The Right not to Have Rights: A New Perspective on Irregular Immigration

In recent years irregular immigration has attracted increasing scholarly attention. Current academic debate casts the irregular immigrant in the role of the new political subject who acts out a right to have rights and/or as the rightless victim who is subjected to violence and abuse. However, the conception of the irregular immigrant as harbinger of political change and/or victim reifies the persistent dichotomy between inclusion and exclusion. It ignores that irregular immigrants are not by definition excluded from a normal life and that numerous immigrants live in the interstices between full legal inclusion and exclusion without democratic legal order being cast to ruin. The question that underlies this essay is: What concept of law can accommodate the unauthorized presence of immigrants (i) without reducing them to bare life, struggling to survive and/or assigning them a political agency and (ii) without taking recourse to the use of force and violence in a zero-tolerance policy? To answer this question, this article draws on what Agamben has coined the potentiality of the law and unpacks Judith Shklar’s idea of different degrees of legalism