Asylum has a pedigree stretching back 4,000 years:
The word ‘asylum' comes from the Greek ‘asylos', that which may not be seized or violated. It referred to a place that was sacred or magical, such as a temple. Those who took sanctuary in such a place put themselves under the protection of the gods and so out of secular control. It allowed time for a wrong to be investigated and a judgment to be handed down. In this sense, temple asylum had a political role to play, until the state itself developed a monopoly of the role of protector.
During the era of the Greek city-states the granting of asylum was constructed for the first time as the right of the asylum granting state. Political refugees or exiles from Greek city-states, rather than criminals, could expect sanctuary or protection in other Greek city-states, sure that they would not be extradited. For a limited period, the tender shoots of political asylum in the modern sense appeared in ancient Greece, before being severely pruned under the Roman empire.
The Roman empire pursued those who challenged imperial authority to the outermost reaches of its jurisdiction. Roman law became the best guarantor of the citizen's safety, while asylum served no purpose for the state, and would only undermine its authority. There was also no recognition of separate jurisdictions.
This sense that Rome was the universe, coupled with the universal validity of Roman law throughout the empire, influenced the emerging Christian church which aspired to the same universality. In 347AD, Emperor Constantine decreed that, since many sought the protection of the church, the church was entitled to grant them refuge. This was the first legal recognition of the right to grant asylum.
In the twelfth and thirteenth centuries, the church was at one and the same time, both primary protector and persecutor. The church protected in order to demonstrate its authority, and in turn was prepared to persecute those who challenged this authority. In 1215, the Fourth Lateran Council extended the ‘stigma of heresy ... to those who sheltered or defended its adherents, and to magistrates who failed to act against them.'
For Machiavelli, writing in the sixteenth century, if asylum serves the state, it should be maintained and, if not, its use should be abandoned. But some counter-reformation theorists replied that the dictates of natural justice should define the limits of civil law - never political expediency alone; while others urged the wisdom of the state always keeping God "pleased and propitious" by "keeping His holy law".
The Huguenots from France in the late sixteenth century, and the Protestants expelled from Belgium (by Philip III of Spain) were lucky enough to be seen as a source of skills and capital in Britain, and had the good fortune of being co-religionists. The benefits derived from granting asylum to the Huguenots have proved lasting, and this event is still cited as proof of Britain's liberal asylum tradition.
The shift from ‘church' to ‘territorial' asylum occurred earlier in Protestant England than on the mainland of Europe, where the feudal system remained in place, in principle till 1648, in practice until the nineteenth century.
The guiding principle of English law was, and remains, territoriality. There was no authority which could force England to extradite a fugitive, and its island status rendered it separate physically as well as politically from other states. It had nothing to gain by expending time, effort or money hunting down foreigners for crimes they had not committed against English subjects or the crown. It was of no concern what those persons had done in other territories.
By the eighteenth century, Britain's asylum practice was a source of irritation to other states. Its reluctance to co-operate with foreign states seeking to extradite criminals, especially those accused of 'political' crimes, and to concern itself solely with what occurred on its territory, was seen as undermining the authority of those states, within their territories.
Gradually, the modern practice of asylum, recognising the territorial integrity of states and the right to control entry to one's territory, was recognised as the norm: no state had the right to enter another state in pursuit of a fugitive.
The idea that liberal states owe a special duty to refugees, in particular political refugees, and especially those prosecuted for their liberal ideology - was put in place later by the French revolution. This would broaden the idea of state interests to include not only material interests but also ideal interests. Asylum from now on was more explicitly linked to the legitimacy of the state.
The Déclaration des droits de l'homme et de citoyen introduced by the French Revolution, however unleashed a paradox that still afflicts the liberal state: How do you reconcile the rights of people qua human beings, which are universal, and qua citizens, which are particular?
From Liza Schuster, ‘Asylum and the Lessons of History', Race & Class 2002 44: 40-56
