所有論から考察する非正規滞在者の地位

Undocumented immigrants’ legal standing, from the perspective of ownership theory

Urakawa Genjiro

廣島法學

The Hiroshima Law Journal

[ISSN] 03865010

[NCID] AN0021395X

The aim of this article is to consider the legal standing of undocumented immigrants who remain in a country for an extended period of time despite their illegal status. This consideration is accomplished in reference to ownership theory. Referring to several philosophical and constitutional theories of law in English countries, this article critiques category-mistakes that are based on the historical connection between land ownership and sovereignty and the false application of adverse possession theory to the question of immigrants’ standing (i.e., legitimizing the acquisition of citizenship in terms of the theory of adverse possession in civil law).
Additionally, this article suggests an alternative legal and political philosophical perspective, based on the concepts of “person, self, and changing relationships”, with references to the insights of sociology and philosophy. This alternative may be a better means for assessing the standing of undocumented immigrants, from the perspective of our practice, possibility and suitability to current legal system, integrity of the value construction respecting to self-autonomy, and moral sense. Furthermore, the alternative also suggest some elements when we consider the question, “when illegal immigrants will be not illegal?”.
This article, of course, has its limitation, particularly as regards the relations between “person and self” and “person and obligation (i.e., liabilities, duties, burdens, and responsibilities)”. Thus, these questions will be addressed by the author in future studies.

jpn

広島大学法学会

許可なく複製・転載することを禁じる

[ISSN] 0386-5010

[NCID] AN0021395X