A Minimal Liberal Defense of (Some) Discrimination in Migration Regulation

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Discriminatory treatment of immigrants is often considered morally objectionable. However, principles of non-discriminatory treatment of immigrants after their admission to a state can discourage economic immigration flows that would greatly benefit immigrants and their home states. Is discrimination therefore justified? This article employs a minimal liberal framework of analysis to suggest an analytical rather than instrumental moral basis for some forms of discrimination against immigrants. The minimal liberal framework is contrasted with a weak Paretian framework that is ex ante structurally prejudiced towards an egalitarian outcome and fails to distinguish between the distinct implications of different types and degrees of discrimination. The analysis shows that discrimination against immigrants can be justified, so long as it does not entail violations of immigrants' substantive human rights. Furthermore, immigration-encouraging discrimination is found to be preferable to immigration-deterring discrimination, although the latter is also justifiable. While the minimal liberal framework is not necessarily advocated as the preferred decision-making rule, its use demonstrates that the morality of broad principles of non-discrimination towards immigrants should not be taken for granted.
Original languageEnglish
Pages (from-to)575-599
Number of pages25
JournalFordham International Law Journal
StatePublished - 2013


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