Evaluating ‘Life Steeped in Power’: Non-Domination, the Rule of Law and Spatial Restrictions for Irregular Migrants

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Irregular migrants in Europe are increasingly subjected to state coercion, surveillance and spatial restrictions, such as containment, dispersal and forced transfers. Lawyers usually evaluate such practices in the light of human rights law, which only provides limited protection. For this reason, I propose an alternative normative framework to evaluate and assess coercive state practices towards irregular migrants: the concept of freedom as non-domination. In this article, I conceptualize non-domination from a rule of law perspective. To this end, I start from Lovett’s procedural account of arbitrariness; and complement this with Benton’s focus on unaccountable power and Palombella’s argument for ‘duality of law’. In the second part of this article, I apply this normative framework to coercive practices in shelters for irregular migrants in the Netherlands. This allows me to demonstrate the practical relevance and consequences of the theory. It discloses how the protection of freedom as non-domination, conceptualized from a rule of law perspective, sets more demanding criteria for the (courts of) law than the protection of human rights. At the same time, it does not require non-interference or elaborate positive obligations from the state. For irregular migrants, who do not have the right to reside in the territory, but who are entirely under the control of state power, non-domination as conceptualized in this paper provides, in my view, a necessary framework of review that ensures a kind of protection that is currently lacking.

Original languageEnglish
Pages (from-to)399
Number of pages420
JournalHague Journal on the Rule of Law
Issue number3
Publication statusPublished - 12 Oct 2020


The author would like to thank Frank Lovett, Mentko Nap, Bas Schotel, Wouter Veraart and the anonymous reviewers for their helpful comments on earlier drafts. An earlier version of this article was presented at the 2020 winter meeting of the Netherlands Association for Philosophy of Law and at the 2020 Vakgroepdag of the department of Constitutional, Administrative Law and Public Administration of the University of Groningen.

FundersFunder number
Netherlands Association for Philosophy of Law
Rijksuniversiteit Groningen


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