A counterbalancing exception: The refugee concept as a normative idea

The refugee concept is a point of normative contentions. While the state is in general considered free to regulate access to its territory, the refugee concept refers to an exceptional claim to access. The paper explores origin and structure of this concept and its legal codification. The term “refugee” emerges in 17th century, a time in which the political order changes. In the developing framework of the territorial state, the territorial community is viewed as basis of all law. Against the general rule that the state is free to regulate access, political philosophers recognize in different versions the existence of an exception: that the state has an obligation towards the stranger at its border who otherwise faces serious harm. This normative idea of an exception successively joins with the refugee concept. It responds to the basic tension in the territorial state framework, which is based on universalist principles of human equality and freedom, while delimitating rights and obligations along territorial borders. The refugee concept reflects the idea that this delimitation must be corrected in extreme cases for the tension to remain tolerable. In that role of a constitutive exception, the refugee concept forms today both an object and an engine of critique: it can be seen to bolster the state’s discretion in regulating entry, yet it can also assume a role in unsettling this prerogative, representing a cosmopolitan rights claim.