Work on better law-making and quality of legislation has boomed over the last decade. It is often cast as a gateway to law that better lives up to its very nature of rule-making in a normatively valuable sense, where societal challenges can be meaningfully tackled and goals achieved. There is a growing literature on the...
Arbitrary Law-making: Analysis of a Contested Concept
Arbitrariness is detrimental to the legitimacy of any rule in a deep and decisive way. Yet, it is poorly understood and underexplored. This is regrettable because we need a better and more articulate understanding of it in order to use this key notion, in particular with regard to the so-called constitutional quality of legislation. In...
For a social theory of migration law
The social theory of migration has attached a marginal role to the State and the law, focusing on demographic, economic and social factors instead. Much of the literature argues that attempts to regulate or limit migratory flows fail in all major industrialised democracies (Hollifield, Martin, Orrenius 2004; Castles 2004). Others have explicitly criticised this idea:...
Legal Drafting Tools to Prevent Arbitrariness in Discretion
Discretion comes with the possibility to choose between different legitimate solutions, involving a significant amount of power for administrative authorities. The paper discusses discretionary powers, identifying situations in which it is acceptable to grant such powers and the existing legislative drafting tools to impede discretion to turn into arbitrariness. The paper addresses three issues. First,...
Preventive Entry Policies as a violation of the Right to Leave
Current practices of “interception-at-sea“ preempt many travellers, from irregular migrants to would-be refugees, from claiming a legal right to enter the EU. This policy often hinges upon the consent of the sending country to agree to have its waters policed by foreign maritime authorities and to accept the return of migrants provided that countries of...
Shadow Legislative Processes: Is Detention of Stateless Persons an Arbitrary Law-making Practice?
ECtHR case law clarified that Article 5(1)(f) authorises lawful detention, contingent on the possibility of effectively removing the alien within a reasonable amount of time. Stateless migrants are not considered as nationals by any state: there is no prospect of removing them. They often have no way of officially being recognised as such, and are...