Arbitrary Law-making in Today’s Citizenship and Border Control Policies

Disenfranchisement, i.e. being legally barred from exercising political rights, constitutes the thorn in the side of liberal democratic legitimacy as many systems lack incentives to promote rights of these people. The focus is on today’s arguably most critical form of disenfranchisement, that of non-nationals and the exercise of arbitrary power that it embodies. This form of disenfranchisement is seldom put in relation to naturalisation and border control policies: political rights and permission to stay are usually treated separately; emphasis being on democratic legitimacy rather than rule of law. This project changes the outlook: by following the stages of the journey towards franchise that migrants embark on, citizenship and migration policies are viewed from the perspective of how long the route to enjoying franchise is in different countries in the EU. The project develops a basic coding of laws pertaining to these policies. The goal is to elaborate an index for cross-national comparisons of levels of arbitrariness in practices hindering or making the route to enfranchisement longer. This enables differentiation among forms of abuse and legal uncertainty, which is paramount to developing modes of reducing “the rule of men” and enhancing “the rule of law”.