The first part of our symposium on Joseph Carens’s The Ethics of Immigration is now concluded. While we wait for Joe to compose his reply, here’s an index of the contributions:
The Ethics of Immigration symposium: So what does The Ethics of Immigration tell us about the European Union?
So why did the organisers of this symposium also offer the opportunity to a European Union lawyer – not a theorist mind, but a vanilla lawyer – to make a comment on Joseph Carens’ magisterial book on The Ethics of Immigration? It should have been obvious that I could add nothing to the excellent contributions by other normative theorists who are commenting directly on these aspects of Carens’ work. So it must have been for some other reason.
It was presumably in order to provoke a reflection upon the peculiarities of the EU’s own combined system of internal soft borders (‘free movement’) and external hard borders (‘Fortress Europe’, some might say) in the light of Carens’ arguments about the ethical demands of states in relation to borders and migrants. To that extent, my reflections are less about the book than about the issues which the book is helping me to think through – and for that I am very grateful to Joseph Carens for his wonderful text and also to the organisers for indulging my preferences.
Now EU internal free movement is not unconditional; incomers should be totally self-sufficient for the first three months and thereafter there is no right of residence under the EU treaties or secondary legislation for a person who is an ‘unreasonable’ burden on the host state. Carens recognises this characteristic of the EU system when he states that a form of free movement which does not give incomers immediate access to all aspects of the host social and welfare systems represents an ethically acceptable outcome. Carens would be less pleased, doubtless, by the continuing ability of Member States to deport EU citizens on public policy or public security grounds, provided they can demonstrate that such persons represent a present and continuing threat to the host state, and even after they have reached the so-called safe harbour of ‘permanent residence’ after five years. He reserves some of his harshest criticisms for systems which routinely deport foreign national prisoners, and he would probably be alarmed to discover that despite the protections in law for EU citizens (e.g. individual determination of risk, protection of family life, etc.), in practice harsh decisions are made at the national level and the system does not quite work in practice as it was intended, as we discovered in a recent project when you dig below the surface.
In contrast, the EU is a polity with hard external borders in almost every respect. The system is, though, quite complicated. It is an area of shared competence, but with scope for some states to opt out of many key aspects. For example, the UK and Ireland opt out from many aspects of the legislative framework in place to deal with immigration from third countries, with the exception of measures related to the treatment of asylum-seekers and the process for the determination of asylum status, and many of the measures related to what is now termed on the Commission’s website ‘irregular immigration’ (although the word illegal still sticks in most media discourse). However, the overwhelming majority of the EU-level measures are those related to the policing the external border against irregular incursions – demanding the sanctioning of carriers and employers and managing the external border more effectively, which often means externalising various aspects of border control e.g. through readmission agreements. The UK and Ireland do generally opt out of the limited number of measures related to regular migration, e.g. on family reunion or the rights of long term residents. Meanwhile, the fundamental issues of ‘choice’ in relation to the selection of migrants from third countries remain largely with the Member States. Member States are free to set their own levels of immigration from third countries.
In one key respect, the stark distinction between the outside and the inside is much more blurred and this is one area where the EU system (which in practice is a combined multi-level system of shared competences with the Member States) raises some ethical questions. One group of third country nationals who have free access to the EU – and thus to the enormous benefits of rights of residence, right to work, freedom of travel across the Member States – are those who also have the citizenship of one of the Member States. As Member States are free to determine their own regimes of citizenship acquisition and loss, provided that in so doing they abide by the key principles of EU law such as non-discrimination, they remain free to institute ethnic preferences for those residing in other states in relation to the acquisition of citizenship. This has long been the situation with Italian and Greek citizenship. Italian citizenship is easy to re-acquire for those able to show an Italian ancestor. Greek citizenship is in fact quite hard to lose. Some new Member States have strong ethnic preferences making external citizenship possible for those not only in widespread global diasporas, but also in the near abroad (e.g. Hungary’s kin state minorities in states such as Serbia, or Croatia’s minorities in Bosnia and Herzegovina) residing in states which aspire to membership of the European Union at least in the medium term, but whose citizens have tired of waiting for the wheels of conditionality and Union absorption capacity to wind around to the ‘ready’ position. Unsurprisingly, citizens in those circumstances look around themselves to see what opportunities might lie in acquiring a new passport based on ancestorship or some sort of even tenuous kin state link.
Moreover, we should not be surprised at the surge in various schemes of ‘investor citizenship’ (e.g. in Malta and Cyprus) or ‘investor residence’ (in almost all Member States in one form or another). Protected not so much by the Member States’ ethical preferences to have a system of human capital development based on free movement and the right to work across a substantial open market, but rather by the link between the free movement of persons and other elements of the single market (free movement of goods, services and capital), Member States are relatively free to treat access to citizenship as a fungible asset. Only ‘relatively free’, though, as there have been plenty of behind the scenes conversations between national governments and the European Commisson, as the latter has sought desperately to assert the higher value of intra-EU solidarity and loyalty between the Member States as a means of holding off the crassest of efforts to commoditise passports.
It might be comforting to think that the EU system of free movement represents a bulwark in a world of states that seem increasingly hostile to immigration, despite immigration being both a complement to globalisation, global inequality and continued insecurity within and across state borders. Indeed, despite the hostility to many aspects of the free movement of persons seen not only in the UK but also in many Member States in recent years, there has as yet been little evidence of the whole structure unravelling, although – as I just suggested – not for ethical reasons, so much as because the Member States are aware that it is impossible to sever the free movement of persons from other aspects of the single market to which they are committed for political and economic reasons. But states are free to ramp up a discourse distinguishing between good and bad EU citizens, and they find willing collaborators in the media. The increasing gap between the rhetoric of free movement and the actual experience of many of those who take advantage of these rights, highlight that intra-EU free movement is now politicised in exactly the same ways as any other form of immigration. In that context, identifying and the advocating for an ethical course is just as hard inside the EU as it is across the EU’s external borders, or in any other immigration context.
Jo Shaw holds the Salvesen Chair of European Institutions at the University of Edinburgh, UK
Clark Stoeckley's graphic account from inside the Chelsea Manning trial is released today, marking its first anniversary. Below: Chelsea Manning's testimony on her treatment in prison. Content warning: state violence, discussion of suicide.
INFORMAL LOGIC is a peer reviewed journal publishing articles and reviews on topics related to reasoning and argumentation in theory and practice. It is deliberately multi-disciplinary, welcoming theoretical and empirical research from any pertinent field, including, but not restricted to, philosophy, rhetoric, communication, linguistics, psychology, artificial intelligence, education, law. http://ojs.uwindsor.ca/ojs/leddy/index.php/informal_logic
Vol 34, No 1 (2014)
The appearance of Joseph Caren’s book, The Ethics of Immigration, has been a long-awaited event and it does not disappoint. The breadth and depth of its vision is extraordinary and it will shape the debate for many years to come as an indispensable text. It also gives those of us who teach the ethics of migration on our courses the chance to introduce our students to that vision in its entirety, instead of guiding them to glimpses of it in journal articles and book chapters.
However, my task here is not to praise Joseph and his book, but to raise challenges to which he can respond so that we can continue the dialogue he began in the 1980s. Therefore I have to do something that is very difficult and strange to me, and to write contra JosephCarens.
Despite the fact that I have been arguing for the ethics of open borders and that Joseph’s work has had a foundational role in those arguments, I have always been aware that there is an area of difference, and it is one that he reflects on in his book, especially in the Appendix, where he discusses method. That difference is whether as theorists we should argue directly for open borders, or whether we need to get there step by step. I have taken the direct position, while, despite the fact that we agree on the ultimate destination, Joseph has taken the view that we need to move more slowly.
His book follows that pattern, with the first ten chapters addressing the ethical dimensions of specific issues such as the status of temporary workers, irregular migrants and refugees, and the last three arguing for the ethics of open borders. The first ten chapters do not rest on any arguments for open borders, and indeed Joseph says that in those chapters he is working within the framework of what he calls the Conventional View, one that presumes that states have the right to discretionary control over who crosses their borders. In the last three chapters he argues that this Conventional View is wrong, but it is possible to accept all of his arguments in the first ten chapters without abandoning it.
Joseph explains why he takes this approach in the Introduction and the Appendix. He is, he argues, doing political theory from the ground up. By this he means that he is not working from any specific theoretical framework about justice or democracy or human rights, but instead is drawing on widely shared democratic ideas and principles that he finds in the major liberal democracies in the world today. He is relying on an “overlapping consensus” about what democracy requires (p. 9), a consensus that includes political theorists and ordinary democratic citizens. What emerges is a “general account of how democrats should think about immigration” (p. 10).
Part of this approach is to work with the Conventional View for as long as possible because that is certainly part of the overlapping democratic consensus – those theorists and democratic citizens who believe in freedom of international movement are out on a very isolated limb.
There is a pragmatic element to this approach: “…if I am to have any hope of persuading people of the merits of my views on the other issues that I discuss…, I must not tie those arguments to the case for open borders” (p. 11). I have certainly felt the force of that pragmatism when debating the ethics of migration in the public sphere, most recently when a discussion I was engaged in about what a just immigration policy would look like came to a sudden end when my opponent noticed I was prepared to argue for open borders – there was no longer any need to take my arguments seriously even though none of them at that stage rested on the open borders position.
But Joseph insists this is not only pragmatism – it is “a principled commitment to a certain kind of dialogue” (p. 11). Democratic deliberation as a practice involves adopting moral views that are widely shared in the democratic community, even when we as participants may not agree with those specific views. Otherwise democratic dialogue could not take place, as my experience shows.
In the Appendix Joseph elaborates on this method. He makes it clear that all debate requires presuppositions in order to start, even though those presuppositions may well be questioned at another stage – we cannot question everything at once. To illustrate this he draws a continuum between what he calls the Just World presupposition (p. 301) which takes very little as morally given, and the Real World presupposition (p. 303) which addresses questions of justice in the context of the world as we more or less find it, morally and institutionally
Both approaches have their advantages and disadvantages, but Joseph believes there is a third way, which he calls the Democratic Principles presupposition (p. 306). All that is presupposed here is a commitment to democratic principles: we can address issues of migration by thinking about what justice requires in terms of the principles we find in the contemporary democratic tradition.
The question of where we start the argument, what presuppositions we hold and why, is a very complex one, and Joseph’s method is attractive in that it enables us to avoid the need to establish controversial foundations. As he points out, the Just World presupposition (which most closely captures my own approach) forces us to address some fundamental theoretical issues which require a wider moral theory or moral theories, such as a fully worked out theory of human rights. If we take Joseph’s approach we can take human rights as we find them in liberal democratic theory and practice, and discuss the ethics of migration in that context. If we take my approach, as I am all too painfully aware, we need to more or less start again.
However, there is still a misgiving I have about Joseph’s alternative. The Just World presupposition, at least as I understand it, is built upon a commitment to moral equality, the equal moral worth of all human beings. But this commitment does not appear out of nowhere, not least within the Just World – it is already here, embodied in the democratic principles that Joseph makes central to his work. The critical point is that this commitment to moral equality is not fully worked out in democratic practice as we find it. If it were, we would move directly to a recognition of the right to international movement, because it is only in a political order which embodies that right—amongst others – that moral equality is fully realized. The dialogue we are engaged in, then, is to draw out the contradictions and arbitrary limitations upon the force of that democratic principle until we arrive at the ethical position of open borders. What we are doing is placing contingent and arbitrary features of the political world such as national borders, nation-states and national identities against the non-contingent moral equality of the migrant, and pointing to the moral force of the latter.
For me, then, it is the commitment to moral equality that drives the argument and drives it to its moral conclusion, but the point is that this commitment is embodied in liberal democratic theory and practice – all we are doing is pushing for consistency.
So what disagreement can there be with Joseph Carens here? In many ways this is precisely what he is doing in his book. If there is a disagreement is it this (and I’m not sure it amounts to much): that what the principle of moral equality reveals from the outset is the case for open borders – therefore as soon as we point out the force of the principle, we can already see our destination. We cannot apply the principle of moral equality to specific issues—like the position of temporary workers, irregular migrants and asylum seekers—without revealing our ultimate answer. In other words, the Conventional View is already revealed to be mistaken.
The fact is that Joseph mentions the principle of equal moral worth on page 2, in the introduction to the book, as one of the democratic principles he is working with, those “broad moral commitments” that underlie and justify contemporary liberal democratic institutions. But it does not appear again until page 226 which is, interestingly, the beginning of the case for open borders. Equal citizenship does get discussed in the first part of the book, but the dialectic of the argument is surely that even at this stage the principle at work here is that of the equal moral worth of all human beings, not only our co-citizens.
And so the question is why the principle of equal moral worth is given as one of the basic democratic principles and moral commitments at the start of the book, but disappears from view only to re-emerge at the start of the section arguing for open borders? The answer may be that it does not disappear at all but gets disguised as the principle of equal citizenship, only to cast off that disguise at the opening of chapter 11. But this is to assume that the disguise is impenetrable during those first ten chapters. My point is that the import of the principle of moral equality is more obvious than that, such that we can see through the disguise from the outset – and by ‘we’ here I mean anybody committed to democratic principles.
This is, of course, a minor difference – perhaps not even a genuine one – and is based on a shallow reading of a book with enormous depth. It is one I shall be reading for many months, perhaps years, in order to fully grasp its arguments, and my respect and admiration for Joseph Carens can only grow with every reading.
Phil Cole teaches Politics and International Relations at the University of West of England, Bristol. He is author of Philosophies of Exclusion: Liberal Political Theory and Immigration (Edinburgh University Press 2000), and, with Christopher Heath Wellman, Debating the Ethics of Immigration: Is There a Right to Exclude? (Oxford University Press 2011).
This is a fantastic symposium inspired by a fantastic book, and it is clear that all the contributors agree on at least one key point: Joseph Carens’s majestic The Ethics of Immigration is an intensely important text and all of us are deeply in debt to Carens’s work on this crucial subject. There is no doubt that over the years Carens has done more than anyone else to bring the ethics of immigration to the attention of mainstream Anglo-American political philosophy, and he has set the agenda for the discussion for many years to come.
From that shared starting point, the commentators then fall into two groups. There are those who are in broad agreement with most of Carens’s conclusions and are generally sympathetic to his overall agenda (but may disagree with parts of his approach, and even may wish to push his open borders arguments further). And there are those who disagree with a number of Carens’s conclusions and are less sympathetic to his overall agenda. I fall in with the first group; my comment is intended as a friendly intervention, which also takes seriously some of the concerns of the second group (concerns not necessarily expressed directly in the symposium pieces, but which appear in writings elsewhere). And rather than go over terrain that has already been covered in the symposium, I want to concentrate on one particular point regarding Carens’s argument from democratic principles.
Carens introduces his project in the book thus: ‘I want to show that debates about immigration raise ethical questions, that many of these ethical questions are interconnected, and that a commitment to democratic principles greatly constrains the kinds of answers we can offer to these questions’ (p. 2). As far as I can see, almost all of the political philosophers working on the ethics of immigration (across the spectrum of views on the subject) agree with all of that. Of course the more controversial part is how far democratic principles actually constrain things in the direction of more open borders and away from more state discretion with respect to immigration policies.
As Carens makes clear at the outset, he is employing ‘the term “democratic principles” in a very general sense to refer to the broad moral commitments that underlie and justify contemporary political institutions and policies through North America and Europe’ and he notes that ‘others might use the terms “liberal” or “liberal democratic” or “republican” to characterise the principles and ideas for which I use the term “democratic”’ (p. 2). In short, he isn’t using ‘democratic principles’ in a narrow sense to refer just to the principles that may flow from a commitment to something like ‘rule of the people’.
I wonder whether, in taking such a broad approach to ‘democratic principles’ throughout and not really focusing on democratic principles more strictly construed, Carens may be giving short shrift to what is one of the most potent democratic arguments in favour of states and their citizens retaining greater control over their immigration and naturalisation policies. Now, I share what I think is Carens’s (and Arash Abizadeh’s) view that, ultimately, democratic principles (more strictly speaking) do not provide support for the idea that states have what Abizadeh has called a ‘unilateral right’ to keep out unwanted immigrants. But I think it takes quite a bit of work to get there (as I try to show in my forthcoming book, Immigration and the Right to Exclude), and I also think that there are powerful arguments on the other side.
One of the principles which Carens mentions under the heading of ‘democratic principles’ is what we might call the more ‘strictly democratic’ idea ‘that legitimate government depends upon the consent of the governed’ (p. 2). It is this more narrowly democratic of Carens’s principles that I will focus on here. For our purposes, we might just talk about it as the principle of self-government.
In his seminal discussion of this in Spheres of Justice, Michael Walzer argued that if we are committed to the principle that legitimate government depends on the consent of the governed then we should also be committed to the principle that resident non-citizens eventually ought to be granted the opportunity to become citizens and obtain full rights to political participation. In the absence of that option, resident non-citizens are governed without their consent, at least insofar as they are subject to the state’s authority without any say in the making of the law. Just as famously, though, Walzer also argued that, while they are not entitled permanently to withhold citizenship from long-term residents, states must have a right to choose whom to admit in the first place (and thus who may become a citizen). Without such a right, they would not be able to maintain control over their own membership practices and, by extension, their own ‘common life’. In effect, Walzer develops an argument apparently based in part on ‘democratic principles’ in defence of what Carens calls the ‘conventional view on immigration’, which is that states are ‘morally entitled to exercise considerable discretionary control over the admission of immigrants’ (p. 10).
Walzer sets up an important challenge here for democrats because he gestures towards two sides of the democratic connection between legitimate government and the consent of the governed. On the one hand, there is the side which suggests that all those who are governed ought to have a say in the practice of government (‘the governed’, in Walzer’s view, includes all long-term residents, rather than just existing citizens). That is democracy’s inclusionary force. On the other hand, there is the side which suggests that only those who are governed should have a say—it is for the governed, and the governed alone, to make the decisions about their common life. It is not for others, who are not governed by that government, to take part in the governing process. They must remain excluded from governing. Why? Well, because it’s the future of the governed that is on the line. The governed are the ones who have to live with those decisions and build their lives around them. Walzer argues that decisions about admitting immigrants, as potential future members, are just the sorts of decisions over which the governed ought to have control.
I would expect the average voter shares Walzer’s belief that democratic principles, in the narrow sense relating to self-government, support the conventional view on immigration, i.e. that states are entitled to a large degree of discretion over immigration decisions (even if she might disagree with Walzer’s arguments about the inclusion of resident non-citizens). I’m not sure that Carens actually challenges head on that particular, very popular view of the implications of democratic principles, and yet doing so successfully would enhance his case in the second part of the book against the conventional view.
Now, we can use Walzer’s starting point to try to push the democratic argument in a more inclusionary direction than Walzer does himself. While agreeing that all the governed and only the governed should have access to a say in the making of the law, we can attempt to show that in many cases ‘the governed’ comprises not just residents of the state but also extends or can extend to people beyond the states borders. We might do this by arguing that being ‘governed’ in the relevant sense is, say, to have one’s interests affected by the state’s policies, or to be subject to coercion by the state in question, or to be part of some other set, as a variety of political philosophers have done. And then we might try to illustrate the various ways in which people beyond the state’s borders may have their interests affected or may be subject to coercion, and so forth. One of the more obvious ways in which people outside the borders of a state seem to be governed in the relevant sense is via the state’s immigration laws, for example. If that is right, then we can begin to marshal a democratic argument against Walzer’s more restrictive view, along the lines that unilaterally imposed immigration restrictions lack democratic legitimacy when they serve to ‘govern’ would-be immigrants without giving them a say in the making of those decisions.
Nonetheless, we still have to be aware of the important insight in the second part or side of the democratic principle of self-government: that those who ought to have a say in the making of state policy are those who have to live with the decisions. Most democrats don’t think that tourists should get a right to vote in national elections while they are temporarily present in a country, and in part that’s because they won’t be sticking around to bear the consequences. They won’t have to live with the decisions. They are not included within the governed in that sense.
One of the key reasons this represents a challenge to more inclusionary readings of democratic principles—the kind which point to the ways in which the practices of states may demand some forms of inclusion for those currently beyond borders—is that being governed in the sense which appears to demand access to political participation (e.g. being subject to coercion by some or other law, in the manner of would-be immigrants) may not always coincide with being governed in the sense of being one of those who has to live with the state’s decisions, or at least not all, or not the majority,or even not a large number of the state’s decisions. It looks as though it is normally—not always, and in all cases, but normally—residents of the state who shoulder much more of that burden. There are many decisions, aside from immigration related ones, which do not seem to ‘govern’ non-residents in the relevant sense. And so it appears that there are a lot of important questions to answer here in order to show that the arguments for greater inclusion of current non-residents really are in fact properly consistent with the complete ‘democratic principle’ of self-government. I think this challenge can be met, and I try to do that in my book, but I also believe that democrats need to take it very seriously.
Does Carens take that side of the principle of self-government seriously enough in his book? He is clearly very serious indeed about the moral salience of ‘membership’ in a particular sense. Towards the end of the book, he reiterates that he thinks ‘ongoing subjection within a political community has great moral significance. That is precisely why I argued… that those who settle permanently within a political community should be regarded as members and given access to citizenship. Not everyone is a member, and membership does matter morally. Even if borders were open, there would still be important and legitimate distinctions between a state’s responsibilities for those within its borders and its responsibilities for those outside’ (p. 257). In what ways does membership matter morally? For Carens, that’s partly explained by his own theory of social membership, already discussed at length in other contributions to this symposium, the central gist of which is that ‘living within the territorial boundaries of a state makes one a member of a society, that this social membership gives rise to moral claims in relation to the political community [claims to legal rights and to legal status], and that these claims deepen over time’ (p. 158).
Yet I don’t think that he explains why democratic principles, at least in the narrow sense, do not support the right of insiders (long-term residents) to decide whether non-residents may join the community. That doesn’t matter so much if you accept his argument in the second part of the book that there is a human right to international freedom of movement. If that part of his argument is correct, then insiders would not have a general right to try to keep would-be immigrants out anyway. As Carens notes, however, that is one of the most controversial aspects of the book, and many people will not go all the way with him on that point. So it seems to be worth trying to push the argument from democratic principles (narrowly construed) further, in an attempt to show that those who are committed to the principle of self-government actually are also committed not just to the extension of citizenship to long-term residents, but also to resisting the state’s unilateral right to exclude would-be immigrants.
As I noted at the start, though, this is a friendly intervention. I find myself in agreement with so much of what Carens writes that I can only conclude he must be very sensible indeed and absolutely right!
Sarah Fine teaches political philosophy at King’s College London. She the author of Immigration and the Right to Exclude and the co-editor (with Lea Ypi) of Migration in Political Theory: The Ethics of Movement and Membership, both forthcoming with Oxford University Press.
Political theorists are much indebted to Joseph Carens for his 1987 article “Aliens and Citizens: the Case for Open Borders”. Written in a period of increased restrictions on migration, Carens’s article was pioneering in two ways: it introduced the migration question to political theory’s agenda and set the terms of the debate from the free movement side. Carens’s recent book, The Ethics of Immigration, is less pioneering. It explicitly aims to engage with the “conventional view of immigration” and to show that it can accommodate some measures which improve citizenship and admission policies. The open borders argument is not abandoned but is left to only one of the twelve chapters. Carens’s main concern, however, is to show that the open borders argument does not conflict with the measures he proposes.
It is possible to have the opposite concern: are the proposed measures a way to advance towards a world of open borders? In other words, is Carens still advocating open borders? My analysis here will be limited to the first measure he proposes in the book, this is that “justice requires that democratic states grant citizenship at birth to the descendants of settled immigrants” (p. 20). Whether justice requires this or not, many “democratic states” already conform to this principle and my argument is not that they should stop. Rather, my worry is that such an argument is not a way to advance towards an open borders world.
My view is that by advocating some “true criterion” of whiteness we reinforce the power of those who believe that racial distinctions are relevant. In the same way, advocating “true criteria” about who “deserves” to be citizen or cross a border is a means of reinforcing the power of those who close the borders.
In what follows, I analyze on a parallel basis the idea that “justice requires that democratic states grant citizenship at birth to the descendants of settled immigrants”. I argue that by its justification, scope and method of implementation method, this idea moves us away from, rather than get us closer to, an open borders world. But before this, I will briefly present an epistemological problem that social scientists call “methodological nationalism”.
What is methodological nationalism?
“Methodological nationalism” is an assumption which equates “society” with the nation-state. In the 1970s, sociologists were the first to realize that regardless of their theoretical orientation, their work was tarnished by this assumption (Martins, 1974: 276). When they talked about “society”, they had in mind either a particular national object (“French society”) or a more general concept of a society that was necessarily bounded. In both cases, they took for granted a category imposed by political power. They thereby endorsed the view of nation-states that “humanity is naturally divided into a limited number of nations, which organize themselves internally as nation-states and externally set boundaries to distinguish themselves from other nation-states” (Beck & Sznaider, 2010: 383).
The problem with methodological nationalism is not only that it transforms social sciences into a discourse that legitimizes particular political actors (i.e.nation-states). It also biases our descriptions and understanding of social phenomena. For on the one hand, “society has never been the isolated, the ‘internally developing’ system which has normally been implied in social theory” (Giddens, 1973: 265). And one the other hand, society may not even be a system, closed or open, at all. Some sociologists insisted that “we can never find a single bounded society in geographical or social space” and urged that we study societies as “multiple overlapping and intersecting sociospatial networks of power”. If we change the paradigm, we view states as only one of the major types of power networks (Mann, 1986: 1 subseq.).
Since the 1970s, these critiques of the methodologically nationalist assumptions have spread to all the social sciences, except political theory and philosophy. In political theory and philosophy, the three main versions of methodological nationalism are largely unquestioned and indeed often fully endorsed. Political theory and philosophy are: (1) state-centered, often arguing that the state is the natural locus for the realization of justice, democracy, freedom, rights etc.; (2) “groupist” (Brubaker, 2002), assuming that people living within the borders are homogeneous groups, even endowed with collective intentions, projects, cultures, values etc.; and (3) “methodologically territorialist” (Sholte, 2002) analyzing the spatial dimensions of human actions and phenomena according to the divisions imposed by political power.
Carens’s proposal according to which “justice requires that democratic states grant citizenship at birth to the descendants of settled immigrants” is clearly based on methodological nationalist premises. Not only does it assume that what “justice” requires is that the states and their attributes (citizenship) be at the center of the stage, but also that “belonging to the political community” should be assigned from birth.
The argument from social connections
Carens argues that citizenship should be granted on the basis of de facto “belonging” to the “political community”. Such a proposal has been defended, among others, by Hammar (1990) and more recently, by Shachar (2009) who argued in favor of a jus nexi. The idea is that those who de facto reside in a country should be recognized as members of the “political community” and granted citizenship.
The argument’s aim is to extend people’s rights. But methodological nationalism makes the argument vulnerable. Its strategy is to infer from a descriptive premise (de facto social connections) a normative conclusion reframed in national terms (“political community”, “citizenship”).
Both the premise and the inference are questionable. They are all the more questionable in the case of newborns. Carens suggests that when born, a baby “enters a social world” and that “she is connected to people”, while recognizing that this is “most intimately to parents and siblings, and through them to friends and more distant family members” (p. 23). It is however difficult to affirm that newborns have a social life in the sense the adults have one. Newborns cannot make associations or be in conflict with other people; they don’t have friends, cannot help anyone in difficult situations or invite them to dinner. Their “social membership” is at most a form of “belonging” not “membership”. Is it not strange to think that newborns have a social life? By contrast, children have a rich social life and their social connections are important in number and in types. Yet, it is newborns, not children, who are assumed to be members of a political community.
This inference from “social membership” to “political community” appears to be even more bizarre in the case of newborns. Not because newborns cannot vote or pay taxes. Rather, because it is difficult to see how their “social world”, populated with as many parents and siblings as you wish, can be equated with the “political community”. Likewise, although young children have a rich social life, sometimes richer than ours, it is difficult to see how their “social connections” can be translated into “political membership”. Is your child becoming a member of some community because she innocently plays Lego with mine every day? Of course, our children are part of the “Lego community”, but only in a metaphorical sense. We would be surprised if one day, the Lego Group sends us a certificate of membership and some of us would squarely refuse to “belong” to Lego. Yet, we find normal to translate concrete social life into political membership and none of us reject the idea that our babies belong by birth to some nation-state.
In a sense, nation-states have acted just like the Lego Group, as the history of the nation-state testifies. For instance, Mann (1993) showed how in the nation-state building process, states succeeded in “caging” social activities within themselves; Torpey (2000) described how states grasped or “embraced” the population which happened to live on a territory, by censuses, birth registration and an increasing bureaucracy. In his book, The Invention of the Passport, Torpey analyzed the process by which the political power came to monopolize the legitimate means of movement: birth certificates, identity cards and passports became the mobile version of the administrative files through which the states kept their power over people.
One might think that we now live in a world of nation-states and that even if we were to assume that, by some kind of magic, our children’s birth and social connections would transform themselves into political membership, it would still be in children’s best interest to maintain this assumption. Nation-states give children protection, rights and opportunities. Citizenship is what gives our children rights to better schools and playgrounds and protect them from being expelled when they play Lego together. But is citizenship the solution, rather than the problem? If we are concerned by the children’s best interests, can we accept that, by birth, some children have rights that others do not? Is the children’s best interest to be assigned, at birth, to one national category?
Citizenship and sedentarism
Carens argues that descendants of settled immigrants should be granted citizenship at birth automatically. In a world as it is, where rights are granted by nation-states, this principle appears to be a clear extension of rights both in scope (immigrants’ children are given citizenship rights) and in procedure (citizenship is granted without application). Our methodological nationalism prevents us from seeing the blind spot in this principle. I would argue that conceiving of this principle as limited to “settled” immigrants and as an “automatic” grant of citizenship raises some problems.
Methodological nationalism views people as settled by default. Elsewhere, I have called “sedentarism” the assumption that it is normal or preferable to stay rather than to go. Sedentarism is a bias which implicitly dominates the social sciences (they most often explain, analyze and classify mobility, not sedentary conduct) but is overtly defended in political philosophy (dominated by “normative” accounts). In political philosophy, spatial mobility is not an object of conceptual analysis. While sometimes philosophers mention that (internal) free movement is a primary good (Rawls, 1993), a basic right (Shue, 1980) or a central human capability (Nussbaum, 2000; Robeyns, 2003; Kronlid, 2008), almost no book in political theory is dedicated to analyzing what freedom of movement is and what is it good for. International mobility is always distinguished from internal mobility and analyzed as a kind of huge jump from one national container to another, a short and exceptional event in an otherwise sedentary life.
However, if we did not assume that social connections project us, by magic, into a community, we might pay more attention to how social connections are actually created. Spatial movement is a necessary condition for meeting people, and meeting people several times (that is, repeated movement) is a necessary condition for establishing durable social connections. The ability to move depends on wealth, infrastructures, health condition, gender and political power. The most privileged groups spend their lives moving back and forth, coming and going, on longer and shorter distances, for longer and shorter laps of time. Movement is intrinsic to our lives and to economy. To take only one example, in 2012 tourism accounted for 9% of the global GDP; the number of international tourists was more than one billion, whereas internal tourists accounted for 5-6 billions.
So, who are the “settled” immigrants whose children should be eligible for citizenship rights? In the 1793 French Constitutional Act, one year of residence was enough for a foreigner to acquire citizenship (cf. art. 4) and in many states nowadays five years of residence is the legal requirement (but as citizenship cannot be claimed as a right, many long term residents die without acquiring citizenship). How many years are enough to be qualified as “settled”? Should declarative statements count? What if we visit another country and change our minds? It seems to me that the only proof of being “settled” for sure is death. It would be, of course, unjust to grant citizenship only to children of dead immigrants.
What is the solution? Should people be “settled” and give their allegiance to a single country to have their human rights recognized? Or should countries automatically protect the human rights tout court without calling them citizenship?
To conclude, I would like to come back to my initial example of racial segregation. If we are happy that racial segregation came to an end, we will have difficulty in accepting that Homer Plessy should have been the only person to obtain the right to travel in a whites-only car. Homer Plessy’s appearance was “white” and this is why he was chosen by the activists to defy the segregation law. They didn’t succeed in that, but their intention was not to obtain rights only for those whose appearance was “white”. Analogously, immigrants who became indistinguishable from natives by their social connections should not claim rights only for themselves.
The example of Homer Plessy is useful in showing not only that anyone is entitled to travel in any car, but also that traveling is important for all of us. It is a pity that political philosophers do not use their conceptual abilities to understand mobility and what it is good for. To understand freedom of movement and the consequences of its denial, scholars are obliged to refer to works in economics (e.g. Lant Prichett, Michael Clemens, Bryan Caplan among many others), in social sciences (e.g. John Torpey, Oliver Bakewell, Antoine Pecoud among others) or even in the grey literature (see e.g. UNDP Overcoming Barriers). When states open their borders regionally and international organizations envisage putting migration on the development agenda, political theorists mark themselves out by an obsession with states’ “rights”.
Beck, Ulrich and Sznaider, Nathan. 2010. “Unpacking cosmopolitanism for the social sciences: a research agenda” British Journal of Sociology, 61: 381-403
Speranta Dumitru is an Associate Professor of Political Science at the University Paris Descartes and holds the Chair “Social Ethics” at CERLIS, CNRS.”
Joe Carens’s The Ethics of Immigration is just the book that the growing field of the political theory of migration needed. Rich in argumentation, wide in its coverage, fluently and reflectively written, it will act as a locus of, and focus for, discussion and debate.
It is also a book with a distinctive methodological structure. In the first part, Carens presupposes ‘(1) the contemporary international order which divides the world into independent states with vast differences of freedom, security, and economic opportunity among them and (2) the conventional moral view on immigration, i.e., that despite these vast differences between states, each state is morally entitled to exercise considerable discretionary control over the admission of immigrants’ (p.10) and seeks to reconstruct how liberal democratic states should, in acting on their own deepest commitments, treat immigrants. In the second part, Carens focuses on admission and in the final two chapters drops this presumption of state control and re-articulates his well-known argument for open borders. In this commentary, I will focus on the first part of the book.
The arguments of the first part build to Carens’s theory of social membership (chapter 8) on which I’ll focus but we should preface this discussion by noting how they build to this theory. Carens is committed to a contextualist form of political theory that works from the ground up. The discussions of birthright citizenship, permanent residents, temporary worker, irregular migrants can be seen as the cases from which Carens is attempting to reconstruct a norm of social membership that will make coherent sense of our democratic practices of social and political membership. The norm that Carens reconstructs is ‘that living within the territorial boundaries of a state makes one a member of society, that this social membership gives rise to moral claims in relation to political community, and that these claims deepen over time.’ (p.158)
One case that Carens is confronted with is the hermit or recluse who is resistant to making social connections. His practical response is to note that this is, at most, a very rare occurrence and therefore not a good basis for legal reasoning. His theoretical response is to draw an analogy with the case of a birthright citizen who is a recluse and argue that one cannot deny citizenship to the immigrant recluse without also denying it to the birthright citizen recluse. This is essentially the same response. Birthright citizenship is justifiable because it will typically be the case that children born to resident citizens form their lives through a rich web of social connections tied to the territorial society of the state. Carens’s argument is dependent on what is typically true of human beings. It is not that social connections are a necessary condition of entitlement to citizenship but that the well-founded expectation that human beings will typically form such social connections in their state of residence is a necessary condition for the justifiability of a general rule for granting citizenship in terms of the idea of social membership. To counter this argument, what is needed is either to show that the expectation is not well-founded or to show that the state has a justified basis for exemptions to the rule in the case of residents who do not form such connections.
Let me turn then to the idea of thresholds such that once a person has lived in a state for a given length of time, we can presume that they will typically have become a full social member and that entitlement to citizenship is the acknowledgment of this fact. My concern here is not with imagined hermits but rather with the presumption that the time and residence proxies function in the same way for different types of migrant. Consider the case of a short-term worker or student whose stay does not meet the threshold that Carens proposes for access to citizenship but whose work contract is then renewed or student status extended (e.g., for postgraduate work), even if following a brief period of absence from the state, such that the period of (more or less continuous) residence passes the threshold for the inclusion of habitual residents. Should we count the period of residence as starting again with the contract renewal, or as continuous across contracts? This question arises because, in contrast to the habitually resident non-citizen, the short-term worker is admitted as someone engaged on a project with a specified end and, then, re-admitted on another project with a specified end. Even if one accepts Carens’s theory of social membership, it does make a difference in that when the state admits ‘voluntary’ migrants for an open-ended period, the relationship between state and migrant is conceived as potentially permanent, whereas in the case of the short-term worker or student, each of their serial stays has a contractually agreed and specified purpose with an endpoint. The temporary migrant lives in society with the presumption that they will be required to leave; the habitual migrant with (or acquiring) permanent residency status lives in society with the presumption that they will not be required to leave. These distinct conditions of social life will almost inevitably affect the depth and extent of the ties to society that these differently situated migrants enjoy. (Consider by analogy the difference between ‘home’ friendships and ‘holiday’ friendships.) In this respect, I think that the stress of the social membership argument on a standard period of time has a tendency to suppress the point that time is being used as a generic proxy for typically expected social ties. The problem is that the adoption of a standard period of time as a generic proxy for typically expected social ties across different classes of migrant relies on the presupposition that the migrant’s relation to the society in which they reside is independent of the temporal and normative horizon in terms of which migrant’s experience, and reflect, on their presence in society. This is an empirical issue but I am sceptical as to the truth of this presupposition.
The preceding remarks operate internal to the frame of Carens’s theory and its presumption that law should be constrained to acknowledge the fact of social membership. But should it? One way of framing the issue is to consider the case of irregular migrants whom it might be charged acquire social membership but acquire it fraudulently on the basis of a residence to which they are not entitled. This is, I think, the point behind Michael Blake’s objection to Carens’s theory. I have sympathy for Blake’s objection, namely, that sometimes the normative force of the fact of social membership can be over-ridden by other legal and moral considerations but I think that the contrary claim holds as well, namely, that other moral and legal considerations can be over-ridden by the fact of social membership in virtue of the social connections that can typically be expected of such membership. To focus this point, consider whether there should be a statute of limitations with respect to irregular migrants who could be returned to a home state where they would not be subject to oppression or injustice, should there be a statute of limitations beyond which the right of the state to deport an irregular migrant ceases. We should note that it is widely believed that some rights are capable of ‘fading’ in their moral importance by virtue of the passage of time and by the sheer persistence of what was originally wrongful infringement (Waldron 1992). The pertinent question is, consequently, whether the right to determine whether the long-term irregular migrant is entitled to remain in the state is one such right. There are two reasons to suggest that it is, and so should be subject to a statute of limitations. The first is that the harm to the individual of being deported after long-term residence and having acquired the attendant social attachments is significantly greater than any harm done to society in allowing this individual to remain. This argument is, however, open to the objection that, although this may be true for each case taken singly, it leaves aside the general harm of irregular migration to the state as a legal and political order. The more important reason is the second, namely that precisely because we can typically expect that the irregular migrant will have forged social connections, the legitimate expectations of other ‘regular’ members of society whose life-plans centrally involve the presence of the long-term irregular migrant will also be frustrated and harmed by the act of deporting this migrant. This is most clearly the case when an irregular migrant has a ‘regular’ family. This does not entail that the long-term irregular migrant might not be subject to penalty, for example, an extension of the period of regular residence prior to any access to citizenship but it does provide reasons for restricting the deportation of long-term irregular migrants and allowing them to regularize their status.
Consideration of these three issues suggests that the principle of social membership is defensible, that social membership is immensely important but that the conditions of social membership as demarcated by time and residence can vary across types of immigrants – and that while it can, in principle, be over-ridden by considerations of morality and law, it can also be sufficiently important to constrain or over-ride such considerations.
David Owen is Professor of Social and Political Philosophy at the University of Southampton.
In contrast to Chris and Esther, I don’t have any fancy photo equipment and no skills; I take pictures with my mobile device and the vast majority of them are crap. But here’s one I got attached to. I took it when I visited Laura Plantation in Lousiana (which was also the scene of this rather hilarious story). It’s very good that they preserved these slave cabins; if you enter them and you are told that two families lived in each of those huts, it makes it in a very accessible way possible to image/understand what their living conditions have been.
The plantation guide told us that when slavery was abolished, the owner started to pay the slaves, but at low wages, while making them pay a lot (in relative terms) for ‘board and lodging’. My understanding of this is that since the slaves had no savings or other means, they couldn’t go anywhere, and were in a certain sense forced to keep working in socio-economic circumstances that still had much in common with slavery.
Highly recommended to visit.
Apologies for vanishing and temporarily interrupting the capability project! I’m resuming my series of posts on the capability approach, which I expect to continue till mid-July (and afterwards we’ll see where we are). I am now turning to the capability approach as a theory of justice (social or distributive justice). This may require more than one post, and in this first one I want to discuss two meta-theoretical problems with the capability approach to justice.
Problem #1: a single module, rather than an engine
The capability approach to justice defends functionings and/or capabilities as the metric of justice. That normative commitment could be combined with several different choices of the distributive rule. Two of the leading theorists defend sufficientarian accounts (Martha Nussbaum and Elizabeth Anderson), and the capability approach is therefore often interpreted as being a sufficientarian theory: but that need not be the case. Sen, as far as I can see, does not commit to one particular distributive rule, since he believes the quest for a full theory of justice is mistaken, and we should instead focus on injustices, and judge situations case by case, implying that sometimes equality is the right metric, sometimes sufficiency [I am not endorsing Sen’s views – in fact, I have argued here before that I think he is mistaken]. Thus, the capability approach to justice is only committed to the specification of a metric, not to a distributive rule.
Richard Arneson (2010, p. 103) rightly remarked that this makes it hard to assess the capability approach to justice, since we are asked to judge one module of a theory of justice, without knowing what the other modules will be. However, as Arneson rightly points out
in general one assesses a suggested module of a moral theory as one might assess a proposed part that is supposed to fulfill some function in an engine. One can see if the part works by seeing if the engine works better with that part inserted or with some substitute inserted instead or without anything of the sort deployed. You might be abel to tell by inspecting the part in isolation that it could not play its assigned role, but the definite test for success will be how the part functions in its place, alongside the rest of the engine. And so it would seem to be for proposed modules of moral theories. The unit of assessment is really a complete moral theory.”
So this is the first challenge/problem when studying/assessing the capability approach to justice. In my contribution in the capability approach to the Stanford Encyclopedia of Philosophy, I listed what I believe that is needed for a full capability theory of justice: (1) its grounding/justification; (2) whether functionings, capabilities, or a mixture is the appropriate metric; (3) the selection and aggregation of relevant dimensions; (4) a comparison with other metrics of justice; (5) a justified choice of a distributive rule; (6) the role (if any) for personal responsibility [this is related to the question of the distributive rule].
Did I miss anything?
Problem #2: the status of the theory
Another real challenge for the capability approach to justice has to do with its meta-theoretical status. Anyone who has been following the recent debate on ideal vs. non ideal theories of justice knows how confusing (and confused?) that debate is, but here follows the best I can make of it. In order to properly understand, let alone assess, a theory, we need to know what the theory aims to deliver. In theories of justice, this is seldomly spelled out, but it matters, in my view, quite strongly. The first question is whether the theory aims to merely be truth-seeking, or also ‘practical’, in the philosophical/technical sense of that word, namely that it gives us (as persons or in the design of our institutions) guidance on what to do. If the theory tries to be merely truth-seeking, it does not need to take into account that certain things are non-observable (e.g. whether one’s preferences are ‘authentic’), or take feasibility constraints into account. These theories can use assumptions that are not merely abstractions but also idealizations. If a theory tries to be practical (in the above-mentioned sense), there are more constraints on the theoretical tools it can employ. If it relies on idealizations, unobservable entities, or ignores those feasibility constraints that it should respect even in a maximally just society (such as: babies are born completely dependent and die if they are not properly cared for; people need oxygen to live; crops don’t grow if they don’t get water), then the theory becomes either biased or useless for action-guiding. Much of the work done in applied philosophy belongs to the action-guiding group, and most of the influential theories of distributive justice belong to merely truth-seeking group. And we know way too little, in my view, of how to move from a plausible set of principles in the merely truth-seeking group to recommendations on action-guidence (if that move can be made at all – a huge question I am not addressing now).
Assessing the capability approach to justice is not only tricky because of the issues related to it being only one module in an entire engine, but also because, in contrast to many better-worked-out theories it is not always clear what kind of theory it aspires to be. Hence it may need to be assessed again different meta-theoretical backgrounds. It could be a poor/strong theory in one of those meta-theoretical categories, but not in others.
My hunch is that, because of its strong commitment to acknowledging human heterogeneity/ human diversity, the strength and potential of the capability approach as a non-idealised theory of justice that aims to be action-guiding. There aren’t significantly strong idealizations in the capability approach, such as that representative agents are heads of families and their interests coincide with the interests of all family members, that people have no caring needs/obligations, or that they have no disabilities/long-term illnesses, or that they are all equally able to convert ‘all purpose means’ into valuable goods. But this ‘realistic human anthropology’ comes at a price, and that price is messiness. The capability approach to justice does not have the theoretical elegance that many other theories of justice have, and elegance and parsimony are seen by many (analytical) philosophers as desirable theoretical characteristics.
The upshot is that we should be very careful to compare apples with pears, and that this is a real risk in the literature on the capability approach to justice.
There is much more to be said, but I think I’ve said more than enough to start with.
The right to move within states is a basic human right, acknowledged by multiple international human rights documents including the Universal Declaration of Human Rights. For Joseph Carens, what is puzzling, and ultimately unjustified, is that the right to move internationally is not similarly recognized as a basic human right – in his view, it ought to be recognized as such. According to Carens, the right to move domestically (or internally – I use these terms interchangeably to mean movement within the borders of a state) and internationally protect the same interest: “the vital interest that is at stake here is…freedom itself. You have a vital interest in being free, and being free to move where you want is an important aspect of being free” (p. 249). Carens defends this view from attack by those who think that there are important distinctions between internal and international freedom of movement. In this brief comment, I outline the argument as Carens describes it, and then I join the ranks of those who nevertheless want to justify distinguishing between the internal and international rights to movement. I suggest that Carens gives short shrift to two important ways in which the distinction can and, in my view, should be justified, and then argue that we ought to understand the right to move internally as a membership-specific human right, according to a slightly modified account of what such a right entails.
Carens proceeds to reject a range of attempts to defend restricting the basic human right to move to the domestic environment. I will consider two of these here: one attempt suggests that domestic movement is special because it protects individuals from discrimination and another suggests that domestic movement is (as I too shall suggest) a membership-specific human right.
As Carens reports, some scholars defend the right to domestic movement as a basic human right for its contribution to protecting individuals from discrimination by the state (p. 242). Carens agrees that freedom of movement may have an important protective role to play here: certainly in many cases where states aggressively restrain the right of individuals to move internally, as for example when Jews in Europe, or the Japanese in North America, were restricted to ghettos or internment camps in World War 2, it is clear that discrimination is at work. Yet, Carens ultimately rejects the anti-discrimination argument as the foundation for protecting the right to move domestically as a human right. Carens responds to this claim in two ways. First, he points to the historical record, which suggests that the reasons offered to protect internal movement were not rooted in a concern for discrimination (p. 243). Second, the right to movement does so much more than protect individuals from discrimination by the state: “it is far too broad a right for that to be its primary purpose” (p. 243).
I think Carens is right to reject the claim that the right to move is to be justified exclusively for the role it plays in protecting individuals from discrimination. Yet, I think also think that what Carens characterizes as an anti-discrimination argument might be better reformulated as a democratic equality argument, a key component of which is protection from discrimination. Democratic states are responsible for protecting the equality of all their citizens, and doing so requires that they protect a range of rights for all citizens on an equal basis. All of these rights together, including the right to move internally, serve to protect equality in a democratic state; to use Michael Blake’s language, the right to move is one of a complex of rights that protects individuals in democratic states. None of these rights is absolute – not even those that are most conventionally thought to be the strongest, such as freedom of speech and freedom of religion. At the very least, they are all limited by the harm principle; more than that, however, in democratic states, the rights can sometimes be additionally curtailed where there are compelling reasons to do so. To the extent that any of these rights is restricted for some more than others, in particular without adequate justification, democratic equality is not protected. On this view, then, the right to move domestically is defended for its essential contribution to democratic equality; where it is unjustifiably restricted, then, we can say that those who have access to unequal movement are treated in a discriminatory way.
Accounting for the right to movement in terms of its connection to protecting democratic equality has at least two attractive features. First, as the anti-discrimination argument suggests, it allows us to diagnose discrimination via an assessment of access to the freedom of movement domestically. For example, consider the history of zoning laws in the United States. Justified in apparently neutral language, municipalities sometimes deploy zoning laws to restrict in-migration in the name of limiting population density. One obvious effect is the driving up of property prices in the zoned municipality. Much research, however, indicates that these laws are in fact adopted in environments where the goal is to prevent the in-migration is of disfavoured minorities, who may not have the resources to pay the inflated property prices. In this case, while the policy does not appear to target the right to move of disfavoured minorities directly, it does have a significant effect on their ability to move in particular, and this suggests that there is an unjust inequality at work. It is a focus on the equal right to move, not simply the right to move as a component of freedom, which enables to diagnose the discriminatory basis of zoning regulations.
A second attractive feature of focusing on democratic equality as a way to understand the importance of protecting the right to move is that it makes sense of the fact that there are cases where movement restrictions, and indeed movement inequality, can be justified. As Robert Goodin has noted, one special feature about domestic states is that they can treat their citizens worse than they can treat outsiders along many dimensions, including with respect to movement, so long as adequate justification is offered in the appropriate democratic environment. A commitment to democratic equality highlights the importance of offering adequate reasons for the unequal distribution of movement among citizens. Citizens are entitled, in other words, to equal access to movement domestically, or they are entitled to a set of reasons for why their movement is restricted.
Of course, citizens do not have the equal ability to access the right to move. A range of factors impact whether an individual is free, or feels herself to be free, to move. At the most basic level, moving requires resources, and those without resources will be less able to move freely, whether they desire to visit or reside elsewhere. Some individuals feel themselves prevented from moving by the need to provide for their families. Yet, other, “external” factors, many of which are shaped by deliberate government intervention, also affect whether citizens feel free to move, in particular for purposes of taking up residence elsewhere. Gay Americans may feel restricted in where they can live because their marriages are recognized only in some states. Many American states have significant restrictions on where sex-offenders may live and reside. Eminent domain laws in many states can compel citizens to leave their houses, in many reported cases without adequate compensation for what they are losing. Subsidized child care options can make some locations more desirable locations in which to reside. Concerted attempts to locate business, or some other specialized industry, in one or two locations can encourage individuals with particular expertise to migrate. What we learn from these cases is that governments often implement policies that are intended to influence whether and where individuals chose to migrate. In each of these cases, citizens are owed justifications for political decisions that often intentionally, and sometimes unintentionally, affect their ability to migrate internally.
How do we know if the ways in which democratically made public policy, which affects internal migration, is consistent with a commitment to democratic equality? In part, the answer lies simply in defining the nature of equality to which democracy is typically committed: in terms of equal basic liberties or inclusion in political decision-making procedures, for example. Another part of the answer lies, however, in the more particular way in which a given political community defines equality. In some cases, then, whether democratic equality is violated is clear: if a state refuses to create procedures by which new internal migrants can promptly vote in elections (whether federal or sub-state), it is unjustly penalizing those who migrate internally near election time. In other cases, however, whether democratic equality is violated is less clear: if a sub-state unit decides to subsidize one form of medical care but not another, an individual in need of the medical care that is not provided elsewhere may feel dissuaded from migrating. As an example of the latter, consider that the Canadian province of Quebec currently subsidizes some forms of assisted reproductive technology, while other Canadian provinces do not. It is not clear that democratic equality is violated if a resident of Quebec, who is in need of these services, decides to remain in Quebec to take advantage of them. The point is that states have considerable leeway to define what equality in general, and equality of movement, entails. This observation is drawn from the distinction David Miller offers between social and global justice where, he argues, a community’s own account of what social justice demands will serve to delineate the package of goods (or rights) that are to be distributed equally to all members.
As a consequence, whether citizens believe their right to move is constrained fairly or unjustly will depend in large part on the way in which its community conceptualizes democratic equality, as well as the ways in which reasons for movement inequality are justified. The first step to understanding whether movement is unjustly constrained is comparative: individuals will at first glance assess their own abilities to migrate internally in relation to others’ abilities to migrate internally. The second step is understanding whether the reasons given to explain unequal ability to migrate internally are consistent with the community’s own understanding of democratic equality.
The right to move can therefore be thought of as a membership-specific human right, i.e., as one that is “derived…from one’s social location”, and which draws “attention…to the fact that certain human rights depend upon a person’s connection to a particular community” (p. 97). Where a right is a membership-specific human right, “the state is morally obliged to grant to citizens and perhaps to residents as well, but not to others within its jurisdiction” (p. 242). Why, then, doesn’t Carens believe that freedom of movement is properly described as a membership-specific human right? One reason he offers is that the Universal Declaration of Human Rights notes that everyone and not simply citizens have the right to move freely on a given territory –“there is nothing membership-specific about that” (p. 241). But the more important reason seems to be that, after all, the freedom to move is essential to accessing many opportunities in a state, not all of which are connected to issues of membership: “it contributes to personal, civil, economic and social dimensions of freedom” (p. 242).
Yet, this doesn’t seem to be enough to make the case. As I noted above, states regularly make decisions, which they must justify to members and perhaps also to residents, about the extent to which policies will intrude on or constrain their internal migration opportunities. These decisions inevitably effect whether everyone (whether citizen, temporary resident, or tourist) within the boundaries of a state can move in pursuit of a wide range of opportunities, but it seems sufficient to conclude that movement is a membership-specific human right to note that members especially are entitled to justifications for decisions that affect their movement. A membership-specific human right is not only one that is restricted to members as Carens suggests, in other words, the way in which it is instantiated must be justified especially to members as well. (There is more to say of course about whether justification is owed to non-citizens – tourists, for example, and temporary labour migrants, whose movements are often restricted internally – and if so about format this justification ought to take.)
The argument I’ve offered in response to Carens’ account of the foundations for the right to move internally and internationally is not knock-down certainly; indeed it doesn’t even deny that the right to move itself might well be justified first and foremost with respect to the importance of movement in securing freedom more generally. What it does do, I hope, is encourage us to think more seriously about the ways in which domestic states impact, and in particular restrict, movement in significant ways, ways that demand justifications that are consistent with a state’s understanding of how to instantiate democratic equality. In assuming that movement internally is basically free, and thus that what demands explanation is the presence of movement-restricting borders, Carens pays inadequate attention to the ways in which domestic states restrict and encourage movement and to the justifications that can and cannot be offered for these restrictions and encouragements. As I have tried to suggest, these restrictions can only be justified by reference to a state’s own understanding of democratic equality, an understanding that demands justifications be offered to members especially. Internal freedom of movement is therefore best understood as a membership-specific human right.
Patti Tamara Lenard teaches applied ethics at the Graduate School of Public and International Affairs, University of Ottawa, and is the author of Trust, Democracy and Multicultural Challenges (Penn State Press, 2012).
In The Reactionary Mind, I briefly argued that much of the energy behind the Christian Right came not from its opposition to abortion or school prayer but its defense of segregation. Based on early research by historians Joseph Crespino and Matthew Lassiter, I wrote:
Evangelical Christians were ideal recruits to the [conservative] cause, deftly playing the victim card as a way of rejuvenating the power of whites. “It’s time for God’s people to come out of the closet,” declared a Texas televangelist in 1980.
But it wasn’t religion that made evangelicals queer; it was religion combined with racism. One of the main catalysts of the Christian right was the defense of Southern private schools that were created in response to desegregation. By 1970, 400,000 white children were attending these “segregation academies.” States like Mississippi gave students tuition grants, and until the Nixon administration overturned the practice, the IRS gave donors to these schools tax exemptions.
According to New Right and direct-mail pioneer Richard Viguerie, the attack on these public subsidies by civil rights activists and the courts “was the spark that ignited the religious right’s involvement in real politics.” Though the rise of segregation academies “was often timed exactly with the desegregation of formerly all-white public schools,” writes one historian, their advocates claimed to be defending religious minorities rather than white supremacy (initially nonsectarian, most of the schools became evangelical over time).
Their cause was freedom, not inequality—not the freedom to associate with whites, as the previous generation of massive resisters had claimed, but the freedom to practice their own embattled religion. It was a shrewd transposition. In one fell swoop, the heirs of slaveholders became the descendants of persecuted Baptists, and Jim Crow a heresy the First Amendment was meant to protect.
Politico has a great piece up this week pursuing this argument in much greater depth. Dartmouth historian Randall Balmer has immersed himself in the archives of the Moral Majority and other organizations and activists of the Christian Right, and found some fascinating details. Though abortion would come to play a role later on, it was the school segregation issue that truly galvanized the leaders and cadres of the Christian Right.
Both before and for several years after Roe, evangelicals were overwhelmingly indifferent to the subject, which they considered a “Catholic issue.” In 1968, for instance, a symposium sponsored by the Christian Medical Society and Christianity Today, the flagship magazine of evangelicalism, refused to characterize abortion as sinful, citing “individual health, family welfare, and social responsibility” as justifications for ending a pregnancy. In 1971, delegates to the Southern Baptist Convention in St. Louis, Missouri, passed a resolution encouraging “Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” The convention, hardly a redoubt of liberal values, reaffirmed that position in 1974, one year after Roe, and again in 1976.
When the Roe decision was handed down, W. A. Criswell, the Southern Baptist Convention’s former president and pastor of First Baptist Church in Dallas, Texas—also one of the most famous fundamentalists of the 20th century—was pleased: “I have always felt that it was only after a child was born and had a life separate from its mother that it became an individual person,” he said, “and it has always, therefore, seemed to me that what is best for the mother and for the future should be allowed.”
Although a few evangelical voices, including Christianity Today magazine, mildly criticized the ruling, the overwhelming response was silence, even approval. Baptists, in particular, applauded the decision as an appropriate articulation of the division between church and state, between personal morality and state regulation of individual behavior. “Religious liberty, human equality and justice are advanced by the Supreme Court abortion decision,” wrote W. Barry Garrett of Baptist Press.
So what then were the real origins of the religious right? It turns out that the movement can trace its political roots back to a court ruling, but not Roe v. Wade.
But this hypothetical “moral majority” needed a catalyst—a standard around which to rally. For nearly two decades, [Paul] Weyrich, by his own account, had been trying out different issues, hoping one might pique evangelical interest: pornography, prayer in schools, the proposed Equal Rights Amendment to the Constitution, even abortion. “I was trying to get these people interested in those issues and I utterly failed,” Weyrich recalled at a conference in 1990.
The Green v. Connally [declaring unconstitutional tax exemptions for private schools that practice racial discrimination] ruling provided a necessary first step: It captured the attention of evangelical leaders, especially as the IRS began sending questionnaires to church-related “segregation academies,” including Falwell’s own Lynchburg Christian School, inquiring about their racial policies. Falwell was furious. “In some states,” he famously complained, “It’s easier to open a massage parlor than a Christian school.”
Although Bob Jones Jr., the school’s [Bob Jones University] founder, argued that racial segregation was mandated by the Bible, Falwell and Weyrich quickly sought to shift the grounds of the debate, framing their opposition in terms of religious freedom rather than in defense of racial segregation.
For many evangelical leaders, who had been following the issue since Green v. Connally, Bob Jones University was the final straw. As Elmer L. Rumminger, longtime administrator at Bob Jones University, told me in an interview, the IRS actions against his school “alerted the Christian school community about what could happen with government interference” in the affairs of evangelical institutions. “That was really the major issue that got us all involved.”
When Reagan addressed a rally of 10,000 evangelicals at Reunion Arena in Dallas in August 1980, he excoriated the “unconstitutional regulatory agenda” directed by the IRS “against independent schools,” but he made no mention of abortion.
There is a wonderful passage in Julian Barnes’s Flaubert’s Parrot, in which Barnes expresses his anger at a dismissive critic of Flaubert:
All in all, it seems a magisterial negligence towards a writer who must, one way and another, have paid a lot of her gas bills. Quite simply, it makes me furious. Now do you understand why I hate critics?
I have had this passage in mind while I have been reading Joseph Carens’s book. I have written several articles about Carens’s view of immigration, and much of it has been critical. I take it that Barnes’s point is that we must express a certain sort of respect towards those we make the subject of our critical attentions, given how much we would be at sea without them. This seems exactly right, given how much I owe Carens; I would never have started thinking seriously about immigration had he not thought so seriously, and so well, about it first. One way or another, Carens has paid a lot of my gas bills, and done a lot more besides; he has been more gracious, both in print and in person, than he has ever needed to be. His book summarizes and extends his thinking about immigration, and I have come to respect that view and its creator enormously. It is not my view, but it is the very best the field has produced, and I hope I have not treated it with negligence.
In what follows, I am going to ignore much of the dispute I have had with Carens over the moral permissibility of exclusion, and focus on a topic found primarily within the first half of the book: the idea of social membership, and what rights can be adequately grounded in that idea. My arguments here are going to be similar to those made by Ryan Pevnick in his own post, although I hope I will make them in a slightly different way.
The idea of social membership does a great deal of work for Carens in the first part of his book. The simple facts of residence and time are understood as proxies for rich networks of social belonging – for, that is, particular relationships to places and persons, to particular forms of social institution and to particular polities. These social forms of membership are understood as sufficiently important that those who have them must be given what is needed to go on having them; those who are members in fact, that is, ought to be given what is needed to go on being members, including the legal right to remain within their places of residency. This idea grounds a great many specific guarantees Carens endorses, including birthright citizenship for children, residency rights for the undocumented (after a certain number of years), and a general hostility to long-term guest worker status. I share Carens’s belief that social membership is morally important; I am not convinced that it necessarily has the implications Carens describes. We might imagine that there are two distinct stories of how social membership ought to lead to legal rights to remain:
(1) Social membership is so important that it can never be rightfully taken away; after social membership is established firmly established, the circumstances under which it began become irrelevant. Social membership is a factual matter, not a legal one, and law must respect social membership – which, on this view, “does not depend upon official permission.” (150)
(2) Social membership is so important that it creates a presumption that it ought to be permanent; this presumption, however, can be overcome – when, for instance, there is a freely made agreement to forego the right to maintain that membership; or, when that social membership was wrongfully acquired, by means of a freely made decision to break a just law precluding access to the territory on which that social membership was developed. On this view, social membership is an important good, but one that can sometimes be rightly forfeited.
I think that some version of the latter view is right; Carens believes that the former is correct. I think we ought to note, first off, that the two views will agree on a great deal. Children, for example, are not capable of freely making decisions of the sort imagined here; Marguerite Grimmond is not rightly subject to deportation. I would also note, further, that the second view is importantly incomplete. It depends upon a story about what makes it rightful for a state to exclude outsiders, and when, and how. My purpose here is not to develop such an account, but to show that some such alternative to Carens’s view might exist, and might have its own attractions.
One such attraction, of course, is that we accept in many other areas of life some version of this view. Lives built on morally faulty foundations may sometimes be legitimately undermined, even at great cost to the one whose life is disrupted. Katherine Ann Power, for example, escaped from custody after a violent bank robbery, and lived as a fugitive for 23 years; she built a life during those 23 years that included a family, education, and a career – all the things that Carens identifies as the markers of a life that cannot be rightly taken from one who lives that life. Power was, of course, made to do just that, and was imprisoned after turning herself in. The point here is not that those who cross the border without right are criminals; as I will discuss, many of those who emigrate without right are fleeing objectionable forms of poverty or oppression, and we have good moral reasons to extend amnesty to those individuals. My only concern is that the passage of time is not enough, in isolation, to establish the right to remain. The fact that imprisonment would disrupt the life Power built during two decades as a fugitive does not make that imprisonment wrongful. Power’s imprisonment might look cruel, or unnecessary; the best version of that claim, though, would say that we have reason to extend mercy to her after seeing the peaceful life she has built – not that we are not within our rights to respond to her crime with imprisonment. Neither can we say that Power’s crime should be regarded as too far in the past to bother with. Contrary to Carens’s suggestion, the statute of limitations generally finds its justification in the fact that evidence, over time, tends to decay – not in the psychic needs of those who have broken the law. The general point, then, is that an individual can sometimes do something to make the life she has created justly subject to disruption. The fact that social membership is valuable to the member in question does not exhaust our moral evaluation; sometimes, that membership can be rightly sacrificed, if there is a good enough reason for us to demand that sacrifice.
We might imagine, then, that there are some circumstances under which a life built within a place is, as it were, justly subject to disruption; if, in particular, the individual makes a free decision to accept that disruption, or a decision to break a justified law precluding entry. Imagine two possible cases to fix our intuitions; both of these are based on real persons, although both are pseudonymous:
(1) Morgan, an artist from Vancouver, enters on a tourist visa, but stays in Portland, working construction jobs to pay for his artistic ambitions. He makes this choice because construction pays more in Portland than in Vancouver, and because the arts scene is better in Portland than in Vancouver. He stays in Portland for ten years.
(2) Molly, a student from Edmonton, enters on a student visa, which allows her to stay within the United States for the duration of her studies. Upon the end of the dissertation, she is obligated by the terms of her visa to exit the United States. She is now reaching the end of her program, after ten years spent as a graduate student; she has no desire to return to Canada.
I take it that Carens would extend to both Morgan and Molly the right to stay within the United States. I would not; I share with Carens the conviction that social membership is morally relevant – but I am convinced that there are cases in which the right to such membership can be rightly alienated. Molly, for instance, seems to have no particular right to stay in the United States, even if all her friends are here. The simple fact is that she agreed, against a fair and free backdrop, to forego the right to stay, and all the relationships she made here should be viewed in light of this agreement. To hold her agreement here as null and void seems oddly disrespectful of her as an agent; allowing people to give up rights in the name of other goods is often a way of demonstrating respect for persons. I can sign myself up for the army, or become a parent – both of which are big decisions, and both of which might lead to some regrets down the line. We allow people to make these decisions, though, and feel these regrets, because the alternative is to undermine freedom to make such decisions for ourselves. Here, Molly is a grownup, and faces no particular oppression or injustice in Canada; she can decide for herself if being educated in another country is worth the social costs of temporary residence.
Morgan seems to have even less of a right to stay. If he is coming from a reasonable set of circumstances in Canada, then he has freely chosen to build a form of life for himself on a set of foundations to which he has no particular right. I am not sure why liberal politics should feel any need to protect him from the consequences of that decision. To use Ronald Dworkin’s language, this seems like a case of option luck, not brute luck; he is making a bet that he will not be discovered and deported. If he is, I do not think he is wronged. He will doubtless experience pain from the deportation, but not all forms of pain constitute forms of injustice. It is, instead, as if he had chosen to create artwork on someone else’s walls. If the rightful owner of the property chooses to paint over those walls, Morgan will experience pain, and perhaps the owner ought to exercise mercy and allow Morgan to take his artwork home. But Morgan is not wronged by someone who refuses this mercy. Morgan has chosen, freely, to build on foundations he had no right to claim as his own, and all the consequences of that decision should fall rightly on him.
This may look rather abstract, and unfair; we are rightly concerned with Miguel Sanchez, and not with Morgan or Molly. That, though, is the point I am trying to make. We are concerned, in the case of Miguel, not simply with what he has built here, but what pushed him to leave his home in the first place. Many of the people who become irregular migrants, or work temporarily in another country, are deeply disadvantaged, and willingly accept what look like terrible terms of employment simply because their alternatives are so bad. (Carens spends some time, after all, going over the terrible circumstances under which temporary laborers tend to work; part of the reason this matters, I think, is that only the truly disadvantaged would seek out such terrible jobs.) If this is true, though – and I think it is – then we have occasion to extend our analysis, from the simple metric of time spent in a place, to something more complex, involving not simply the pain of deportation but the circumstances under which the decision was made to cross the border or to accept temporary employment. Miguel, for example, may be facing objectionable forms of poverty and violence in his home country, and a choice between crossing the border and remaining in poverty and oppression. I think the second version of social membership, as described above, can account for our reactions here; we are likely to think that Miguel’s choice is considerably less free than, for instance, Morgan’s choice, and that our reactions to it ought to be different as well. Morgan and Molly might be rightly regarded as making their choices against a backdrop of attractive and morally acceptable alternatives; they are rightly held accountable for their choices. To view Miguel in the same light seems an evasion of reality.
I believe, then, that Carens’s simple metric, on which time spent in a place is enough to establish a claim to residency, isn’t quite enough to tell us which people do in fact have a right to remain. There are many people who spend a lot of time in a place, but have no particular right to remain there. (If we wanted to look out beyond Morgan and Molly, we could consider the tax-avoiding phenomenon of “permanent tourism,” in which the wealthy live year-round in a low-tax country, while their money lives on and grows elsewhere. Why do we think these people have a right to remain, simply because they have made friends with the locals?) There are many other people whose claim is considerably stronger; the grounds for that, though, must be some idea both that their social membership is morally significant, and that the circumstances under which they acquired that membership do not negate their rights to that membership. This is messier, perhaps, and perhaps harder to instantiate in law – although I am not sure that it would be impossible; careful legal drafting might enable us to get closer to what morality here actually demands.
I do, in conclusion, disagree with Carens about the moral value of social membership. I agree with his overall conclusion about Miguel, although for reasons that are distinct from his own. I am more convinced, though, that once again Carens is deserving of our thanks – and my thanks in particular – for having started this conversation; I look forward to disagreeing with him for years to come.
Why the case for open borders is crucial to defending the rights of resident migrants
The common beliefs that I am referring to here include (1) that the ability to control immigration is an essential aspect of national self-determination; (2) that states are justified in prioritising the interests of their citizens over foreigners; and (3) that immigration can threaten some of the most important interests of citizens in terms of employment, culture, welfare, social trust, security and so forth. As Carens correctly argues in chapters 11-12, these beliefs, when properly assessed, do not provide a plausible justification for immigration restrictions. I have very little to say against Carens’s arguments in chapters 11-12. I am, in fact, in warm agreement with them and have sought to support and extend them in my own work. The problem with Carens’s book is not that Carens makes the wrong arguments but that he makes the right arguments in the wrong order.
In arguing for rights for irregular migrants, Carens is keen to remind his readers that he is still assuming that states have a broad right to control immigration. States are perfectly entitled to deport irregular migrants within their first years; it is just that they cannot deport long-settled irregular migrants or use information from hospitals, schools, courts etc. to track down recent arrivals. Carens’s opponents should be able to accept amnesties and firewalls since the arguments for them rest on “fundamental democratic principles” – respect for membership and human rights –that everyone already accepts.
This is the trick Carens seeks to play. By adopting the assumption that states have a broad right to control immigration, Carens lends the impression that he has generously adopted the starting point of his opponents. Since he adopts their starting point and argues from shared democratic principles, it seems hard to see why they should find his conclusions objectionable. In fact, however, Carens does not adopt the starting point of his opponents, for as already indicated, their starting point is not merely the assumption that states have a broad right to control immigration but a set of beliefs that lie behind that assumption.
Those that oppose greater rights for irregular migrants do not merely accept that states have the right to control immigration; they are passionate about it. They are passionate about it precisely because they believe in the importance of self-determination and the protection of citizens’ interests and contend that uncontrolled immigration is corrosive to both. Irregular migration is, by definition, uncontrolled migration. In so far as migrants enter without authorisation, states are failing to determine their own immigration policy and failing to protect their citizens from any harm that immigration imposes.
Had Carens really adopted the starting point of his opponents then, he would have, like them, sought to ensure that states have the means to actually control immigration. This would have made him reluctant to support amnesties, which incentivise irregular migration, and firewalls, which hamper immigration enforcement. Carens might still have been able to argue that the denial of amnesties and firewalls imposes morally troubling costs upon migrants (or perhaps not – see below), but he would have been forced to at least consider the possibility that immigration enforcement is something of such importance that it is worth the costs it entails. As it is, Carens is able to avoid even acknowledging that there is a trade off to make, not because he has shown that the right to control migration is any less important than his opponents claim, but rather because he has chosen to ignore their arguments for this right: until, that is, the crucial chapters 11-12.
Let us imagine that Anna’s home country Y can offer Anna the same treatment that she seeks from country X. In that case, Anna could access the treatment she needs upon her return to country Y. If she chooses not to access health care for fear of deportation and her health suffers as a result, it is far from clear that she can blame country X for her predicament. She never had any right to be in country X, we are here assuming. If she chooses to stay in the country without accessing healthcare for fear of deportation, she must take responsibility for her actions, much as you and I would if we refused to go to the hospital when we know we are sick.
Now suppose, conversely, that country Y lacks the treatment that Anna is seeking. If that is the case, Anna must receive treatment in country X or she will die. Even in this case, however, it seems false to say that country X violates Anna’s right to healthcare by promising to deport her if she seeks medical attention (assuming again that Anna never had a right to be in country X). For there will be many more cancer sufferers living back in country Y who, like Anna, are in need of treatment. Carens would not say that country X violates the human rights of these other cancer sufferers if it prevents them from entering country X. But there seems to be no morally relevant difference between Anna and these other cancer sufferers. It is true that Anna is currently within country X, while these other cancer sufferers are outside. But this mere difference in location cannot do the moral work. Neither Anna nor these other cancer sufferers is a long-settled resident of country X. Neither has any right to be in country X. If country X does not violate the human right to healthcare of these other cancer sufferers, then it does not violate Anna’s human right to healthcare when it promises to deport her if she seeks medical attention.
None of this is to deny that Carens can make a powerful case for rights for irregular migrants. But to make that powerful case he needs to show that the beliefs that underlie the assumption that states have a broad right to control immigration are misguided. He also needs to show that irregular migrants like Anna, as well as her compatriots back in Country Y, have legitimate reasons to live overseas and engage in important activities there, such as seeking medical care. Carens does all of these things in chapters 11-12. Again, the problem is not with his arguments but the order in which he makes them. The horse (chapters 11-12) should be in front of the cart (chapters 1-10), not behind it.
Carens does not seem to address this argument in the book, but he has addressed it elsewhere. In his article, “Citizenship and Civil Society: What Rights for Residents?”, Carens notes that “every plausible moral view sets some limits to consent” (p115). This is certainly true. Some basic rights are inalienable and migrants cannot be said to waive them by crossing international borders. The problem with this reply is that not all rights are inalienable. Most of the rights Carens sets out to defend, up to and including the right to citizenship, are non-basic rights that migrants could consent to waive and still lead fulfilling lives in relative safety and security.
To defend the rights of voluntary migrants requires reference to the sorts of arguments Carens makes in chapters 11-12. If people have a right to cross international borders, it would seem unreasonable to take their choice to cross international borders as a sign of consent to the terms of their admission. To any state that tells a voluntary migrant, “You consented to our terms of admission when you came here”, the migrant can reply, “When I came, here I was not consenting to your terms of admission, I was simply exercising my rights”.
The mistake that Carens makes is to regard the debate over immigration restrictions as separable from the debate over the rights that migrants should enjoy once they are resident within a country. In fact the two are closely linked. Arguments for the justifiability of immigration restrictions work as arguments against extending rights to irregular migrants. The claim that immigration restrictions are justified supports a consent argument for the permissibility of denying rights to voluntary migrants. To defend the rights of irregular and voluntary migrants then, Carens must confront arguments for the permissibility of immigration restrictions at the outset. As it is, Carens’s book is like an upside-down house, with the foundations of the house placed at the top. The bad news is that, if uncorrected, the house will collapse. The good news is that all the materials are there to build something strong and enduring. All we need do is turn the house aright.
Primal asubjective awareness precedes the historical development of the self and remains part of adult experience.
"Primal asubjective awareness precedes the historical development of the self and remains part of adult experience... this primal asubjectivity [is] what MerleauPonty (1945/1996) calls an "inborn complex" and a "prepersonal cleaving" to the world.
George Packer’s review of Glenn Greenwald’s book on the Snowden affair is largely based around an argument taken from Max Weber.
Edward Snowden is a child of the internet and at the same time an old American type—the solitary individual whose religion is conscience, and who follows his own regardless of where it takes him. … he type goes back to the English Protestant dissenters who settled the New World in the 17th century. Its most eloquent exemplar was Henry David Thoreau … In the famous hotel-room interview in Hong Kong that revealed his identity on video, Snowden said: “If living unfreely but comfortably is something you’re willing to accept—and I think many of us are, it’s the human nature—you can get up every day, you can go to work, you can collect your large pay cheque for relatively little work, against the public interest, and go to sleep at night after watching your shows.” It sounds like the quiet desperation Thoreau attributed to most of his fellow men. But if, like Snowden, you can’t rest until you’ve tested the courage of your conviction by taking radical action, then “you realise that you might be willing to accept any risk and it doesn’t matter what the outcome is.” …
Not caring about the outcome is what Max Weber, in “Politics as a Vocation,” called “the ethic of ultimate ends,” in contrast with “the ethic of responsibility.” There are many reasons to criticise this ethic and the uncompromising Thoreauvians who wear it as a badge of honour, but one has to admit that the issue of mass surveillance in America would not have come to public attention without a type like Snowden. … Snowden is a libertarian whose distrust of institutions and hostility to any intrusion on personal autonomy place him beyond the sphere in American politics where left and right are relevant categories. A temperament as much as a philosophy, libertarianism is often on the verge of rejecting politics itself, with its dissatisfying but necessary trade-offs; it tends toward absolutist positions, which grow best in the mental equivalent of a hermetic laboratory environment.
There are two problems with this analysis. The first is that it misstates the arguments of Max Weber. The second is that it grossly misrepresents the position of Edward Snowden.
First, Max Weber. Weber’s claims about the ethic of responsibility can be found in his classic essay (conveniently available online in PDF form), Politics as a Vocation. When Weber seeks to contrast the ethic of responsibility and the ethic of ultimate ends, he is not arguing against “absolutist positions.” For Weber, some kinds of absolutism are not only acceptable, but admirable. Instead, he is arguing against pacifists and others who do not want to embrace the ugly truths of politics – that politics is ultimately based on force, and that morally dubious actions can have politically beneficial outcomes. It’s worth quoting Weber’s arguments at length.We must be clear about the fact that all ethically oriented conduct may be guided by one of two fundamentally differing and irreconcilably opposed maxims: conduct can be oriented to an ‘ethic of ultimate ends’ or to an ‘ethic of responsibility.’ This is not to say that an ethic of ultimate ends is identical with irresponsibility, or that an ethic of responsibility is identical with unprincipled opportunism. Naturally nobody says that. However, there is an abysmal contrast between conduct that follows the maxim of an ethic of ultimate ends—that is, in religious terms, ‘The Christian does rightly and leaves the results with the Lord’—and conduct that follows the maxim of an ethic of responsibility, in which case one has to give an account of the foreseeable results of one’s action. You may demonstrate to a convinced syndicalist, believing in an ethic of ultimate ends, that his action will result in increasing the opportunities of reaction, in increasing the oppression of his class, and obstructing its ascent—and you will not make the slightest impression upon him. If an action of good intent leads to bad results, then, in the actor’s eyes, not he but the world, or the stupidity of other men, or God’s will who made them thus, is responsible for the evil. However a man who believes in an ethic of responsibility takes account of precisely the average deficiencies of people; as Fichte has correctly said, he does not even have the right to presuppose their goodness and perfection. He does not feel in a position to burden others with the results of his own actions so far as he was able to foresee them; he will say: these results are ascribed to my action. … No ethics in the world can dodge the fact that in numerous instances the attainment of ‘good’ ends is bound to the fact that one must be willing to pay the price of using morally dubious means or at least dangerous ones—and facing the possibility or even the probability of evil ramifications. From no ethics in the world can it be concluded when and to what extent the ethically good purpose ‘justifies’ the ethically dangerous means and ramifications.
Weber is arguing against a specific kind of unworldliness, which assumes that from good actions only good things come, and from evil actions only evil. His claim is that the world of politics is at best a morally ambiguous one, in which wicked means can produce good outcomes. Those who fail to recognize this should withdraw entirely (as a truly religious vocation demands) from worldiness. Those who recognize this and are not pure creatures of politics who shift their positions according to interest and convenience, are, for Weber, genuinely heroic individuals, who have truly embraced politics as a vocation.
So is Packer right in claiming that Snowden is irresponsible in the Weberian sense? Emphatically not. Indeed, Packer’s presentation of Snowden’s beliefs is actively misleading. In his review, Packer accuses Glenn Greenwald of a “pervasive absence of intellectual integrity” for claiming inter alia that Snowden had tried to protect his colleagues while failing to note a Reuters article “showing” that Snowden had borrowed logins from these colleagues. But Packer fails his own test for intellectual integrity. He presents quotes that seem to support his claims. However, not only does he fail to provide the necessary context for these statements, but he appears actively to elide bits of the quotes that undermine his thesis.
The interview with Snowden that Packer draws on is available here. And it really doesn’t say what he suggests it does. Below a more complete version of the answer provided by Snowden that Packer quotes (with some malformed HTML cruft cleaned up):[Question] Have you given thought to what it is that the U.S. government’s response to your conduct is, in terms of what they might say about you, how they might try to depict you, what they might try to do to you? [Snowden’s answer] Yeah, I could be, you know, rendered by the CIA. I could have people come after me or any of their third-party partners. … And that’s a fear I’ll live under for the rest of my life, however long that happens to be. You can’t come forward against the world’s most powerful intelligence agencies and be completely free from risk, because they’re such powerful adversaries, that no one can meaningfully oppose them. If they want to get you, they’ll get you, in time. But, at the same time, you have to make a determination about what it is that’s important to you. And if living, living unfreely but comfortably is something you’re willing to accept – and I think many of us are, it’s the human nature – you can get up every day, you can go to work, you can collect your large paycheck for relatively little work, against the public interest, and go to sleep at night after watching your shows. But, if you realise that that’s the world that you helped create, and it’s going to get worse with the next generation and the next generation, who extend the capabilities of this sort of architecture of oppression, you realise that you might be willing to accept any risk and it doesn’t matter what the outcome is so long as the public gets to make their own decisions about how that’s applied.
Two things jump out here. First – Packer’s claim that Snowden says that he doesn’t care about the outcome of his actions is a gross misrepresentation of what Snowden actually says. Snowden has been asked whether he is worried about what the US might do to him in retaliation. The “outcome” that he doesn’t care about is what happens to him personally as a result of his actions. This, very obviously, is not an abdication of Weberian responsibility. In fact, it is arguably just the opposite. Weber is quite clear that the ethic of political responsibility requires that the individual political actor subordinate his individual amour-propre in his devotion to his ultimate cause. This is what Snowden looks to me to be doing. Weber again:it is immensely moving when a mature man—no matter whether old or young in years—is aware of a responsibility for the consequences of his conduct and really feels such responsibility with heart and soul. He then acts by following an ethic of responsibility and somewhere he reaches the point where he says: ‘Here I stand; I can do no other.’ That is something genuinely human and moving. And every one of us who is not spiritually dead must realize the possibility of finding himself at some time in that position. In so far as this is true, an ethic of ultimate ends and an ethic of responsibility are not absolute contrasts but rather supplements) which only in unison constitute a genuine man—a man who can have the ‘calling for politics.’
Second – there is a quite extraordinary elision in Packer’s quotation of Snowden. He cuts off his quote at exactly the point where Snowden undermines his [Packer’s] argument. Snowden doesn’t say that “it doesn’t matter what the outcome is.” He says “it doesn’t matter what the outcome is so long as the public gets to make their own decisions about how that’s applied.” (my italics). Those are two very different statements. The one can be represented, with a bit of creative ingenuity, as a That’s-not-my-department-says-Wernher-von-Braun style abdication of moral responsiblity over what happens next. The other makes it clear that Snowden’s actions are aimed towards a specific and defensible political goal – to reveal what is going on to the American public, so that the public can decide what to do next. As Marcy Wheeler points out, Snowden is furthermore consistent over time that the US public might react differently than he would like.“For me, in terms of personal satisfaction, the mission’s already accomplished,” [Snowden] said. “I already won. As soon as the journalists were able to work, everything that I had been trying to do was validated. Because, remember, I didn’t want to change society. I wanted to give society a chance to determine if it should change itself.” … “All I wanted was for the public to be able to have a say in how they are governed,” he said. “That is a milestone we left a long time ago. Right now, all we are looking at are stretch goals.”
To be blunt, I find it hard to see how Packer’s truncation of this quote can be explained by anything other than the kind of lack of intellectual integrity that he accuses his opponents of. There’s lots about Snowden’s politics that Packer – or other people – might reasonably want to disagree with. But if you want to make an honest case that Snowden is a crazy-ass libertarian fanatic who profoundly distrusts all institutions, you’re not allowed to hide the bits where Snowden emphasizes that he believes in the democratic process. Yet that’s just what Packer does. Perhaps there is some defense of what Packer does here – but I’m not seeing what it might be.
Packer’s piece, and its problems, reflect a more general pathology among soi-disant national security liberals – an instinctive distaste for what they see as extremism in the pursuit of civil liberty, and an effort to find some intellectual justification for their revulsion (although in Packer’s defense, the article isn’t as inept as the appalling Sean Wilentz piece on ‘paranoid libertarianism’ that it namechecks and leans upon).
It’s also a missed opportunity. A real Weberian analysis of the politics of surveillance (rather than one which misemploys Weber’s arguments as a crutch for prejudice) could help illustrate the tragic aspects of surveillance politics. From a Weberian perspective, Snowden is very plausibly a hero, someone who has declared his “Hier stehe ich,” and is devoting himself to his cause, regardless of its consequences for him personally. Arguably Greenwald is too. While Packer is right that he’s a brawler, so too were the German party newspaper journalists of the early twentieth century that Weber singles out for particular admiration. But it’s plausible that Snowden’s and Greenwald’s political opponents, who adhere to a very different political philosophy, and are prepared to fight on its behalf can be described as Weberian heroes too. For Weber, what is admirable about a politician is not the righteousness of the politician’s cause, but the willingness of the politician to struggle on its behalf.Exactly what the cause, in the service of which the politician strives for power and uses power, looks like is a matter of faith. The politician may serve national, humanitarian, social, ethical, cultural, worldly, or religious ends. The politician may be sustained by a strong belief in ‘progress’—no matter in which sense—or he may coolly reject this kind of belief. He may claim to stand in the service of an ‘idea’ or, rejecting this in principle, he may want to serve external ends of everyday life. However, some kind of faith must always exist. Otherwise, it is absolutely true that the curse of the creature’s worthlessness overshadows even the externally strongest political successes.
This means that for Weber politics is fundamentally agonistic – a realm of struggle where different political actors, devoted to different and irreconcilable purposes, each do their best to prevail. In this understanding, politics is often a tragedy, where every actor behaves as he or she must, leading to an end that none of them wants. This understanding (like all understandings) is partial – but it surely highlights important aspects of the international politics of the Snowden affair. It would be in the best interests of both Snowden and the US if they could reach an implicit accord in which Snowden found refuge in a country whose interests were less inimical to the US than Russia’s. Yet the fundamental political values both of the US state and its opponents means that this is very unlikely to happen.
Debate about immigration usually takes place in one of two registers: the economic and the social. Arguments in favour of immigration are generally couched in economic terms. The social impact of immigration, on the other hand, is all too often seen as negative. As a result of the debate being framed in this fashion, the pro-immigration argument is often portrayed as right-wing, while those who wish to defend working class communities, rights and living standards are often hostile to immigration.
Against this background, the significance of Joseph Carens’s work in insisting on a moral approach to immigration cannot be overstated. The Ethics of Immigration superbly develops the argument that there are fundamental moral principles that should frame our attitude to immigration and shape the immigration policies of democratic nations. It adroitly reveals, too, that what we blandly call immigration controls are highly coercive instruments that brutally restrict basic freedoms.
Yet, if Carens’s argument shows the need for a moral approach to immigration, it reveals also the difficulties in pursuing such an approach. The striking aspect of The Ethics of Immigration , as of much of Carens’s work, are the two distinct perspectives that he brings to bear upon the subject. In the first 10 chapters, he grants the ‘conventional view’ on the framing of immigration, presupposing ‘(1) the contemporary international order which divides the world into independent states with vast differences of freedom, security and economic opportunity among them and (2) the conventional moral view on immigration, i.e. that despite these vast differences between states, each state is morally entitled to exercise considerable discretionary control over the admission of immigrants.’ In the final chapters, he ‘challenge[s] the conventional normative view on immigration’ arguing instead that ‘discretionary control over immigration is incompatible with fundamental democratic principles and that justice requires open borders’. [p10]
For Carens, the two perspectives reveal the distinction between a moral inquiry in an ideal world and one that is framed by the political constraints of the contemporary world. In the early chapters, Carens ‘take[s] the existing international order as a given because that order is deeply entrenched and it is the context within which moral questions about immigration and citizenship first arise for us.’ Because the conventional view is so ‘deeply entrenched’, only by adopting it can one hope to persuade people of the merits of other, related issues such as citizenship or irregular labour. It allows him ‘to explore the nature and extent of the limits justice imposes on immigration policies within a more “realistic” framework’. [p 11]
This dual perspective is one that Carens has adopted throughout his work. The aim of morality, Carens suggests in his 1996 paper ‘Realistic and Idealistic Approaches to the Ethics of Migration’ ( International Migration Review , 30, pp 156-70), is to guide action; if the gap between ‘is’ and ‘ought’ is too great, then moral claims will appear implausible to most people. Such claims cannot guide action, and so fail to function as moral prescriptions. Hence the need for a realistic approach.
Yet, Carens observes, without going beyond the realistic approach to an idealist one, one can never challenge the status quo. Once, slavery was regarded as a ‘realistic’ institution, in the same way as closed borders are today. A realistic moral approach would never have been able to challenge that intuition – or that institution. Hence the need for an idealist approach.
Both realistic and the idealist approach, Carens argued in his 1996 paper, are necessary, in constructing an ethics of immigration. They offer not ‘logically incompatible positions’ but ‘differing sensibilities and strategies of inquiry’. There is ‘no uniquely satisfying perspective on the ethics of migration’; the realistic and idealist perspective each ‘has something important to contribute’.
Carens’s dual perspective argument is particularly important at a time when, in response to growing support, particularly in Europe, for populist, anti-immigration parties, many on the left either dismiss such support as racist, and therefore refuse to engage with the concerns of these voters, or engage with them by conceding the arguments, by pandering to prejudices and by stoking anti-immigration fears. Both strategies have been visible over the past week, in the wake of the success in the European elections of groups such as the Front National and the United Kingdom Independence Party.
The importance of The Ethics of Immigration is in laying out a model of how to engage in debate without jettisoning one’s principles. By accepting conventional constraints, Carens argues, we can engage in conversation with those – the majority – who accept the necessity for controls; through such engagement we can show what the democratic norms that most people accept really demand of immigration and citizenship policy. At the same time, we can use ‘cantilever arguments’ to show how that the conventional view of immigration is incompatible with these democratic norms; such norms require the opening up of borders.
What Carens’s approach does brilliantly is both lay out the arguments and suggest a means for engaging in argument. The dual approach does, however, pose a number of problematic questions. One was raised by Chris Bertram in his opening contribution: to what extent do those voters who are drawn to, say UKIP or the Front National, accept the same democratic norms as Carens does? Or, to put it another way, in engaging with the concerns of such voters, is Carens’s the best starting point? We can pose another question, too, not about the starting point, but the end point: how do we move from one perspective to the other? If the only way to persuade people to take action is by adopting a realistic approach, by accepting the constraints of conventional views on the rights, duties and obligations of states towards immigrants, how do we ever create a world in which ideal morality holds sway?
What the dual perspective expresses is the complex, and often fraught, relationship between morality and politics. In a world in which social structures are given, in which the possibilities of social transformation seem remote, then the moral question people ask themselves is ‘What claims are rational or reasonable given the social structure?’ Morality can only be about defining right and wrong behaviours or policies within a particular structure of a society – or else must appear impossibly utopian. This was the case for much of the premodern world.
But in a world in social structures are contested, politically and physically, then ought is as much a political as a moral demand. This was the change wrought by modernity. The recognition that society can be transformed, and the emergence of social mechanisms for effecting such transformation, has transformed also the meaning of morality. How society ought to be has become defined by the political possibilities of social change. People have to ask themselves not simply ‘What moral claims are rational given the social structure?’, but also ‘What social structures are rational?’. What kind of society, what types of social institutions, what forms of social relations, will best allow moral lives to flourish?
Today, elements of both these worlds co-exist. Few imagine that social structures are fixed or inviolable, and yet there is little belief that much can be changed. Social movements have eroded, social democratic parties have cut their roots with their traditional constituencies, and there is a widespread sense of political disengagement and voicelessness. The consequence is that many perceive society as changing at bewildering speed, but feel also that they have no control over the manner of that change. Immigration has become symbolic both of unacceptable change and of the inability to effect change. And in becoming so, it has transformed also many peoples’ understanding of what morality requires.
One of the key arguments against open borders is that advocates fail to recognize the social bonds that hold people together in communities, and which are disrupted by too great an influx. So, David Goodhart in his response to my review of his book The British Dream , suggested that to defend mass immigration is to ‘adopt a sort of methodological individualism – there are only individuals, floating free of culture, tradition, language, ways of life, who can just slot into modern Britain without changing anything’. This, he suggests, ‘is the left’s equivalent of “there is no such thing as society”’.
It is an argument perhaps most eloquently put by Michael Walzer, who argues in that without tight control of borders there can be no possibility of creating what he calls ‘communities of character’, that is ‘historically stable, ongoing associations of men and women with some special commitment to one another and some special sense of their common life.’ For Walzer, ‘the distinctiveness of cultures and groups depends upon closure and, without it, cannot be conceived as a stable feature of human life’. [ Spheres of Justice , 39]
Carens robustly challenges Walzer’s view, asking for instance, ‘Why focus on the defensive measures (closure) needed to sustain a community under pressure from an unwanted influx of migrants rather than on the positive measures that would make closure unnecessary?’  There is, however, a deeper issue here. A communitarian, such as Walzer or Goodhart, thinks of a community as being constituted through history and bound primarily by its past, ‘an idea of continuity, which extends in time as well as in numbers and in space’, as Edmund Burke put it. Values, from a communitarian perspective, are defined as much by place and tradition as by reason and necessity. Hence a highly particular notion of ‘the distinctiveness of cultures and groups’ (a notion into which Carens, too, to a degree, buys).
We can, however, acknowledge the social embeddedness of individuals in a different way, in terms not of the constraints of history but of the possibilities of change, in terms not of tradition but of transformation. Movements for social transformation are defined less by a sense of a shared past (though most draw upon historical traditions) than by hopes of a common future.
These two ways of thinking of communities and collectives usually co-exist and are often in tension with each other. The idea of a community or of a nation inevitably draws upon a past that has shaped its present. But the existence of movements for social change transforms the meaning of the past, and of the ways in which one thinks of identity.
One of the key consequences of the decline of organizations for collective social change, and the growing sense of political disengagement, has been that many people have begun to view themselves and their social affiliations in a different way. Social solidarity has become increasingly defined not in political terms – as collective action in pursuit of certain political ideals – but in terms of ethnicity or culture. The question people ask themselves are not so much ‘What kind of society do we want to live in?’ as ‘Who are we?’. The first question looks forward for answers and defines them in terms of the commonality of values necessary for establishing the good life. The second generally looks back and seeks answers – and defines identity – in terms of history and heritage.
Michael Walzer argues that open borders will create a balkanized society. Unless states take measures to ‘restrain the flow of immigration’ at the national borders, the result, he insists, will not be ‘a world without walls’ but rather societies broken into ‘a thousand petty fortresses’ as every group or neighbourhood takes matters into its own hands and imposes informal controls to preserve its ‘distinctiveness’. The only other alternative in a world of open borders, he suggests, is the creation of ‘a world of deracinated men and women’. [ Spheres of Justice , 39]
In a sense we already inhabit such a world. European societies, in particular, have over recent decades become both more socially atomized and riven by identity politics. Atomization has played into the hands of a deracinated middle class. Identity politics have helped foster communities defined by faith, ethnicity or culture. For many working class communities, however, these two processes have both corroded the social bonds that once gave them strength and identity and dislocated their place in society. And they have helped turned immigration into a symbol of that corrosion and dislocation. It is not the case, in other words, that mass immigration has created ‘a thousand petty fortresses’ and ‘a world of deracinated men and women’. It is rather that the creation of a thousand petty fortresses and a world of deracinated men and women has helped turn immigration into a symbol of much of what is wrong in such a world.
All this brings us back to Carens’s ‘dual perspective’. I have, as I have already suggested, great sympathy for this approach. It also poses, however, against this background of contemporary social anxiety and the reasons for it, some deep problems about how to address the question of immigration. So, let me conclude with three points that set out some of these problems:
1. Concepts of morality are inseparable from the attitudes to social transformation. As perceptions of social transformation change, so do people’s views about what is and is not morally acceptable. This is why the norms that Carens takes as widely accepted may not be; not because people are being unreasonable, irrational or immoral but because that which is regarded as reasonable, rational and moral has changed as perceptions of social possibilities have changed.
2. Given the symbolic role that immigration plays today, it is unclear to me that the strategy of extending the logic of democratic norms, of using ‘cantilever arguments’, will, of itself, have the desired effect. Open borders, not controls, have, for many people, become expressions of the failure of states to live up to their professed democratic norms.
3. What is missing in the debate, and what is necessary to link the realistic and idealistic perspectives, is a narrative of social transformation. This is not a criticism of Carens’s argument. The Ethics of Immigration sets out to do establish something different, and in that it brilliantly succeeds. It is, however, an observation about the immigration debate as such. It is the breakdown of traditional mechanisms for social change, and the consequent sense of political disengagement felt by many, that has made immigration such a toxic issue. Without addressing that breakdown and that disengagement we cannot address the anxieties about immigration or open borders. The promise of Carens’s dual perspective is that it allows us to engage in debate about norms with those who are hostile to the idea open borders. The danger is that, in the absence of new mechanisms for social change, the consequence may be to entrench the idea of the current system as ‘realistic’ and the open borders argument as utopian.
Kenan Malik’s books include The Quest for a Moral Compass: A Global History of Ethics (2014) and From Fatwa to Jihad: The Rushdie Affair and its Legacy (2009).
Joseph Carens has written a brilliant and stimulating book. I can’t remember the last time I filled a book with so many marginal jottings, either because he had made a striking point that I wanted a reminder of, or because what he said was so thought-provoking, or, often, both.
I agree with the vast majority of Professor Carens’s conclusions. It would make a boring symposium contribution to just list points of agreement, so I’m going to spend a bit of time here on a few points where I don’t agree. Now I’m sure you’ve heard a philosopher give an introduction like that once or twice before, and it can sound rather trite. So I want to start with a couple more positive things.
The fact that the book is so rich, that there are things worth talking about on basically every page, means that it would be a joy to teach. I don’t think there are many philosophy departments around that currently have on the curriculum a course on the ethics of immigration. Here’s some free advice to my fellow philosophers: Add such a course, and have Professor Carens’s book be a central text in it. You’ll get a topic, and a text, that are interesting to people who normally wouldn’t take philosophy classes. You’ll get more topics for fruitful discussion than you can easily handle. And, especially in a university with any kind of diversity, you’ll get the chance for you, and the students, to learn from how the lived experiences of the different members of the class interact with the theoretical issues at hand. I know many universities have been adding, with great success, courses on the ethics of food. A course on the ethics of immigration could have a similar kind of success.
Carens’s book encourages us, among other things, to take two new perspectives on issues about immigration. One is that of the migrants themselves, who have played a surprisingly small role in much academic discussion. A lot of the focus has been on the states constructing the borders, and the legitimacy of their doing so. Carens’s thought experiments often cast the reader as the central protagonist, in many cases the would-be migrant. (E.g., “Imagine you want to move from New York to Los Angeles.”) I think the use of second person examples in philosophy is excessive, and often dangerous. But I think it works here, because part of the point is to see things through the would-be migrant’s eyes. Someone who wants to move, say, across Lake Erie from Ontario to Pennsylvania faces a system of legal impediments, backstopped by the coercive force of the greatest power the world has seen. And that system is not obliged, either legally or according to folk morality, to provide much justification for directing that force at them, should it decide that the impediments will become insurmountable. Indeed,the fact that the person has not provided a positive reason to move that the system finds acceptable is taken to be a sufficient reason to use force against you. This is not what we usually find acceptable in a non-oppressive regime. The state has to justify why it should use force against me; I don’t have to justify why it shouldn’t use force against me. Maybe when I’m an immigrant all of that is right and good. But even so, I think it is right for us to be occasionally shocked by it, and be reminded that it is a state of affairs that stands in need of a very strong justification.
The second change of perspective involves thinking simultaneously about movement within states and between states. Folk morality distinguishes sharply between the two. Compare how you would react if you found out the following facts about three states, A, B and C, that you had previously never heard of.
I think that most people, especially if the two cases are not presented side-by-side, would think that the facts provide more evidence that A is repressive than that B or C are. Internal movement visas are things that we associate with repressive regimes. But the facts about B and C wouldn’t excite anything like the same reaction. Indeed, they are consistent with B and C satisfying most of the standards that folk morality requires for being a free country.
I haven’t done a careful study to check whether what I am saying about folk morality is true. (Here is a place where careful experimental philosophy may be useful!) But I suspect that it is; that most people living in liberal democracies find the idea of internal movement visas repulsive, but think it is perfectly acceptable to have the kind of sharp restrictions on moving into a country that we see in B and C. And it is worth thinking hard about what we can learn both from the fact that liberal democracies allow free internal movement and that we largely think it is a requirement of freedom that they do so. (Though how much we really think this will be an issue we’ll return to presently.)
The fact that there is free movement within liberal democracies undermines some of the more outlandish predictions of the opponents of open borders. Carens quotes Michael Walzer saying that we need closed borders to preserve “communities of character”. But Vermont has open borders (on three sides at least) and is (or at least contains) as good a community of character as one might aim for in designing policy. By the same token, reflection on currently existing polities without borders should tamper our enthusiasm for the benefits that open borders would bring. There aren’t any closed borders, in the sense Carens is interested in, between Trenton, NJ and Princeton, NJ. There are even trains that run between the two dozens of times a day. And yet the wealth of one doesn’t seem to have done much to benefit the residents of the other. This hasn’t happened by chance, and it is worth worrying that the mechanisms involved would be seen more in a world of open borders.
It is tempting to think of borders between states as much more important than borders within states because of the greater inequalities between rather than within states. Indeed, some of Carens’s qualifications to his conclusions seem to acknowledge this temptation. For instance, he writes: “Our deepest moral principles require a commitment to open borders (with modest qualifications) in a world where inequality between states is much reduced.” (288, emphasis added). But I’m not sure that is a relevant concern given the world we actually live in. Already, inequality within states is almost as significant as inequality between states.1 And if Piketty is right, the trend is that inequality within states is rising, perhaps substantially, while all the evidence suggests that inequality between states is falling.
And this brings us back to the worry that folk morality, distinguishing sharply as it does between inter- and intra-state migration, is incoherent. Something like this plays a key role in one of Carens’s arguments for open borders. I think he’s onto something, but the argument doesn’t prove as much as he takes it to. For a first pass at the argument, return to my story about A, B and C above. And assume now that A is a newly formed loose federation of two states, B and C, each of which retains substantial sovereignty. Does this change of status constitute a new form of repression, or not? Folk morality, taken literally, would seem to suggest the new state is more repressive than its predecessors, but this is hardly plausible. More generally, advocates of free movement within states, and strong borders around states, have tricky challenges in determining what, in the relevant sense, is a state.2
Here’s how Carens tries to leverage this tension in orthodox theory into an argument for open borders.
I’m not entirely sure I’ve got the best quote to represent Premise 1 in the intended argument. That’s because I’m not sure whether the analogy is meant to start with a claim about folk morality, or a claim about our current practice, or a claim about institutional commitment, or something else. This unclarity isn’t really a weakness of the argument, though, because it suggests there are a number of distinct arguments by analogy one could pursue in defence of one or other kind of open borders conclusion. And I think Premise 2, properly understood, is true.
My worry is that premise 1 is not true. I’m going to offer a defence of what Carens calls the view that free movement within a state is a ‘membership-specific’ right, rather than a human right. At least, according to folk morality, current practice, and the principles embodied in our existing institutions, it is a membership-specific right. That is, the key intuition is that members of a state should be free to move freely within it, up to resettling in different parts of the state, but that range of freedoms need not extend to non-members. When I say that is the intuition, I don’t mean I agree with it, since I’m an open borders believer. But I do fear it is the intuition most people in the debate have. I fear this because of though experiments like these two. (Both are fictional in their details, though Example Two is I think close to something Australia did recently.)
The US government, in an attempt to boost tourism to Hawai’i, drops the requirement of having an ESTA for people only coming to Hawai’i. So Shirou, wanting a holiday from his home outside Tokyo, gets on a plane with no more documentation than his passport, and flies to Honolulu. While he’s there, he meets someone who tells him some great things about San Francisco. He would like to go, but he needs ESTA authorisation to go. And he can’t apply for that in Hawai’i, nor can he afford to fly back to Tokyo, then on again to San Francisco. So he simply returns home at the end of his holiday.
The Australian government is desperate to get more doctors into rural areas. So it sets up a class of visa for doctors who will work in a rural area for three years. Arya applies for such a visa, is accepted, and moves from Delhi to Broken Hill. While she is there, she is free to visit Melbourne for a weekend, but she isn’t free to move to Melbourne, since there is no practical way she can work in Broken Hill and live in Melbourne. And there is no prospect of her getting a visa that would let her live in Melbourne before the three years are up.
Now if premise 1 of Carens’s argument is right, each of these examples should strike us as grave injustices, either violations of Shirou and Arya’s fundamental human rights, or violations of a good international law. But I don’t think they strike us that way. In both cases they might be instances of bad public policy. Example one may even be a violation of the U.S. Constitution. But I don’t think they strike us as things that are, or should be, violations of human rights treaties.
And that’s a problem because it suggests that fundamentally, we are committed to free internal movement as a membership-specific right, not a general human right. Shirou isn’t a member of the United States, so he isn’t entitled to move freely around it. And Arya doesn’t become a member of Australia until her three years have passed, so she can be restricted in where in Australia she lives. And if that’s right, the argument by analogy doesn’t go through.
It might be objected that Arya, at least, is not really restricted in her movements. She can head to Melbourne for a decent cup of coffee any time she wants. But she can’t move there should she need good coffee every morning, not just on occasional weekends. If freedom of internal movement means the kind of freedom Arya enjoys in her first three years in Broken Hill, the analogy Carens uses doesn’t support open borders. It suggests, at most, that everyone in the world should be free to visit Melbourne on holiday, but the government is allowed to put tight restrictions on which non-Australians can live there. And that isn’t the conclusion open borders advocates should want.
So I don’t think the argument by analogy is dialectically effective. It isn’t one that should make closed borders advocates think that they are tacitly committed to open borders in virtue of their prior commitment to free movement internally.
If that’s right, why do I believe in open borders? I don’t have a well worked out theory here, but here’s the kind of approach I favour. (And I should note that my thinking here has been influenced by several of the other things Carens says.) I think there is a very small class of cases in which a state is entitled to use force against an individual. And in every one of those cases, the state is obliged to explain its use of force in a way that could at least make sense to the target of the force. I don’t think the goals that people hope to achieve by closed borders are sufficient to fall into one of those cases. (That’s in no small part because I think Carens’s objections in Chapter 12 to the attempts to articulate such goals are really compelling.) At the very least, the goals that would justify the use of force have not been clearly articulated. And hence they haven’t been clearly articulated to the targets of the force. So the use of force is unjust. But borders without the use of force to police them just are open borders. I’m not in principle opposed to positive arguments in favour of open borders, of the kind Carens attempts in Chapter 11. But I think there is a simple negative argument in favour of open borders, namely that closed borders require state-sanctioned violence, and state-sanctioned violence requires very strong justification, and that justification has not been provided.
I want to end with a quibble, or perhaps a pet peeve. I think Professor Carens often understates his conclusion. Here is how he sometimes puts it.
The ideal of justice i have identified has two components: a right to freedom of movement across borders and relatively little inequality between states. (278)
But as has been often pointed out, we really shouldn’t care much about the ideal. (Ralph Wedgwood makes this point in a recent blog post.) For one thing, ethicists set themselves too easy, too useless a task if all they do is talk about what heaven will be like. My vision of heaven certainly doesn’t contain guards with guns policing the borders of its different parts, and I suspect yours doesn’t either, but little of practical importance follows from that. What really matters is what would make things better, and what we should aim at doing. But properties of the ideal are not a good guide to this. It certainly doesn’t follow logically from the fact that something is true in the ideal that we should aim to make it true, or be happy that it is actually true. The ideal test-taker makes an even number of mistakes, but little follows from that for the non-ideal. In some circumstances one might think that knowing something is true in the ideal is at least inductive evidence we should aim for it. But that needs to be shown, and it often won’t be true.
This is a quibble because I think Carens’s arguments aren’t really just about the ideal. They are arguments, often strong arguments, that removing barriers to free movement of humans is a good thing, and something we should be aiming for. In the ideal there would be few, or perhaps no, such barriers. But even in the here and now it would be better if there were fewer. That’s the big claim open borders advocates believe, and one we should make clearly.
As Foucault argued, the ability of social science to know something is the ability to anthropologize it, a power to define it. As such, it becomes a problem to be solved, a question needing an answer, something to be put on a grid of intelligibility, and a domain of expertise that exerts power over what it studies. With Piketty’s Capital, this process is now being extended to the rich and the elite. Understanding how the elite become what they are, and how their wealth perpetuates itself, is now a hot topic of scientific inquiry.
Many have tried to figure out why the rich are freaking out these days. Their wealth was saved from the financial panic, they are having a very excellent recovery, and they are poised to reap even greater gains going forward. Perhaps they are noticing that the dominant narratives about their role in society—avatars of success, job creators for the common good, innovators for social betterment, problem-solving philanthropists—are being replaced with a social science narrative in which they are a problem to be studied. They are still in control, but they are right to be worried.
Political economy is political – a fact which many of its most prominent practitioners have ignored, or actively sought to bury. Although it appears technical, it starts from a set of political premisses. It radically emphasizes questions of (purported) economic efficiency, and discounts or actively deprecates questions of who-gets-what, even though theories that emphasize distribution have microfoundations that are quite as solid as the dominant mode of economic thinking. Furthermore, the dominance of these economic theories has had profound political consequences, as scholars as different as Jack Knight and Jim Johnson, Mark Blyth and Steve Teles have documented in various ways.
The reason that Piketty’s book has gotten such a reaction – both from its advocates and its critics – is because it threatens to upset the current equilibrium in economic thinking. As Mike says, it threatens to open up new questions – questions which are profoundly and politically uncomfortable for dominant approaches in economic thinking. The result is that it isn’t only the rich that are freaking out. I would guess that one can explain the immediate reaction of 85% of economists and public writers to the book by looking to their priors on this question – whether they like to emphasize efficiency questions over distributional concerns, or vice versa (another 10% can be explained by whether the writer in question thinks that he/she and his/her mates do or don’t get sufficient citations and respect). People who might have found the book interesting had it been an academic exercise, and perhaps even agreed with large parts of it, are freaking out because they worry that it has serious implications for political debate. If people start debating whether capitalism is inherently rigged, so that those with a lot of capital will naturally do better than those who won’t, … well who knows where they might go next.
To be clear – this doesn’t invalidate criticisms of Piketty’s book, any more than it means that his arguments are necessarily correct. Even if the actual reason why people are casting around for Devastating Critiques is because they don’t like the book’s political implications, they may actually find good criticisms, and uncover real mistakes. Motivated reasoning, if properly harnessed, can be epistemologically very valuable. That methodological critics of Piketty (and people insistently suggesting that there’s nothing very interesting to be learned from studying the distribution of wealth) nearly all clump together in one ideological camp, and people defending the methodology clump together in another, doesn’t mean that the dispute between the two isn’t useful. Argument about politically divisive topics is only disinterested in rare and isolated instances – yet it still can have great benefits. What it does mean is that the dispute, in the end, is a directly political one – over what constitutes the proper subject matter of economics and the other social sciences. Plausibly, it’s the people who are least willing to acknowledge the political aspects of the debate who are most completely captured by them. Practical economists, who believe themselves to be quite exempt from any political influences, are usually slaves of some defunct political philosopher.