New York University Public Law and Legal Theory Working Papers

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Philosophical writing about immigration is typically organized around two broad moral principles. The first is the principle of self-governance, according to which a political community has a right todetermine its own membership and character—control generally thought to encompass the power to exclude outsiders from the territory. The second is the principle of simple territorial equality, according to which a sovereign must treat equally all people who are present within the territory over which itgoverns. Immigration scholarship generally assumes that these two principles are correct and is given over to thinking of ways to jointly satisfy these principles. We argue that this approach is mistaken. Under current and foreseeable conditions, it is impossible to jointly satisfy these principles. The best response to this dilemma is to abandon the implausibly strong principle of simple territorial equality andreplace it with a more flexible view that draws on our best understandings of political and social equality from outside the immigration context. Doing so demonstrates that policies that give somewhat limited rights to certain immigrants, such as guestworker policies, should not be categorically rejected.

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