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Theoretical Inquiries in Law

Editor-in-Chief: Hannes, Sharon

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Being Here: Ethical Territoriality and the Rights of Immigrants

Linda Bosniak1

1Rutgers Law School-Camden

Citation Information: Theoretical Inquiries in Law. Volume 8, Issue 2, Pages 389–410, ISSN (Online) 1565-3404, DOI: 10.2202/1565-3404.1155, May 2007

Publication History

Published Online:
2007-05-29

In this Article, I examine a normative idea of territoriality which I call ethical territoriality. By ethical territoriality, I mean the conviction that rights and recognition should extend to all persons who are territorially present within the geographical space of a national state simply by virtue of that presence. I start by briefly reprising a claim I have developed elsewhere — that territorialism is preferable, on liberal democratic grounds, to status-based approaches to immigrants’ rights. Here, though, I set out to interrogate the logic of ethical territoriality itself. I ask why the mere fact of a person’s territorial presence should serve as the basis for rights and recognition. Further, even conceding that it should, I ask how this commitment is to be operationalized. What is the scope of the territory in which presence figures so significantly in normative terms, and who, precisely, gets access to presence in that territory? My purpose in this Article is to get beyond the status vs. territorial presence-as-basis-for-membership dispute in the immigration debates and to begin a (self-) critical discussion of the ethical territorial commitment itself.

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