’.Footnote ²¹ Achieving some level of homogeneity and unity while at the same time respecting the plurality of identities might not be an easy task.

As Walker explains, liberal democracies are in a constant search for answers on how to approach these dichotomies and the tensions that they produce. There are no easy answers to any of them.Footnote ²² The division between inside and outside, a division that implies a degree of national closure and boundedness, can ensure some form of stability in finding a balance. Transnationalism, on the other hand, can challenge the stability.Footnote ²³ Transnationalism finds expression, for example, in the creation of transnational regulatory institutions (e.g. the EU),Footnote ²⁴ which might undermine the capacity of states to regulate their own economies.Footnote ²⁵ Transnationalism is also expressed in the work of international courts that make binding pronouncements as to whether, for example, the balance struck at national level between individual interests and community interests is compatible with human rights law.Footnote ²⁶

Another example of transnationalism that can strain the search for the delicate balance is migration: the movement of people who make claims to be included in another political community.Footnote ²⁷ It is not surprising therefore that migrants and their rights have been one of the major targets of populists.Footnote ²⁸ Rejecting migrants’ claims for inclusion and limiting migrants’ rights have been one of the flagship proposals of populism.

1.3 The Tension between Inclusion and Exclusion

As Section 1.2 suggests, with or without populism the rights of migrants are a source of tension in liberal democracies. Liberal constitutional democracies have been struggling with the question of how to accommodate migrants, who are not formally members of the host community (i.e. the nation state),Footnote ²⁹ without forsaking liberal values.Footnote ³⁰ Constitutional democracies are bounded communities of citizens with equal rights, and, on this account, the claims of migrants, as non-citizens, pose a challenge that destabilizes the construction of these communities. This construction presupposes some degree of closure and exclusion.Footnote ³¹ Migrants, on the other hand, by invoking universal values, make claims in favour of inclusion,Footnote ³² which would broaden the political community and affect its homogeneity. These claims feed the three tensions mentioned in Section 1.2.

Both the inclusion and the exclusion claims raised by migrants can find a basis in the applicable legal standards.Footnote ³³ Appeals for strict anti-immigration policies are ‘based on premises, and made with arguments, compatible with existing constitutional understandings and arrangements’.Footnote ³⁴ Such appeals ‘are made in the name of principles that are thought to undergird the idea of a constitutional democracy: security of territory, a self-governing demos, a rule of law’.Footnote ³⁵ Although democracy and human rights have been in general regarded as a ‘mutually reinforcing couple’,Footnote ³⁶ migrants who have no political membership and no political equality cannot benefit from this potential ‘mutual relationship between human rights and democracy’.Footnote ³⁷ They are not part of the demos and do not formally participate in the taking of decisions that might affect them.Footnote ³⁸ This relates to Koskenniemi’s observation that human rights do not exist outside the structures of political deliberation.Footnote ³⁹ Similarly, Noll has explained how human rights are derived ‘from the will representation of a particular political community organized in a nation-state with delimited territory’Footnote ⁴⁰ and they are ‘a by-product of the particular kind of society’.Footnote ⁴¹

At the same time, international human rights law has a ‘community-transcending validity’,Footnote ⁴² and its application as a matter of principle is not contingent on membership in a particular political community. Accordingly, commitment to human rights may require constraining the community’s competence on immigration.Footnote ⁴³

Benhabib argues that this contradiction between particularism versus universalism should be openly acknowledged. Once we have done this, we should think how to negotiate and renegotiate the tension between inclusion and exclusion.Footnote ⁴⁴ Benhabib thus maintains that this ‘constitutive dilemma at the heart of liberal democracies’Footnote ⁴⁵ can be calibrated, adjusted and reconstructed. She further recognizes that this contradiction cannot be easily resolved; however, she is optimistic that it can be mitigated through ‘democratic iteration’, including ‘jurisgenerative politics’.Footnote ⁴⁶ These imply ‘deliberative processes in which universalist rights claims are contested and contextualized’.Footnote ⁴⁷ In light of the tendency to view courts, especially courts with a mandate to adjudicate human rights law related issues, as important actors in these ‘deliberative processes’,Footnote ⁴⁸ it is relevant to scrutinize the ECtHR’s approach to this contestation. The concrete question to be examined is how the claim in favour of inclusion as opposed to exclusion has been adjusted in the case law of the Court. This claim complicates the three tensions identified in Section 1.2 as inherent in liberal democracies. An individual migrant, the applicant to the Court, formulates his/her claim with reference to the specific harm that he/she sustains, and an assessment needs to be made whether this harm is justifiable given any collective interests, which feeds the collective versus the individual tension. The applicant appeals to universal values, which feeds the universal versus the particular tension. Finally, the plurality versus unity tension is also complicated since inclusion might imply enhanced plurality, thus affecting the homogeneity of the particular community that is the addressee of the migrant’s claim.

By accepting that the above-described instabilities and tensions are not only ideological in their nature, but also pervade the applicable legal standards, this chapter attempts to respond to the question how the claim in favour of inclusion as opposed to exclusion has been adjusted by the ECtHR, by looking into three concrete circumstances (i.e. admission to territory, immigration detention and migrants’ right to family life).Footnote ⁴⁹ I approach these circumstances by asking the question whether human rights law requires the state to provide some form of justification for the restrictive measures taken in relation to migrants. Why this focus on justification? As moral beings, we at least have ‘a fundamental right to justification’.Footnote ⁵⁰ When public authority interacts with an individual, if he or she is considered as a person, he or she is owed reasons and justifications. There is thus a strong connection between personhood and justification.Footnote ⁵¹ It follows that although there is an instability in how inclusive or exclusive a bounded community should be and to what extent the state that represents this community should follow a universalist or particularist approach, recognizing the personhood of migrants is the very minimum that can be required. Providing some form of justification for measures affecting them is therefore the very minimum that can be demanded.

Providing justifications also creates a space where the different interests can be identified and arguments underpinning possible decisions exchanged. It also implies identification and evaluation of the empirical consideration behind the interests and the possible solutions.Footnote ⁵² Abstract invocation of sovereign entitlement does not suffice. Justification also requires taking into account the migrants’ interests and balancing them against the national interests. Therefore, Benhabib’s proposal for negotiation and renegotiation of the tension between inclusion and exclusion can be realized in the context of such a framework of justification.

1.4 Sites of Contestation

1.5 ‘They’ Defines ‘Us’

Dora Kostakopoulou’s work is the starting point for explaining this intertwinement. She has argued that restrictive immigration policies have an impact on the ‘political community’s scale of values.’Footnote ⁸⁹ The way we treat migrants has a profound effect upon the principles on which European polities ‘profess to be based, and upon the identity of their citizens. After all, admission and belonging are issues relating to “what kind of polity we wish to have” and “who we choose to become” – not simple correlatives of the state’s power to exclude.’Footnote ⁹⁰ The way in which immigration control powers are exercised, including whether and what kind of justifications are offered for substantiating these powers, can compromise the internal process of democracy: ‘[i]mmigration is inextricably linked with how political communities respond to diversity itself.’Footnote ⁹¹

Migrants are perceived as a danger to the order, welfare, culture and identity of the host community ‘only in relation to certain ideological conceptions as to what constitutes a member.’Footnote ⁹² Anybody who does not fit within this fixed conception of the identity that a member should have, is at risk of being silenced by a community that does not anymore value diversity. It follows that ‘the way we relate to Other becomes part of our identity.’Footnote ⁹³ If this way is characterized by pure effectiveness, objectification and exceptionalism (as suggested in Section 1.4), ‘this cannot but affect citizens’ identity negatively.’Footnote ⁹⁴ Accordingly, the pursuit of illiberal admission policies, fosters ‘an ugly identity’ and places ‘democratic achievements in jeopardy’.Footnote ⁹⁵ It follows that decisions about external membership (i.e. migrants) and internal membership (various groups within the host society that might have different religious or ethnic backgrounds, different sexual orientation, etc.) are interrelated.Footnote ⁹⁶

Internal membership decisions that imply drawing distinctions between different groups within the society, are an object of constraints. Such constraints are reflected in the right to non-discrimination that demands inter alia that any distinctions are proportionate and justifiable. If not, they might constitute prohibited forms of discrimination. If there are no similar constraints in how migrants are treated, this ‘cannot but compromise the democratic culture of communities and the principles upon which they are founded.’Footnote ⁹⁷

Populists who perceive membership as static and the polity as culturally homogeneous, not only tip the balance as to how migrants are treated, but also compromise more generally ‘democratic ideals by perpetuating fictions of internal homogeneity and promoting nativist narratives of belonging.’Footnote ⁹⁸ The constructions of ‘the other’ and the treatment of non-members are ‘closely linked to internal definitions of membership, the quality of community relationships and the recognition accorded to diversity.’Footnote ⁹⁹ In other words, the binary opposition between ‘us’ and ‘them’ infects and spreads to the inside of the community leading to the establishment of other binaries.

This compromises the values of the community because ‘identitarian assumptions’Footnote ¹⁰⁰ about who belongs to the ‘the pure people’ quickly lead to the targeting of other groups who do not fit within these assumptions. When the boundaries of the community are aligned along ethnic, nationalist and nativists homogeneous lines, minority groups, women, LGBT people, people of colour, people with disabilities, and other groups that do not fit or have different opinions, find themselves in a precarious state. Pluralism is undermined and the multiple identifications and identities of individuals are ignored.Footnote ¹⁰¹ Any difference can become a target.Footnote ¹⁰² A useful illustration here concerns the rights of women that have also been an object of attack by populist government based on nativist and identitarian arguments.Footnote ¹⁰³ As a consequence, anti-immigration policies serve wider regressive agendas.

1.6 Conclusion

Migration law scholars have for a long time discussed the tendency towards more restrictive and more oppressive measures against migrants. In their reaction to populism two aspects can be identified. First, migration law scholars have in detail demonstrated that the rights of migrants have been shaped by statism and exclusion. In this sense, the standards applied to detention of migrants or to their right to family life, seriously diverge from the standards applied more generally to situations where migration is not an issue. As a consequence, migration law scholars have maintained that any populist attacks against human rights law or institutions mandated to apply it, like the ECtHR, have little basis since human rights law accommodates states’ migration control interests.Footnote ¹⁰⁴

At the same time, migration law scholars perceive the danger of populism since often there is a delicate balance to be made and under the influence of populism, states might want to demonstrate strong control over migration to the public, which can lead to expansion of repressive measures.Footnote ¹⁰⁵ While migration law and the rights of migrants have always been in the realm of the exceptional in liberal democracies, populism can lead to further expansion of this space of exceptionality. As a consequence, the risk arises that migration control interests will not simply be accommodated in a balanced way, but rather the balance will be tipped, and exclusion will reign.

Constitutional law scholars have started to understand and explain populism and its dangers since relatively recently. Restrictions upon the rights of migrants are mentioned in this growing body of scholarship. However, the main focus of concern has been elsewhere (attacks on courts, rule of law, tactics of decision-making, etc.). As a consequence, there has not been much sustained dialogue between the fields of migration law and constitutional law. Treatment of migrants has received comparatively little attention apart from immigration and asylum specialists, the reason being the acceptance that liberal democracies are in principle entitled to impose restrictions and this in itself does not affect their constitutional nature.

This chapter aims to demonstrate that a conversation between the two fields is useful for better understanding the challenges posed by populism. This conversation exposes the intertwinement between the internal and the external, the inside and the outside, between the question how inclusive or exclusive the national community should be to outsiders and the question about equality more generally among different groups within the community. By furthering the conversation, the general dangers of subordination, undermining of equality and decline of diversity emerge. In other words, by examining how the tension between inclusion and exclusion of migrants is addressed, we can also understand subordination more generally. The chapters in this volume continue this conversation by providing concrete examples of how the restrictions upon migrants’ rights have wider repercussions for states’ constitutional orders and values.

2.1 Introduction

This chapter highlights the importance of the distinction between empirical facts versus institutional facts. Physical presence on the territory is an example of the first one, while residence is an example of the second. The chapter advocates for greater awareness of this distinction (Section 2.1) and argues that, if the distinction is disregarded or blurred, serious consequences follow. Some consequences are spelled out: first, our discourses lack in clarity, which inclines us to make controversial claims. Second, when we disregard the distinction, we might not properly identify our main object of research. For example, our main object of concern may not be individuals moving across borders. It might rather be legal structures that, in fact, immobilise people. The third consequence (Section 2.5) is that the confusion between empirical and institutional facts affects how we speak about population. We should distinguish the set of living bodies on a given territory (empirical fact) from the institutional fact of population. The chapter demonstrates that, once aware of the distinction, we are better equipped to see how the legal regulations governing the institutional fact of population affects our social and constitutional identity. In this sense, how law frames population has consequences for the empirical dimension of the individuals present on the territory. The reason is that the legal regulations governing who counts as a member of the population determines who we will live with; whether, for example, we might be allowed family unification and the identity of the children that we will give birth to. In light of this, the chapter advances the claim that both whom we admit and whom we do not admit will have an impact on who we will be tomorrow in terms of our social and constitutional identity. Migration policy is, therefore, an important constitutional matter. The fourth consequence (Section 2.6) of the blurring of the distinction between empirical facts and institutional facts is the danger of overlooking the distinction between People-as-a-part (empirical fact) and People-as-a-whole (institutional fact). Populism exploits the blurring of the latter distinction: the populist framing of anti-migration policies pitching ‘them’ versus ‘us’ is a case in point. We ought to beware of the unjustified appropriation of the People-as-a-whole by the People-as-a-part grounded in the disputable assumption that one group enjoys direct epistemic access to the common good. Finally, the chapter ends by pointing out that the appreciation of these five different consequences allows us to understand in a clearer light that migration policy has constitutional impact: it impacts on the composition of the institutional fact of the population, on the empirical fact of who is likely to live within a given territory, but, ultimately, also on the composition of the institutional fact of the People (those who count as citizens) and its role in the constitutional order (what the citizens do, which rights and duties they have) determines the state’s constitutional identity. Therefore, as this chapter argues, migration law can be employed to both strengthen and dismantle constitutional democratic institutions. Migration lawyers thus have much to offer to the constitutional lawyer concerned about the contemporary resilience of the constitutional setting.

More specifically, to this volume’s central question on the relationship between restrictive migration policy, populism and democratic decay, this chapter argues that populism typically employs a debatable view of peoplehood that lays claims on (re)defining the institutional fact of the citizenry in the manner that the group prefers. In the contemporary context, restrictive migration policy emerges as a tool for separating the wheat from the chaff, deepening the divide between the set of individuals living in a given territory and the members of the polity in ways that challenge the mode of self-governance that inspires the democratic form of government. As to this volume’s other key question – what can legal resilience do to avoid the erosion of migrants’ rights? – this chapter advances the seemingly innocuous answer that, if we wish to defend these rights, an important step would be to think (and speak) clearly about certain basic conceptual matters. We need to see how law constitutes the statuses of things that, in ordinary language, are conceived as natural entities, the evident characteristics of which it would simply be vain to resist. On the contrary, entities such as national belonging, citizenship, residence, habitual dwelling, migration and population, found in the law, do not refer to natural entities or empirical facts. Instead, they constitute, as shown below, institutional facts determined by particular constitutive rules and these rules are set up in the law and could have been different.Footnote ¹ By ignoring this conceptual point, we obfuscate the crucial fact that we have designed law so that it, say, bans visa-free travel and extraterritorial asylum applications. It is not movement itself, the mere empirical fact of a human body moving in space, that keeps people away from rights. It is the law that does so and law is a question of convention, not of empirical necessity. The motivation to change the law only comes from seeing that it is our creation.

2.2 On Institutional Facts

Legal thinking concerns what we today usually call institutional facts,Footnote ² where a function is attributed to something that does not have this function in virtue of its empirical properties. Imagine that there is a rule according to which, in certain contexts, something counts as a point in, say, a board game. It is not the nature of the thing itself that makes it a point in this particular board game. Indeed, often there is not even a ‘thing’ to refer to when we employ points in board games. What makes the point such is rather the constitutive rule. This outline of the way a point in a board game works is reminiscent of how many rules work in the law. This insight into the ontology of institutional facts plays a role in our understanding of legal concepts in general and more specifically in our understanding of central concepts in migration law.

Indeed, I understand this edited volume to focus on this internal/external membership dialectics according to which the ‘inside’ and the ‘outside’ dimensions of belonging are ‘intertwined’. Linda Bosniak famously made a point about how border protection runs through the ‘internal’ dimension, away from the territorial confines, to the heart of law and precisely to how members treat physically present non-members.Footnote ³ Vladislava Stoyanova remarks how ‘concerns with protecting the boundaries of membership then can structure and affect the position of everybody’Footnote ⁴ in a call for more of a ‘sustained dialogue between the fields of migration law and constitutional law’Footnote ⁵ – a call that I have joined on many occasions and that recently seems to have gained some traction.Footnote ⁶ Only recently has the constitutional dimension of citizenship begun to be systematically studied.Footnote ⁷ Stoyanova is perfectly right in pointing out, in line with Dora Kostakopoulou’s arguments on political identification, that the ‘internal’ and the ‘external’ have a dialectical relationship: one affects the other, and vice versa.

It is ancient wisdom that how you treat others reflects on who you are, and how you conceive of who you are reflects on how you treat others. Both who you admit and who you do not admit will thus reflect on who you are. We have yet to fully explore the implications of this insight in relation to contemporary democratic decay and twilight constitutionalism. If we are not ready to give in to a lesser kind of rule of law, a lesser kind of democracy, a lesser kind of citizenship, we should look carefully at the lawmaking process when it comes to the design of migration statuses and how these affect other legal positions within the legal order. One reason for this is that one’s migration status is not only about residence rights or the right to enter a country. Rather, it is connected to a whole bundle of legal entitlements and obligations – in the political realm, in family life, in the workplace and economic and social life generally. This is why so much of one’s life is dictated by one’s migration status. This is also why it is such a politically delicate matter. Another reason is that no matter what a state chooses to do in matters of sojourn and naturalisation, the choice will inevitably tell us something about that polity. Elsewhere, I have called this the constitutional-sensitivity thesis.Footnote ⁸

2.3 Like a Point in a Board Game

The Scandinavian legal realists, the work of whom I have long been interested in, understood early on that legal thinking concerns facts of a different kind than ordinary empirical facts. They understood that legal thinking operates with non-empirical facts, facts of another type that can, however, be empirically investigated. Through institutional facts we attribute to something a function that it does not have by virtue of its empirical properties. A common way through which such facts arise is through constitutive rules which are very common in law. From this perspective, the law appears to be essentially status-generative: it creates, or constitutes, different forms of statuses.

Now a status is a bit like a point in a board game: something you can win or lose; something that may be worth having, even though the thing itself (the ‘point’ or ‘points’) does not correspond to any empirical object and cannot be exchanged, substituted or replaced by an empirical object. Status is a concept of which we may offer an empirical explanation, even if it is not itself an empirical concept. Philosophers say that we exercise ‘our deontic power’ by creating different types of statuses.Footnote ⁹

The law can thus be likened to a technology that we employ to achieve a certain order in the world; for arranging or ordering the world, as opposed to merely describing it. To a certain extent, the law makes the world as it is, one might say, and the main way in which the law orders the world is by constituting and regulating various types of statuses.

Notice that a status is epistemologically speaking a kind of vox media. In itself a status is neither true, nor false. As an artefact of the human mind, it is neither good, nor bad. However, it may become good or bad depending on how well (or how poorly) it performs its function within the ecology of other statuses and legal positions it stands in relation to.

If one cannot demonstrate that the vox media allows a functional correlation between premise and conclusion in legal reasoning, the legal status may become an arbitrary tool for separating those who fall within its remit from those who fall without.Footnote ¹⁰ Ill-conceived legal statuses that result in arbitrary line-drawing suffer from lack of justification that undermines their legitimacy. Not having acceptable and satisfactory criteria for distinguishing between, say, citizens and non-citizens, makes it difficult to argue against the proposal of distributing citizenship by, for example, flipping coins or drawing the short straw. Some scholars who have argued that citizenship itself would be arbitraryFootnote ¹¹ or a tyrannical form of dominationFootnote ¹² have understood this point. Citizenship is not necessarily arbitrary in itself, but necessarily becomes an arbitrary tool of distinguishing insiders from outsiders if we cannot demonstrate that there are good reasons for the selection mechanism to be regulated in a specific way, given the nature of the polity we face. So, as Stoyanova stresses in quoting Ben Habib on the ‘fundamental right to justification’, ‘providing justifications (…) creates a space where different interests can be identified and arguments underpinning possible decisions exchanged. It also implies identification and evaluation of the empirical considerations behind the interests and the possible solutions.’Footnote ¹³ This is true in most contexts where we deliberate on collective action.

The aforementioned insight into the ontological nature of statuses – and what it implies for how statuses can be evaluated normatively – plays a role in our understanding of notions central to our discussion today. Here is how.

Once we realise that statuses are not natural kinds, we are better positioned to appreciate how law constitutes the statuses of things that, in ordinary language, are cast as entities of a natural kind, including notions such as national belonging, citizenship, residence, habitual dwelling, migration and population. It is important for us to distinguish the undeniably empirical dimension of, say, presence on territory (an empirical concept) from its normative cousins ‘entrant’, ‘residence’, ‘stay’, ‘sojourn’, ‘abode’, ‘domicile’, etc. None of the latter, found in the law, refer to empirical facts, but rather all are institutional facts determined by particular constitutive rules that are set up in the law and that could have been different as the very establishment of a constitutive rule is itself a question of convention, rather than of empirical necessity. Not to grasp the difference of the two dimensions would be to confuse fact and norm; to confuse the language of the law with its object of regulation – a mortal sin for a jurist.

If my reading of statuses as institutional facts is correct, it follows that we make certain assumptions about our object of inquiry that may be unwarranted. Contrary to geographers, biologists and doctors, we do not study migration or population as a natural kind – although human fluxes and demographics might be relevant to our understanding of the institutional facts by which law is essentially constituted (and relevant for our understanding of changes to these facts).Footnote ¹⁴ Perhaps, to start with, migration law might not be about bodies moving in space, but about the design and operations with statuses within the abstract space of legal computation. To see this more clearly, I suggest introducing a distinction between mobility and migration.

2.4 Mobility and Migration

Let us start by distinguishing migration from mobility. The main reason why this distinction should be made is that the law is the technology we use to define who counts as a non-citizen and a citizen respectively; under what conditions this is so, how long this is the case and what it takes for this to change. Nothing of this type can be predicated of mobility in general.

By mobility I mean a movement of a body in space. Such a movement may take place across a border between two states, or across an interstate border. It can also take place where there are no borders or within a borderland. Mobility is an empirical phenomenon that occurs in the world; it is best investigated using empirical methods. Mobility also raises interesting normative issues, but they do not necessarily coincide with the normative issues raised by migration.

By migration I mean a change in a person’s legal position vis-à-vis one or more state(s) or supranational organisations. Migration thus concerns the legal positions (rights and obligations) that regulate the individual’s right to stay in a country, to be protected from deportation, to be reunited with family members to name only some of the many legal positions that determine a person’s migration status. Other such legal positions concern the individual’s working life and socio-economic social life in general. According to this definition, status civitatis is a ‘migration status’. In fact, citizenship is a status that positions a person vis-à-vis one or several political communities and may contain many different rights and obligations. In addition, this status usually also regulates such things as residence, protection against deportation and the like.Footnote ¹⁵

The distinction that I am suggesting is radically different from the way migration studies usually think of migration.Footnote ¹⁶ I want to take a step away from the common understanding. The reason is due to the ontological tenet that a legal status is not an empirical fact. If this is so and the law constitutes a person’s status as an insider or outsider, we should reconsider what we think we know about migration in contemporary social science. We might see things in a new light.

Allow me a metaphor, one that the Scandinavian legal realists sometimes used themselves: the metaphor of money.Footnote ¹⁷ The relationship between mobility and migration is similar to that between paper and money. There is paper that counts as money, but not all paper is money, and all money certainly is not paper. Similarly, we find mobility that counts as migration, but not all types of mobility count as such. The law perceives a difference between a person stepping out of a house and the same person jumping the fence at the Spanish Melilla enclave. Both are empirically identified as movements of bodies in space. Consider also that migration is not necessarily grounded in mobility. Sometimes, physical movement of people is legally relevant in the sense that it provides reasons for a change in one’s migration status, but a migrant is not someone who necessarily moves or crosses a border. One can remain perfectly static and yet become a migrant. It is important to understand that mobility, or the physical movement, may trigger a change in migration status, but mobility is not required for such a change to happen. This means that whatever migration is, it is not grounded in physical movement because physical movement is insufficient to explain migration.

From this viewpoint, migration is not identical to movement across borders. Sometimes a person’s physical location is irrelevant for determining his or her migration status. Migration thus does not have to take place in the physical space, but it can occur as a result of a change in personal status (marriage, divorce, childbirth, adoption, etc.). Migration status can also change due to changes in the law. Consider the case in which a new ground for loss of a status is introduced. In the case of denaturalisation, for instance, we have seen a number of EU countries that have adopted a new ground for loss of citizenship often for naturalised individuals believed to be involved in terrorism; these individuals may be citizens one day and non-nationals the next, without moving across borders. Status can also change due to changes in the territorial jurisdiction (e.g. Brexit). Status can be modified as a result of the passage of time (e.g. at 18 years, after 5 years, after 24 November 2015) or territorial tampering (e.g. Tampa).

It is also worth mentioning here that the very word migration etymologically does not mean movement in space, but rather changed status. Migration in the sense of travel or moving across borders is not migrare in Latin, but peregrinari. Now it could be objected that the etymological root which gives the word migratio in Latin also gives ameibein in Greek which means to change or exchange. But it would be wrong to assume that migration, therefore, refers to mobility or change in general. Instead, it has to do with a change in legal status such as the right of some individuals (Latini) to become Roman citizens through the institute of ius migrandi. Ius migrandi was never a right to free movement, but the right to naturalisation as a Roman citizen.Footnote ¹⁸ It was not until modern times that the Latin verb migrare began to be used to describe a movement in space.

The distinction between migration and mobility has a number of consequences. Let me mention five.

2.5 Consequences

A first consequence of the distinction made above is that our discourse lacks in clarity. As social scientists we often fall prey to confusing the natural kind with the institutional fact: we speak as if residence, sojourn, entrance, family membership and the like would be natural kinds; a confusion that arises because we wrongly assume to have direct epistemic access to the entity at hand. We presume that our prelegal conception of, say, entrance determines our legal uses of the term that only in appearance are the same. We blur the empirical and the institutional features in unfortunate ways. This lack of clarity inclines us to make claims that are questionable. Many have claimed that international law would have failed in governing migration and many have pointed to the fact that the state would be incapable in a globalised world to govern migration flows. Regardless of the empirical foothold of such claims, it is rather obvious, that, even in situations where sustained cross-border movement is observed, this says little about any failure in the exercise of the ability to govern migration as here defined. Law might not efficiently shape movements, but it is quite effective in ascribing or denying rights to individuals. The very conception of this volume aspires to show that the law is able to curtail rights (or for that matter, to engender them). Also, when it is affirmed that ‘most asylum seekers are not able to depart and reach European States. The possibilities for movement and flight have been increasingly suppressed’Footnote ¹⁹ we obfuscate the crucial fact that it is the law – our law – that we have designed in such a way that bans visa-free travel and prohibits asylum applications to be filed with the embassy. By keeping the distinction between movement and migration in mind it becomes evident that it is not the cost of air tickets or the lack of road access to the airport that makes prospective asylum-seekers ‘unable’ to file their claims.

A second consequence of suppressing the distinction between migration and mobility is that we might misconceive the very object of inquiry. Our main object of research may not be individuals moving across borders. Our main object of research perhaps is better understood as the different set of legal positions, attributed to certain groups of individuals – where the physical movement in some cases may trigger a change in status, but this is just one among many triggers – relative to what a state may legitimately do to these individuals. The matters that fall within this realm are not always linked to movement either: it may concern legal positions relative to an individual’s work life, to housing, welfare, education, family life and more. The delimitation of migration law ratione materiae seems hard to settle a priori; it is a bit of a moving target. It may even be the case that migration law deals much with institutional legal structures that immobilise people. This point is becoming increasingly clear to those migration scholars who have noticed that contemporary border control policies often aim to immobilise people rather than manage movement. Are we convinced that migration law regulates the position of bodies in space rather than, say, how far in time individuals stand from their inclusion in certain institutional structures? What if it is not movement itself, this mere empirical fact, that keeps people away from institutional structures? What if it is the law that keeps individuals away from accessing rights? A poet like Berthold Brecht saw this point clearly: in Reisen im Exil he ironically wonders whether the most noble part of Man, after all, is not the passport.

In the contemporary migration debate, we are afflicted by a form of pensée unique according to which migration would be a movement across borders. We constantly talk about boundaries, borderlands, liminal spaces, frontiers, frontlines, streams, channels, flows, fluxes, etc. This obsession about space obfuscates a quite evident point for the lawyer: legal orders ultimately determine who is to be considered a migrant, how, when and where this is the case; a legal order is itself a legal construct, not a location in space. If law is an instrument, a technology we employ to determine statuses, state migration agencies identify migrants of a certain kind once they set out to look for them. If a visa is hard to get, entry into a country is more likely to be irregular. So, a country’s ‘stock’ of irregular migrants depends on its visa policy. Make visas harder to get and irregular migration rises; when a state makes legal migration harder, there will be more irregular presence, other things being equal. That is why some think illegal migration is a phantom illness.Footnote ²⁰ It is a product of the laws that combat it. Combatting illegality would be somewhat like fighting your own fist basically.

If this is right, migration crisis can be policy-made or fabricated. Mobility does not per se create a ‘migration crisis’, the law does. This is so for a deeper reason than the reasons usually given when we discuss fabricated emergencies, like those mentioned by Spijkerboer for instance,Footnote ²¹ that is that the ‘emergencies’ may be caused by suboptimal internal policy choices and not by external forces or events. The deeper reason underpinning a ‘migration crisis’ is rather the law itself that keeps people away from the reach of institutional structures: states engage in buck-passing so as to avoid responsibility for certain individuals. To see this, we have to understand that mobility is not migration; mobility is an empirical fact; migration is not; migration is an institutional fact construed by the law. In a sense, the Scandinavian realists would have said that it is a little like magic.

2.6 On Population Design and the Magic Wand of the Law

The design and management of migration statuses play an important part in shaping one of the state’s ‘constitutive elements’, namely its population.Footnote ²² Thus this section argues that migration and citizenship laws enable population design through the design of institutional facts: by the magic of pen-strokes we modify the number and social characteristics of the individuals we count as migrants or citizens.

The aforementioned infelicitous confusion between empirical and institutional facts affects how we speak about ‘population’. We are often quite unclear, when speaking about population whether we are referring to the population as a natural kind, the mere demographic instance, the set of human living bodies, or to the population as a legal construct, an object of policy design and outcome of census. Notice that population in the first sense (here: population⁽¹⁾) and in the second (here: population⁽²⁾) may differ significantly. Population⁽¹⁾ may both outnumber and, vice versa, be less numerous than population⁽²⁾. The latter may include expats within its scope. At the same time, it may exclude certain individuals on administrative grounds (e.g. unregistered births) by making them invisible in the eyes of the law.Footnote ²³

The forms that migration statuses take, the technicalities regulating these, and how they relate to other legal positions (rights and obligations) within the legal order forge the institutional design of the citizenry and hence bear heavily on the question of constitutional identity. Migration and citizenship policy, directly or indirectly, determine the extension and social composition of the population⁽²⁾ in a political community; they attribute to the individual significant bundles of rights and duties that co-determine that individual’s position within society and within the power-setting of the constitutional framework. In this sense, these areas of law contribute to the construction of the position that a given individual occupies vis-à-vis other individuals and their collective endeavours (i.e., the State). Since migration law typically governs access to residence rights and these are prerequisites for naturalisation in constitutional frameworks – where political rights, in the form of voting rights, are most often reserved for fully capacitated nationals – migration law in combination with citizenship policy, electoral laws and constitutional regulations of the role of the citizenry determine who counts as a member of the People. How we regulate access to, and the content of citizenship determines how the demos, or set of citizens, is composed. In other words, the legal positions reserved exclusively for citizens determine the share of political power that citizens enjoy in the constitutional order: how, when and where they may use political power. The composition of the People (who counts as a citizen) and the citizen’s role in the constitutional order (which rights/duties are reserved for citizens) determines the state’s constitutional identity.

Crucially, precisely because legal statuses are institutional facts and not natural kinds, we can change our population⁽²⁾ – the number and social identity of the individuals we treat as migrants or citizens, within and beyond our territory by the magic of pen-strokes. For example, EU citizens may become third country nationals by this kind of institutional expedient. In this way, the EU just lost about sixty-six million EU citizens on ‘Brexit day’ in January 2020. Of course, the magic bullet will not make the actual bodies of people disappear, nor will it, in itself, make individuals appear (population⁽¹⁾). It is not real magic after all. But the legal status can both appear, disappear, and vary at the pace of any given regulatory change. As the legal status is transformed, with each new law, regulation or doctrinal revirement, the population⁽²⁾ may change and what we may ‘legally’ do to certain individuals can thus change significantly. What we may do to individuals also impacts on who they will live with (e.g. family members) and the children they will give birth to. It follows that not only do legal frameworks impact the design of the population⁽²⁾,t they also have important consequences for the volume and the social composition of population⁽¹⁾.

If by population design we mean the design of population⁽²⁾ that impacts on population⁽¹⁾, typical ways of engaging in population design have been used to fabricate citizens or to export the poor or otherwise unwanted. Throughout history, the volume and composition of the population was often thought of as a source of strength (or the lack thereof as a weakness). During the course of history, rules concerning, say, the acquisition of citizenship have been modified to achieve objectives such as drafting men to armies, avoiding responsibility for certain socio-economic groups or getting rid of more or less challenging minorities. Think of it as eugenics by passport distribution. Popular political tricks in population design have included increasing the state’s population ‘fictively’ to gain power, an eternal temptation for electoral district designers, competing in the ‘battle for brains’ by opening the ranks of the citizenry, cherry-picking a preferred élite by fast-tracking on the migration route, intervening in other countries through one’s diaspora, imposing protection on one’s citizens abroad, like Russia did in Georgia for instance, to meddle with foreign policy, incentivising migration to solve unemployment, like Italy or the Philippines have done, or simply exporting poor people, a temptation that Gulf states have been looking into to avoid taking responsibility for guest-workers in the region.

It is important to see that to the extent that the number of individuals influences the distribution of the political power among different social groups, the dimension and composition of the population⁽¹⁾ will affect the political distribution of power in a society. Rules concerning citizenship can thus be used for the purpose of shifting power from one group to another. As early as in the fifth century BC, Gorgias from Leontinoi, the famous pre-Socratic sophist, joked about states that bow to the pleasure of fabricating citizens out of thin air. Some 2500 years later we keep on using the same trick. Citizenship policy may thus be seen as an indirect a way of gerrymandering and migration law as a tool that allows states to engage in population design, therefore, using population⁽²⁾ to modify population⁽¹⁾, often in view of obtaining political advantages.

A contemporary example of such a shift in power is the persecution of illegal migrants that takes place in India’s Assam region.Footnote ²⁴ The State claims to suffer a migration crisis due to the uncontrolled entrance and stay of Bangladeshi unauthorised migrants. Instead of, for instance, finding and prosecuting the individuals that the State believes to be ‘illegal migrants’ that it wants to deport to Bangladesh, Assam has chosen to demand that its residents, many of whom are illiterate, prove that they are indeed citizens. This implies a shift of the burden of proof from the State to the individual. Those who fail to prove their citizenship are placed in custody in view of deportation. Technically, the case of Assam is a case of quasi-loss of citizenship: the validity of the status is declared void ex tunc. There is little evidence to suggest that most of those whose citizenship is declared void would be anything else than Indians. But there is quite significant evidence to suggest that those whose citizenship is annulled are overwhelmingly Muslims. This fact alone exacerbates the sectarian tension between Hindus and Muslims in the region. In Assam, the dividing lines of politics largely mimic those between religious identities: the party system reflects social identities grounded in religion. So, if many Muslims are denationalised, the electorate’s composition changes to the effect that the political party system is impacted. It is like disenfranchising one’s political opponent thereby ridiculing the rationale of the democratic form of government. Basically, the effect obtained through a shift in the burden of proof – a technicality in itself – combined with a particularly sensitive legal status (status civitatis) is to silence particular political movements. All this is nothing short of manipulation of the constitutional identity.

The Assam case shows very well how a procedural technicality in the area of migration law can impact the political system. The effect of this manipulation distorts the constitutional settlement and by doing so denigrates the value of the citizenship also for the citizens who were not deprived of their citizenship or subjected to deportation. This is possible because citizenship is a status that offers ‘bundle-rights’,Footnote ²⁵ a whole set of rights concerning residence, family life, work life, and, last but not least, political participation.

The Assam case points to the fact that how you design migration statuses reflects who you are. It is important to notice that this is not only true where the policy design choices are of disputable kind. Rather it is true no matter what policy choice is made. To be clear, we should qualify the assertion according to which citizenship policy, in combination with migration policy, ‘allow states to choose populations’.Footnote ²⁶ At the micro or individual level, it is not so: one could object that citizenship is generally a birth-right and states do not ‘choose’ their future nationals, at least, in so far as no particular birth-control regimes are practised to this end. If the claim is read in connection with migration law, it looks more convincing: states may cherry-pick certain individuals and design categories to the effect of not allowing others to become part of the legally recognised population. However, what is important to notice is that, although it may be debateable whether states ‘choose’ their populations in reference to the individual level, this claim holds at the macro-level: states certainly engage in population design and crafting of their citizenry at the macro-level. Many have shown the causal connection between citizenship regimes, allocation of public goods and global inequality.Footnote ²⁷

Also, it is important to see that both whom you admit and whom you do not admit will reflect who you will be tomorrow. The constitutional identity of the State is determined inter alios by the choices in these policy fields. This makes migration policy a lofty constitutional matter, albeit sometimes in ways that are not immediately visible. Precisely because migration policy impacts on the constitutional bedrock of the state, there is a particular reason why the populist conception of the People ought to be of interest to both migration and constitutional lawyers. It is important to understand the causal triangulation between democratic decay, authoritarian populism and restriction of rights for migrants. One expression of this triangulation is the resurgence of the synecdoche that characterises populism.

2.7 The Synecdoche of the Populist People

The conception of People in populism is a synecdoche, that is, a particular figure of speech belonging to the category of metonymy in which one refers a part for a whole or vice versa. The particular form of this synecdoche is the microcosm. A microcosm uses a part of something to refer to the entirety.

Neil Walker has rightly pointed out that the political notion of ‘the People’ may always be a synecdoche of sorts. It typically does not refer to all persons; often it does not include reference to disenfranchised categories. All political movements operate with some notion of who are to be sociologically representative of ‘the People’; and ‘the People’ is clearly not synonymous with population⁽¹⁾, a mere empirical concept. However, the way populism employs the synecdoche differs from non-populist uses. One hypothesis is that it does so quantitatively in indicating a stricter use of the figure of speech: fewer members of the microcosm are taken to represent the macrocosm. A more convincing hypothesis is that perhaps the populist use of the synecdoche is characterised by a certain unawareness: the figure of speech would be used without awareness of the fact that it is being used. Consider, a contrario, how the synecdoche is employed more ordinarily in constitutional theory: here, the synecdoche lacks the pretence of describing the world, which is evident from the distinction made between populus and multitudo, to the effect that the theory is self-aware of the employment of the figure of speech to a much higher degree.

To illustrate the point, let us start with the obvious: ‘people’ is an abstract term, with no clear, single referent. It is does not refer to a natural kind. The collective subject, that is, the ‘people’, is distinct from the individuals composing it (i.e., population⁽¹⁾) and it exists only in our discourse.Footnote ²⁸ As Kelsen famously pointed out, ‘People’ is always a fictio that obscures the fact that the individuals in a society have multiple and diverging interests and attitudes. The will of the people, as Albert Weale has recently shown, or perhaps reminded us about, is a myth – and a particularly uninstructive myth today given the pluralism and complexity of contemporary societies.Footnote ²⁹ To make the same point in the words of a scholar who has reflected much on populism, let me quote Ernesto Laclau: ‘People is therefore always ‘a unity – a homogeneity – out of an irreducible heterogeneity.’Footnote ³⁰

What is then the ‘homogeneity’ that populists impute to ‘the people’? If we assume that Jan-Werner Müller has correctly diagnosed contemporary populism as ‘an exclusionary form of identity politics’Footnote ³¹, we would still need to know what creates this homogeneity besides the ‘national contents’ that will vary from country to country. How can we recognise the construction of homogeneity among the numerous national differences in the construction of collective identities?

Here philosophy can help. As Valentina Pazé has recently pointed out, we know well from the history of political thought what ‘people’ means in populism,Footnote ³² that is, what the said homogeneity consists of. It consists of an appropriation of the whole by a part; and not just any part but a specific part that needs to be socially recognisable.

Notice that the word demos, in the singular, had two meanings that were not clearly distinguishable in Greek.Footnote ³³ The ‘people’ was a term used to indicate broadly the set of citizens of a polis holding political rights (in classical Athens, all free and native-born adult males) but it was also used less broadly, to mean not the (political) citizenry as a whole, but its humbler members: the peasants, the sailors, the manual laborers in general. This explains the fact that Aristotle was able to define democracy not so much as government ‘of the many’, but as government ‘of the poor’.Footnote ³⁴ The very term employed – demos – obscures the distinction between the ‘People-as-a-whole’ (all members of a political community) and the ‘People-as-a-part’ (members of a class, i.e., the humbler members of society). Yet, it is indisputable that the objects denoted are two (all free and native-born adult males and the humbler members), although the word (demos) may be one. Indeed, not even the most radical anti-élitist populist would deny that the élite has political power, rather the opposite. Indeed, in populism, it is the political power of the élite that is decried.

In Book IV of the Politics Aristotle identifies different types of democracy. One type is ‘demagogic democracy’ that has many points in common with tyranny. This form of democracy has three main characteristics: (i) supremacy of the demos over the law, (ii) a direct emotional relationship between the leader and the masses, fuelled by a spirit of retaliation against the aristocratic minority, (iii) the use of ‘People’ as synonymous with ‘People-as-a-Part’: populus as plebs. The synecdoche of populism is that particular figure of speech that takes one for another, that is, that identifies demos in the second sense with demos in the first sense. This can be also conveyed with the Latin terms (perhaps more common in constitutional and political theory): it is that figure of speech which identifies populus (the constitutional notion of peoplehood) with plebs (i.e., a section or part, that is socially identifiable, most typically as the humbler members of society). Notice that demos in the second sense of plebs or People-as-a-part is never identical to populus or demos in the first sense which is by necessity composed by a larger number of individuals. The synecdoche of populism, therefore, consists in making the uncritical audience believe that the whole People would want what is really only what a section of it wants, namely a part that is both numerically and socially inferior to the whole. In the synecdoche of populism, the People-as-a-part (or demos in the second sense or plebs) is (i) numerically limited (fewer in number), (ii) bears social marks identifiable as ‘non-élite’ (which may come in a wide variety and is likely to be subject to social change) and (iii) projects itself as a ‘whole’, as a collective actor regardless of whether this is justifiable. Aristotle says that ‘the demos governs as a ‘whole’, ‘the people’ becomes a monarch, and ‘the many’ have power in their hands ‘not as individuals, but collectively’.Footnote ³⁵ This is the holistic conception of the people as an undifferentiated whole that recurs in the populist rhetoric.

So, let us recap what we noticed so far. Just like ‘population’ refers to two different things, so ‘People’ does. As clarified in the beginning of the chapter, ‘population’ may indicate all living human individuals within a determined spatio-temporal framework which is an empirical fact (population⁽¹⁾). Population may also indicate all persons recognised as such within a jurisdiction which is an institutional fact (population⁽²⁾). Also ‘People’ may indicate an empirical fact or an institutional fact. ‘People’, on the one hand, may indicate all (quasi-) social citizens within a given social setting (People-as-a-part), which is an empirical sociological fact.Footnote ³⁶ ‘People’, on the other hand, can also refer to all political citizens or members of the polity within a given constitutional setting (People-as-a-whole) which is an institutional fact.

Now, the populist use of the term ‘People’ is grounded in the view that the People-as-a-Part actually is, or embodies, the People-as-a-whole. When I say ‘embody the sources of all legitimate government’ I refer to a status-generative activity: a group in society (the People-as-a-part) – justifiably or not – claim to (re)define the institutional fact of the citizenry (the People-as-a-whole) in the manner that the group prefers. As such this synecdoche is not very surprising: it is a population design matter, and we have seen that any collective body by necessity engages in such design. What makes this synecdoche ‘populist’, however, is that it is unaware or oblivious of the fact that the People-as-a-part, which is an empirical social fact, and the People-as-a-whole, which is an institutional fact, are of a different nature and, thus, cannot be made to coincide. When the populist speaks in the name of the institutional fact of the People-as-a-whole to make the claim that a determinate interest, or course of action, is what is desired by ‘the People’, it is important to notice that this latter ‘People’ is not the same as the People-as-a-whole. This is why the synecdoche boils down to saying something along the lines of ‘this is what my social peers and I desire’. This may be a perfectly legitimate claim to make, were it not for its unfounded disguise as something that it cannot be: the interest of the ‘People-as-a-whole’ or bonum commune. Indeed, it is quite another matter to say that ‘this is what my social peers and I desire’ and to say ‘this is what is best for you all’.

Now, the people invoked as ‘the source of all legitimate government’ – the People that, I would argue, constitutionalists rely on, or intend to rely on – is the People-as-a-whole, not the People-as-a-part. In other words, for the populist and for the constitutionalist ‘the People’ actually means two different things. The semantic uses obey different rules. In the history of political thought, we can clearly see that there are two ideas in play here. First, there is the political-legal notion of the ‘People-as-a-whole’ that we may call ‘the People of constitution’ taken as the basis of legitimate power. Second, there is the sociological notion of ‘People-as-a-part’ usually meaning the ‘common people’,Footnote ³⁷ therefore, the same as plebs or demos in the second sense (namely the humbler members of society).

These two notions coexist and are at times conflated. What relation the ‘People-as-a-part’ should have to the ‘People-as-a-whole’ is a question that triggers political constitutional disagreement. At the risk of oversimplifying, the relationship between these two forms of people can either be one of identity or one of non-identity. If one believes they should be identical, one assumes the populist synecdoche: the People-as-a-part-who-should-actually-be-the-People-as-a-whole. When one assumes this synecdoche, it makes sense to use dichotomous terms to describe the political landscape. Think of the clash between a ‘people’ and a ‘non-people’, the underdogs and the custodians of an order founded on privilege. In political terms, populists will therefore typically think that you are either with or against us – allowing shades of grey is essentially perverse.

If one believes that the relationship between the two aforementioned forms of ‘People’ is one of non-identity, the ‘People-as-a-whole’ and ‘People-as-a-part’ remain separate: this will imply, for example, a distinction between the People of the State, for instance, all those having the nationality of a given country, and the people of the society that may include resident non-nationals. One way to understand this distinction is to say that the society (the People as a sociological, empirical category) is different from, or does not coincide with the People as the aforementioned Kelsenian fictio which is an institutional fact.

In sum, the populist use of ‘People’ consists in an appropriation of the whole by a part. We stand before a populist rhetoric when we face a synecdoche where the People-as-a-part claims to embody the source of all legitimate government, that is, the People-as-a-whole. The marker of a populist use of the term ‘People’ is the belief in the direct epistemic access of one group to what another group needs, wants, desires, etc. What is populist in the synecdoche is to claim that what the People-as-a-whole needs is known to the People-as-a-part.

Can there be circumstances in which such a claim is warranted? Perhaps. However, this may depend on the context. A caveat is needed here. I am not saying that there can be a justified identification of the People-as-a-whole by the People-as-a-part: it is always a conceptual error. But there can perhaps be a legitimate identification of the common interests by the People-as-a-part. As has been pointed out by others,Footnote ³⁸ the (possibly) legitimate identification of the interests of the whole by a part of the society is typical for the construction of the people as pouvoir constituant. Think about the age of revolutions when the idea of the people became a powerful drive for the worst-off in society (so only a part of it) who could use this populist synecdoche to raise issues that may very well have been justified. Think of the Levellers in England, or the more radical wing of the American and French revolutionaries for whom the idea of the ‘People-as-a-whole’ was understood to coincide with the ‘People-as-a-part’. It was not obvious that this appropriation would come across as justified in relation to the peuple constitué. While potentially apt to convey the intensity of revolutionary mobilisation, the populist view of the People might be ill-suited to make sense of the ordinary democratic tensions between collective subjects such as parties, unions, interest groups and the like who identify with a set of shared rules.Footnote ³⁹ Whether the synecdoche is politically justified or not will hence depend on the context.

This also explains a central point concerning the relationship between the populist appeal to the People and democratic decay. It is generally assumed that once we adopt the twentieth-century representative and constitutional conception of ‘party democracy’, the synecdoche seems obsolete. Its obsolescence, however, obtains only if we are sure about who is the constituted people/peuple constitué and its powers. This is something we are certain of only in the framework of accepted constitutional rules. Where such constitutional rules are the object of deep disagreements, for example, amidst a constitutional crisis, the synecdoche might resurge. This is in line with the observation by Pierre-André Taguieff that conjunctures that favour the rise of populist mobilisation include what we normally call a ‘legitimacy crisis’ of the political system.Footnote ⁴⁰ A so-called crisis of representation would count as a crisis of legitimacy. From this premise it is not far to conclude, like Mény and Surel, that ‘representation’ for populists means ‘treason’. One may think of crises of parties, of parliamentarism, of trust in institutions and such like as variants of a crisis of legitimacy. There is thus a connection between the populist synecdoche and democratic decay.

An important expression of democratic decay is lack of respect for pluralism. Democracy conceives politics as expressing a plurality of ‘parts’ which are no longer perceived as ‘factions’ that are destructive for the social body.Footnote ⁴¹ The populist view of the People relies instead on a reductionist view of politics that considers politics as struggle for power. Such a view rules out that conflict can, and perhaps should, end in a Kelsenian pursuit of compromise between forces that represent ‘partisan’ interests and opinions but do not claim to be the ‘only legitimate totality’.

Notice that this reductionist view of politics as struggle for power – that leaves a Machiavellian and perhaps Schmittian aftertaste – is not a mark of populism since it is also found in the debate over different models of democracy. In particular, the dichotomous manipulation of the political space is a typical characteristic of the ‘majoritarian’Footnote ⁴² or ‘immediate’Footnote ⁴³ forms of democracy which are based on the formally, or substantially, direct election of the head of the executive. Think of the presidential and semi-presidential systems, where the political battle culminates in an electoral face-off between two leaders. Valentina Pazé has thus asked ‘Is it a coincidence that America – the continent of populism – is also the home of presidentialism?’Footnote ⁴⁴ At the same time, the populist wave has surged through Europe precisely in a period when many parliamentary systems were ‘presidentialising’Footnote ⁴⁵ Without suggesting a causal implication, the simplistic logic of populism based on drawing a sharp line between ‘us’ and ‘them’ and on the direct relationship between the leader and the masses seems to be particularly suited for presidential systems, and particularly unfit for the institutional complexities of parliamentarism. In systems closer to ‘consensual’ and ‘mediated’ models of democracyFootnote ⁴⁶ the very institutional model translates awareness of the fact that there is a substantial difference between the empirical fact of ‘People-as-a-part’ and the institutional fact of ‘People-as-a-whole’. The constitutional setting of such models is articulated around, on one hand, the artificial character of the constitutional conception of the People and, on the other, the need to articulate and re-compose the plurality of interests that are voiced by sections of society (People-as-a-Part) through a variety of political forces that organise and articulate different visions of the world. The (sociological) People is dissolved into a multiplicity of people. In such systems, the Aristotelian distinction between People-as-a-whole and People-as-a-part is upheld.

2.8 Conclusion

Legal thinking concerns institutional facts. This ontological insight grounds the distinction between migration and mobility, only the first being an institutional fact. It is important to understand that migration statuses in the law are not necessarily grounded in mobility. Migrants and citizens may be fabricated by the law and they may disappear by the same magic. This implies that the design and management of migration statuses play an important part in shaping the ‘population’ of a country in ways relevant for legal and constitutional purposes. This substantiates the claim that migration and citizenship law enable population design. The aforementioned ontological insight also allowed me to distinguish two meanings of ‘population’. The first refers to the empirical fact of the sum of human beings within a given space and time, while the second refers to the institutional fact of the sum of persons recognised as such by the legal order. We are often oblivious of this distinction in discussing migration, border control and citizenship matters despite the fact that it so radically shapes our understanding of how these policy-areas impact the democratic constitutional setting. These policy areas directly or indirectly determine the extension and social composition of the population in a political community. They also determine the attribution to the individual of important rights and duties that co-determine that individual’s position within the society and within the power-setting of the constitutional framework. In this sense, these areas of law contribute to constructing the position that a given individual occupies vis-à-vis other individuals and their collective endeavours (state action). Since migration law typically governs access to residence rights and the latter are prerequisites for naturalisation in constitutional frameworks where political rights in the form of voting rights are most often reserved for nationals, migration law, in combination with citizenship policy and electoral laws, determine who counts as the People. The same ontological insight also allowed me to distinguish between two meanings of ‘People’ depending on whether we refer to the empirical fact of a set of members belonging to a society or to the institutional fact of the set of members of a polity within a given constitutional framework. This distinction reflects Aristotle’s distinction between the People-as-a-part and the People-as-a-whole. I also showed how populists employ these notions.

The overall picture I was able to paint shows that how we regulate access to and the content of citizenship determines how the demos, or set of citizens, is composed since the legal positions that are reserved for citizens determine the share of power that citizens enjoy in the constitutional order (i.e., how, when and where they may use political power). The composition of the institutional fact of the People, or set of citizens, and its role in the constitutional order – what the citizens do, which rights and duties they have – determines the state’s constitutional identity. Precisely because migration policy impacts on the constitutional bedrock of the state, there is a salient reason why the populist conception of the People ought to be of interest to both migration and constitutional lawyers. It is important to understand the causal triangulation between democratic decay, authoritarian populism and restriction of rights for migrants. One expression of this triangulation is the resurgence of the synecdoche that characterises populism: People-as-a-part is taken to embody the People-as-a-whole where a section of society thinks that it may speak for the whole to the effect that the irreducible pluralism of individuals composing the collective is muted. This denial is often a key step in the path to othering.

3.1 Introduction

The EU is currently experiencing the coincidence of two phenomena: the demise of its decade-old economic model and the looming reduction of growth due to the ageing of European populations. Since the 1950s, the Union has operated a regulatory model on migration, the whole point of which was to promote growth among an incrementally enlarged group of cooperating nation states. It combines the acceptance of the freedom of movement for nationals of cooperating parties with the power to exclude nationals from countries outside the group. To function as an engine of growth, the circle of parties has to be successively widened. With a limited scope for further EU expansion, this model is no longer sustainable according to its own logic. To be sure, I am not engaging with the question of how a novel successor model could or should look. Rather, I find reasons to doubt that a new and more viable model will be negotiated at all, unless we reimagine the fundamental assumptions of the European social contract. The ageing of populations will block such a policy process, according to my hypothesis, providing for a vicious circle where two separate factors amplify each other. This interrelation – the demise of a stabilizing regime concurring with an ageing population as a reform-blocking development – merits scholarly attention. My shorthand for it in the following is ‘the blocage’, and it will provide the theme for this chapter.

To understand the blocage, legal scholarship is necessary, but not sufficient. The power of the EU regulatory model derives from its legal character, and legal scholarship is good at explaining its components. Economic growth and political stability are the teloi that this model seeks to ensure. Law has a curious blind spot for its own overarching teloi, with disciplines such as political philosophy or economics partly filling that void. The particular crisis that engenders the blocage is one of ageing populations – a phenomenon that demographers would recognize as within their domain. Already now, understanding the blocage is a project stretching over four disciplines, and it would not be difficult to add others as political sciences, medicine, sociology or psychology. A multidisciplinary, multiannual research program with a corresponding budget might seem to be a plausible way to research the blocage.

At the present juncture, however, a different type of study seems to be called for: exploratory and argumentative in style, and quicker to reach tentative outcomes. The consideration of law’s teloi within law needs to be reinvigorated, I believe, and the findings of other disciplines have to be brought into a conversation with law. This chapter is an attempt at doing that. I shall outline an argument that starts with law and ends with law, and that follows a path of reasoning where relevant findings from other disciplines are integrated. Far from being novel or original, this approach acknowledges that we are all tethered to one or a few disciplines that give a foothold in any exploration of that which is beyond. It reaches for an outcome which helps us decide whether or not we should invest further and more comprehensive efforts into the research of that blocage.

Here are the limits of my project. My question is how the ageing of populations in EU Member States will affect their making of migration and asylum law. I shall test the hypothesis that EU asylum and immigration law and policy might develop in a way that is increasingly exclusionary towards large groups of immigrants due to an interlocking of the economic and political consequences of ageing. Here is a simplified version of what might underlie such a development, making up for the blocage:

This paragraph drives my chapter as a hypothesis, and my main interest is to map a number of pro tanto arguments speaking to each of the relations that make up the hypothesis. What intrigues me in this is the interposition of law with democracy, demography and economic growth – factors often compartmentalized into disciplinary silos. In particular, my study shall explore how findings on these linkages are of relevance for the evaluation of existing migration law, and the processes of making future migration law. When uncovering future constraints on law-making, the factor of voter preferences on migration policy under conditions of stalling growth and increasing domestic inequality is of special concern.

In Section 3.2, I shall present the current regulatory model of the EU and give reasons why it has come to its outer limits. Section 3.3 engages with the blocage hypothesis, setting out the correlative chain in its entirety before breaking it down into three interlinked correlations. Section 3.4 reflects on how the nexus between ageing, demography, growth and migration law impacts on the themes of democratic decay, populism and migrant rights, and Section 3.5 considers implications of my tentative findings for the law in the short to medium term.

I will argue that the restriction of migrants’ rights is but a symptom of a vicious circle of democratic decay, as ageing European societies undermine their own resource base for achieving economically tenable, politically stable and sufficiently egalitarian communities. I shall elaborate on the importance that population ageing will come to play for migration policies. By itself, the law cannot provide for resilience against restrictive migration policies. While the law is a useful tool in single cases and the short term, it emerges from the same foundational assumptions that lie behind a long-term and amplifying trend of restrictionist politics. The point is to uncover this shared foundation, and to show that a continuation of politics along its lines amounts to economic and societal self-harm.

3.2 The Foundational Norm on Migration in EU Law

Contemporary migration law emerged within a project of economic and political integration across a group of nation states in the West. Its key driver was a liberal logic of expanding market access and mobility to facilitate commodification and growth. Western integration continues to be a dynamic process that demands a sufficiently clear distinction between in- and outside. I submit that there is a foundational norm on migration reflecting and managing that distinction and rooted in European integration.Footnote ¹ I describe it as a staple of EU history from the 1950s until today.Footnote ² It combines a promotional and a repressive aspect in that it packages the acceptance of the freedom of movement for nationals of cooperating parties with the power to exclude nationals from countries outside the group. The foundational norm on migration comprises three dimensions. First, the nationals of a party bound by it are privileged by the freedom to move within the territories of all parties, and, conversely, that party is obliged to accept the entry of nationals of other parties. Second, a party retains the right to exclude colonial subjects and third country nationals from that freedom. Third, a minimum of migration control obligations is imposed on all parties.

Historically, this norm is rooted in the inscription of a freedom of movement for EC workers into the Treaty of Rome. Being one of the four freedoms gives the norm a quasi-constitutional quality, yet its story is usually told without mention of its repressive price. As the negotiating history of the Treaty of Rome indicates, political acceptance for the freedom of movement was conditional on the exclusion of the Member States’ colonial subjects. Economic growth of the metropolis was imagined to be contingent on the mobilization of metropolitan European workers, while relegating workers from European colonies and those of third countries to an outside.Footnote ³ This dovetails well with the heritage of colonialism in areas such as European human rights law as interpreted by the ECtHR. As Thomas Spijerkboer argues in Chapter 4 in the present volume, current-day migrants, being people from former European colonies, are subjected to a split form of legality that was perfected at the end of the colonial era. That split form of legality also reverberates in today’s distinction between intra-EU mobility and immigration from third countries, as its legal techniques originate in the heritage of colonialism.

This foundational structure of mobilization and exclusion would remain even after decolonization. In the following decades, the Commission repeatedly made clear that the Member States retain their full freedom to exclude third country nationals, if only they accept the obligation to include workers from other Member States. Generally, ‘freedom of movement’ means the freedom of privileged nationalities to move across borders of the cooperating parties with a minimum of bureaucratic friction, while friction would be maximized for undesired populations from third countries. Until the 1970s, it was workers who were central to freedom of movement, but with the case law of the European Court of Justice, this freedom gradually became a privilege of all citizens of Member States.

As serious work began to promote freedom of movement with the Single European Act in 1986, it became clear that the privilege to exclude third country nationals successively morphed into an obligation. The realization of freedom of movement presupposed obligatory “flanking measures” as the precursors to today’s main legal instruments as the Dublin Regulation, the Schengen Border Code and the Visa Regulation.

With successive phases of enlargement, the foundational norm on migration expressed itself in novel ways. The question of how the citizens of acceding states would use their novel freedom of movement was central in political debates. Already before formal membership, candidate countries were offered the privilege of accelerated circulation in the form of visa-free travel for their nationals while assuming obligations on border control and refugee protection in exchange. This led to readmission agreements under international law, concluded in conjunction with visa liberalization agreements, all of which became moot once the candidate was admitted to the EU. It follows the pattern established by the liberalization of trade since the 1930s, which first manifested itself in bilateral agreements, and later served as a model for the multilateral GATT.Footnote ⁴ After enlargement, the foundational norm manifested itself in the privileged position of EU citizenship bartered against a full set of acquis norms on border control and refugee protection.

Today, after the 2004 and 2007 EU enlargement rounds, few states are left to permanently integrate into the project of Westernization (negotiations are ongoing with Montenegro, Serbia and Turkey; Albania and Macedonia being official candidates). This takes the foundational norm to its limits. The 2016 EU–Turkey agreement contained a barter element on visa-free travel, which is of great significance to the Turkish side. Its implementation appears to be forever postponed, as the EU Commission believes that its agreed preconditions remain unfulfilled. Ongoing negotiations with Tunisia and Egypt barter readmission of migrants against simplified visa procedures, illustrating very clearly that citizens of these countries are at most given a privileged position amongst the excluded.Footnote ⁵ The February 2017 France–Germany note was an illustrative intermediary step: it demanded a mechanism for the ad hoc designation of safe third countries in crisis; it was tailor-made for the Libyan situation, and, realistically, it does not even mention possible bartering with visa-free travel.

How is the foundational norm part of a liberal accumulation logic? When Westernization adds new states to the Western group, these are given privileged access to the overall resources for the purposes of accumulation. The mobilization of Westernizing nationals is an important aspect of this logic, as is the immobilization of third country nationals. Since the 1950s, the assumption prevails that both projects promote growth while enjoying the acceptance of electorates in the Member States. In recent years, central parts of this assumption have been drawn into doubt.

Let us start with the power to exclude third country nationals, which is one of three elements of the foundational norm of migration, as I stated at the beginning of this section. What do I mean by the ‘power to exclude’? In what sense is that a power? In the 1950s context, it was a power to uphold colonial exclusion within a continued domestic competence, untainted by the Rome Treaty. In the phases preceding the two enlargements of 2004 and 2007, it was a power in the sense that Western partners equipped candidate states with the capabilities to control borders, which included the processing of asylum seekers.

In the relationship between the EU and Turkey, it means that Turkey is empowered to process asylum seekers returned from Greece or blocked from onward travel with EU funding. But the promise of visa-free travel to EU countries for Turkish citizens has not materialized yet. So, Turkey offers critical assistance to render the exclusion of third country nationals from the EU effective, but it has not – yet – been given the benefit of facilitated mobility by visa exemption. It is comparable to a person paying the full membership fee for a club whose advantages that person can only use in part. This explains why the conflict between the EU and Turkey is so deep and protracted – the withholding of visa-free travel is really a core element of the ‘non-agreement’Footnote ⁶ between Turkey and the EU. Considering the potential of visa-free travel, which facilitates business and promotes the integration of economies waiving visa requirements for each other’s citizens, the Turkish frustration at EU recalcitrance in this regard is based on a rational and long-term economic interest.

In the Libyan context, the power to exclude manifests itself only rudimentarily. Already under Gaddhafi’s reign, Italy provided speedboats permitting Libyan authorities to pursue human smugglers. It is hardly conceivable that single Member State or the EU would offer Libyan nationals visa-free travel under current conditions and without a functioning central government upholding control over the territory. Without a functioning central government, the EU lacks a counterpart for activities as cooperating with, funding or training Libyan coast guards or border guards.Footnote ⁷ This deprives the EU and its Member States of the carrot needed for the stick on border protection to be acceptable in the long term. The much larger question of how the EU might stabilize a fledgling Libyan governmentFootnote ⁸ that would cooperate on the point of migration control is currently impossible to answer, given the disagreement between EU governments and the recent attempts by Russia and by Turkey to side with competing powerholders in Libya.

Looking back, we realize that the foundational norm on migration has moved from a static logic of ensuring the needs of the labour market to an ever-larger societal project of mobility for wider groups of EU citizens and their families. Third country nationals’ access to the Union has been regulated with a growing number of norms since the 1990s, moving from a few intergovernmental agreements to a dense texture of supranational instruments, of which a core is couched in the form of regulations. Enlargement brought a new dynamic to labour market supply, as a number of new Member States brought with them mobile labourers willing to work under competitive conditions. In these developments, we have two expansions: one moving from a narrowly defined group of labourers to a wider group of persons tout court, and another moving from a relatively static membership to the integration of new members and new partner countries into the system of mobility and border control. The end of both moves is in sight, which calls into question how growth can be produced by better labour supply and better controlled borders in the future.

3.3 Adapting Migration Law to Ageing?

The foundational norm on migration might be based on wrong assumptions on the drivers of growth. Since its inception, it assumes that labour mobility within the EU promotes overall growth in the long term. EU expansion would then provide for a sufficient expansion of the necessary resource base of internally mobile labour. With expansion, the EU would not outgrow itself. This assumption now meets the reality of demographic change – a reality whose long-term effects on the economy have been underestimated up until quite recently. Demographics are probably related in a much stronger way to growth than economic policy. This is a relatively novel insight with profound implications for policy as much as for research. A 2016 paper by the US Federal Reserve research division suggests that demographics are responsible for virtually all of the decline in economic growth of the past thirty-five years.Footnote ⁹

In a 2016 RAND paper, Maestas, Mullen and Powell report the following findings for the US economy:

Against this backdrop, the question of how the demographics of ageing relate to the restrictiveness of immigration and asylum law and policy attains greater urgency. It is clear that the foundational norm on migration did not take the full complexity of how migration relates to growth into account. As any regulatory regime, its core ideas become costlier to revise over time. Seen like this, it might be a good thing that it has come to the end of its lifecycle for non-demographic reasons, stated in the preceding section.

However, we should envisage the possibility that EU asylum and immigration law and policy will grow more exclusionary towards large groups of immigrants, in and beyond the final stages of the model based on the foundational norm on migration. This would be due to an interlocking of democratic and economic factors associated to population ageing. In economic terms, population ageing results in too small a workforce to provide for growth sufficiently large to address domestic inequality. In addition, democracy needs to be factored in: as domestic inequality continues to be pegged at a sufficiently high level, a sufficiently large number of voters supports anti-immigrant policies to express their continuing preference for economic equality.Footnote ¹¹ Also, ageing electorates are more risk-averse in their voting behaviour, suggesting there is limited appetite for a systemic shift, the field of immigration being a pertinent example. This represents a considerable opportunity for populist parties, and it will impact on the formulation of migration law even by mainstream parties seeking to compete with populists on this point. This opens a vicious circle where political remedies for the economic and social drawbacks of population ageing become unavailable.

What could these remedies be? Stimulation of fertility, immigration and raising participation in the labour force, for example, by delayed retirement or the activation of those without employment, are standard methods for keeping up growth in an ageing society. Lately, automation has been added to the list. Pronatalist politics have proven to be ineffective over the long term.Footnote ¹² Their impact on the number of births is modest, as a 2018 study by Clements and others suggested with further references, although they might affect the timing of births, and to have a positive impact on the labour supply decisions of mothers.Footnote ¹³ Expanded immigration and delayed retirement are both unpopular at the ballot box. Also, as migrants age and the productivity of all older workers is impacted by decreased health, neither of them is a straightforward remedy. While acknowledging the importance of delayed retirement as an issue, the question of whom to admit is at the heart of how democracy organizes itself and also how nation states reinvent themselves. On automation, it is probably too early to pass a predictive verdict.

Moving from economic to democratic considerations, the following subsections break down my hypothesis into manageable correlations and discuss research outcomes under each. The question is whether these outcomes, once integrated into the argumentative sequence of my hypothesis, would provide prima facie support of my hypothesis.

3.4 Understanding Ageing and Migration Law-Making

Taken in conjunction, the literature I reviewed supports my hypothesis that a vicious circle of population ageing threatens migration law-making in Europe. How will the ageing of populations in EU Member States affect their making of migration and asylum law? With the research reported above in mind, it is reasonable to expect the perseverance of existing restrictions and the introduction of further restrictions of migration and asylum law. The threat of the vicious circle is not confined to migration law-making, though. It extends to the economic model on which European nation states rely, and, in the long run, it strikes at societal cohesion at large. How does this relate to a broader question pursued in this book, namely to what extent restrictions of migrant rights represent a form of democratic decay in populist times? I shall now consider the themes of democratic decay, populism, and the rights of migrants in that order.

First, add population ageing to the consideration of migrant rights, and see how the diagnosis of democratic decay is pushed far beyond the rule of law alone. Democracy is decaying not only as a particular way of organizing politics (with a loosening of the self-restraint built into it), but also as a depletion of the demographic and economic resources on which any such politics rests. Seen as such, restrictions on migrant rights reach their apex at a moment when the resource base on which democracy rests in ageing societies is giving way. The vicious circle demonstrates the importance of methodological framing for the analysis of migration law and migrant rights to legal analysis. Once we base our work on a wider societal context, including the economy, demography, politics and history of Europe, restrictions to migrant rights no longer appear as a momentary implementation problem. Once we narrow it down and put migration and constitutional stability into separate silos, we are blinding ourselves to the real threats ahead: economic crisis, growing political division and its exploitation by populist actors.

Second, adding demographic change makes contemporary European populism appear as a decline indicator, gaining in strength as the foundational norm on migration is about to reach the end of its geopolitical resources. In its polemics against migrants and their rights, populism exploits the historical dependence of European states – and the EU – on the nativist core that provides the foundational norm on migration with discursive power. This nativist core sees the state, including its supranational extensions in EU law, as ultimately being in service to the nation.Footnote ³⁸ Resistant to any definition, the nation remains an amalgamation of ethnicity, history and demography whose continuity hinges on a permanent distinction between the native and the non-native.Footnote ³⁹ Once it is widely realized that a politics that lives out this idea of the nation is leading ageing societies into stagnation, the nativist case of populists could be expected to unravel. But one characteristical trait of populism is that it shirks political responsibility for how its own assumptions play out in reality. Populists not in power tend to affect and infect the political agendas of mainstream parties, without having to take responsibility for emergent policies. Populists in power work with scapegoat enemies (as the image of stealthy powerholders pursuing population exchange) to whom ultimate responsibility for policy failures is passed on. While European nation states also build on the distinction between the native and the non-native, as populists do, the option of shirking political responsibility for the failure of the foundational norm on migration is not open to them. Populism therefore turns into a strong and dangerous catalyst for the systemic failure in the making. Indicting it as the primary culprit of this failure would be to make too much of it. The European Community invested into nativism in 1958 at the level of its primary law, and if we are hunting for causation, here is a candidate.

Third, the demographic challenge to ageing European societies brings us to consider how contingent rights are on conditions prevailing during finite historical periods. Enshrining rights in binding law and adding institutional guardians for its implementation provides a certain stability, but one which does not withstand major political shocks. For the formulation of migrant rights as we know them today, the demographical, political and economic conditions prevailing between 1958 to 2008 were essential. The wave of restrictive law and practice after 2015 should illustrate as much. As these conditions are slowly giving way, so do the rights of migrants. To state this is not to naturalize the decline of migrant rights, and neither to vindicate those who are actively pursuing this decline. Rather, it suggests how pressing the task of reimagining the very foundation of European societies is.

Taken together, these considerations suggest that it would be wrong to focus on a better implementation of migrant rights alone, as much as it would be wrong to frame populism as a root cause of democratic decay and the decline of rights. Populism is an indicator of a deeper crisis, and not its cause. As we tackle this crisis, we are concomitantly addressing populism, democratic decay and the decline of migrant rights along with it. While the law is a useful tool to remedy single cases of rights violations in the short term, it emerges from the same foundational assumptions that lie behind a long-term and amplifying trend of restrictionist politics. The point is to uncover this shared foundation, and to show that a continuation of politics along its lines amounts to economic and societal self-harm. Teachers and practitioners of law must not get embroiled in a false dichotomy, however. A provisional agenda pushing for the implementation of migrant rights by legal avenues does not contradict the overarching agenda of reforming the very fundament of the European social contract.

3.5 Conclusion

Is a reform blocage of EU migration law likely enough to motivate more comprehensive efforts into researching the blocage and possible ways of overcoming it? Within this chapter, I have provided a first overview of research, mostly stemming from the field of economics. Once we integrate these findings into an argumentative sequence, a continued and more thorough reflection on the vicious circle facing the EU seems definitively motivated. But the hypothesis of the vicious circle starts with the law – a law whose telos of reconciling nativism with limited labour mobility has turned out to be inadequate in the present, and counterproductive for the future of European societies. While I have reflected on the negative consequences of the blocage for migrant rights in the preceding section, the question remains what a new telos for European law might look like. While an answer is beyond this chapter, a number of reflections guiding it might be in order.

First, if capitalism is a driver of politics in the West, how could an anti-growth norm as the foundational norm on migration persist in it over such a long time, and get a new lease of life under populist influence? Is this an indication that the Westernization project of the EU featured ordoliberal tenets, with ordoliberals suggesting that state institutions are needed to bring the market to optimal performance? If that is so, are we wrong to give capitalism too large a role by placing it at the beginning of the argumentative chain in the form of Westernization and the imperative to ensure growth? Once we consider how an ideology of growth contributed to the depletion of natural resources, a response to population ageing cannot be to treat surplus populations and their livelihoods as expendable when seeking to resurrect European growth. That would be to follow the script of colonialism.

Second, longer life in Europe possesses an aura of naturalness, whose normative implications should be challenged. After all, it pushes for a further dismantling of social divisions, and perhaps it will do so on a scale comparable to industrialization. This reminds of Marx’ dictum ‘Alles Ständische … verdampft’, translated as ‘everything solid melts into air’, but actually suggesting that social strata evaporate by virtue of advances in (steam) technology.Footnote ⁴⁰ Today, population ageing flows from an advance in medical technology which possesses the potential to grind down social stratification, including those built on nativist assumptions. At its extreme, the narrative of ageing and diminishing growth translates into an anti-nation-statist and pro-growth argument that is libertarian rather than ordoliberal. The state with its insistence on borders and divisions between nationals and non-nationals appears to be a mere obstacle to growth, an element that is to be grinded down if it behoves accumulation. This threat comes with its reactionary mirror image. It rests on a direct interplay between domestic nativism and an imagined European autochthonous culture, with the state being subordinated to their dialectics. Therewith, the challenge to those of us looking for a new telos that could, one day, become that of the law is to imagine an economic sociability that states of the future should sustain.