Georgiana TurculetPhD candidate at Central European Universityturculet.georgiana@ceu-budapest.edu

AcknowledgementThis paper was written while I was a Marie Curie Fellow at the Migration Research Center Mirekoc and the Department of International Relations at Koc University, Istanbul, Turkey. I am grateful to the Director of the Center, Ahmed Icduygu, and the colleagues from the Center for their support.

A Conceptual Map of Theories of Migration: Is

Migration too Politicized or too Philosophized?

Introduction

This chapter concerns transnational migrationi, specifically the

rights of would-be migrants and the rights of states to unilaterally

set their border policies. According to United Nations estimates,

there are 214 million international migrants worldwide, 44 million

forcibly displaced people, while another 50 million people are living

and working abroad with irregular status. The proliferation of terms

to describe the varieties of migrancy-- permanent resident, guest

worker, illegal alien, refugee, displaced person, asylum seeker-- is

itself indicative of the scale of the phenomenon. Each term denotes

a different type of experience, and a different relationship to the

new society and inevitable implications for democratic politics and

for the meaning of citizenship (Bellamy, 2008, pp. 597-611). Put

crudely, the global migration phenomenon seems to “challenge” states’

1

borders as we understand them today and states try unsuccessfully to

“resist” this expanding phenomenon, by erecting new fences and walls,

and posting guards at their bordersii.

When it comes to the issue of transnational migration and its

normative demands on states’ borders, some theorists advocate a world

of open borders, while others support the full sovereignty of states

in matters of immigration. While each position offers important

insights to the debate, my interest starts with acknowledging that a

plausible justification for the fully fledged right of states to

exclude, as well as a more nuanced reflection on how morality imposes

limits on this right, are still needed. This chapter seeks to address

the question of whether, and to which extent, border policy can be

unilaterally set by states and on what normative grounds (compatible

with liberal and democratic theories) migrants can be denied entry to

countries and have their rights restricted in today’s world. Far from

proposing a concrete response to this complex question, I present an

overview of the most recent arguments and propose ways in which the

framework can be best conceptualized towards a correct assessment of

the issue of migration.

1. Methodological Remarks: Theories of migration, ideal and/or

nonideal?

Issues posed by international migration are philosophically evaluated

from both ideal and nonideal theory perspectives for the most part,

or from one of the two angles. This means roughly that some

philosophers take the ideal stand- by John Rawls’iii definition, ideal

2

theory works with assumptions of strict compliance and favourable

circumstances- that is, principles of justice are worked out on

assumptions that historical, economic and social conditions do not

preclude the possibility of a just society, and that individuals will

comply with the principles’ demands, thus on assumptions that are

idealized and abstract from any contemporary society. Meanwhile,

nonideal theorists take into consideration partial compliance, namely

those injustices limiting the existence of a just society in the

first place, and with unfavourable conditions, which are socioeconomic

limitations to a well-ordered and just society. From here on, strict

compliance and favorable circumstances will be abbreviated SC and FC,

and partial compliance and unfavorable circumstances PC and UC.

What is the correct analysis of migration, ideal or nonideal?

Most studies evaluated in this paper take a nonideal perspective,

which means that in evaluating the regulatory principles as well as fully-

fledged principlesiv distributing rights, duties, burdens, benefits, etc.

among individuals, depart from ideal theory in that they are

sensitive to some of the actually existing levels of non compliance

in our world. For example, when Phillip Cole (2014) claims that

borders are not natural facts, but are historical facts, resulting from the

colonial times, and encapsulating forms of injustice, which will

continue to exist if we accept them as the status quo, he is departing

from ideal theory in that he considers PC (borders, as social facts,

that are at least in some sense unjust), and UC of the world (borders

divides, and unjustly creates divisions between poor and rich, where

the latter is increasingly becoming richer at the expense of or

independently from the former).

3

Echoing Benhabib, and as the Rawlsian distinction of ideal and

nonideal theory forsees, I view migration as a matter for nonideal

theory, thus considerations of historical contingencies and actual

justices are taken into account in the study of contemporary

migration. Contrary to the Rawlsian ideal utopia in The Law of Peoples,

according to which democratic society, like any political society is

a “complete and closed social system”, I assume that democratic

societies are “interactive, overlapping, and fluid entities, whose

boundaries are permeable or porous, whose moral visions travel across

borders, are assimilated into other contexts, are then re-exported

back into the home country, and so on.” (Benhabib, 2004, p.87) In the

Rawlsian ideal, according to which we enter a society by birth and

exit it by death, no concern about migration arises. However, our

intuitions strongly conflict with the Rawlsian view of such static

world of “self-satisfied people, who are indifferent not only to each

other’s plight but to each other’s charms as well” (92). Rather,

supporting the idea that peoples’ interactions are “continuous and

not episodic; their lives and livelihoods are radically, and not only

intermittently, interdependent” (97) Therefore, conditions of entry

and exit into liberal-democratic societies and ways in which we think

about border policies, unlike the idealized Rawlsian view are

problematized qua. I argue that we need to start from nonideal

assumptions in migration studies, not only because we need to detect

existing global injustices (that triggers migration, see the next

assumption), but even if we were to start from an ideal standpoint,

we would still view migration as something that is not external to the

basic structure of the society. It is not, in other words, a problem

4

that comes with the existence of nonideal circumstances, but it is a

feature of the world structure, like the “basic structure” itself,

even if the latter is viewed ideally.v

Following Beitz (1979), Young, (2003) and Pogge (2002, 1992), I

further assume that of a world with great economic disparities

between “peoples” has an impact on migratory movements, causing a

“pull” of the poorer in the world to higher standards of living. With

regards to the central debate on the question as to what extent

affluent societies and persons have obligations to help others worse

off, among other reasons, I assume that -- because the institutional

order which involves a complex pattern of interaction and

international interdependence that contributes to maintaining the

status quo or even exacerbates the situation of the poorer -- there is

a moral obligation on the better off towards the worse off. However,

I will not discuss extensively the scope and the content of

principles of distributive justice, as it is not my focus. This is

due to the fact that there is major disagreement among philosophers

on principles of justice and their scope. This does not preclude

thought on assuming that injustices deserve addressing. Thus,

assuming that circumstances that wrong some, for instance if one is

born in a poor state and his life chances are extremely limited,

assistance is not required neither in the form of encouraging, nor

allowing him to migrate. A strong case must be built for this

argument to hold. Thus I will make assumptions about owing others,

and bring the focus on howvi we should meet such obligations,

particularly when it comes to would-be migrants’ admission at the

state border.

5

However, if migration as a social phenomenon is best understood

under actual circumstances (namely we take for granted the two main

assumptions listed), this does not exclude nor undermine Rawls’ main

concern to having an ideal framework ahead of our nonideal

circumstancesvii. It is therefore still desirable having ahead an aim

to supplement nonideal theory, and this aim can be provided by some

idealized solutions. Think for example, during times in which slavery

was morally acceptable as a social practice, or in which women were

unequal to men in relevant ways (political and otherwise) and that

these assumptions have lasted for millennia. In those times it was

conceivable, ideally, to abolish inequality among individuals, or

gender-related inequalities, but seemed not feasible politically,

besides morally seeming unimportant or undesirable ideas among most.

Yet, the ideal of equality was worth existing in order to be pursued.

Seemingly, ideal and nonideal views on migration can be seen as long

term (ideal optimums), and short term aims (transitional aims from

injustice, without giving an optimum) for our societyviii. Yet, in the

field of migration, both are needed: we might evaluate whether

state’s restrictions on immigration are legitimate, which is a

normative question aiming at coming up with a normative prescription:

(1) in ideal terms of well ordered societies, and (2) in non well

ordered society, in which allowing border restrictions could triple

the number of immigrants’ death occurring during border crossing

attempts. Ideal theory must know whether restriction in general or a

particular kind of restriction produces deaths of individuals, or

acknowledge which feasibility elements must be taken into account if we

look at how restrictions, understood as rights, will function, before

6

concluding the force of the right to exclude. Like in the case of

affirmative action, we might disagree with such programs in general,

but in order to combat widespread existing racism, we might end up

advocating it.

With this in mind, imagine three idealized solutions to the

“global poor problem”-- namely different countries, in which citizens

of some countries are far worse off than others of some other

countries -- each assuming a liberal egalitarian approach. Those

solutions also reflect an assumption of human moral equality and a

commitment to the equal moral worth of all human beings, without

presupposing a form of ‘strong’ cosmopolitanism that “requires every

agent to consider the interests of all human beings before acting or

that insist that every policy and institution be assessed directly in

terms of its effects on all human beings. It does however, entail a

commitment to justification through reason-giving and reflection that

does not simply presuppose the validity of conventional moral views

or the legitimacy of existing arrangements or our entitlements to

what we have.” (Carens 2014, p.556)

Three possible aims. (i) and (ii) start from nonideal conditions

(some people are worse off), and propose two idealized solutions: (i)

redistribution of resources is desirable until the worse off reach

some decentix level, and (ii) open borders policies will rectify

inequalities (because it is assumed that migration helps migrants and

those left behind). Case (iii) starts from idealized conditions

(everyone is decently well off) and proposes an ideal case: immigration

is desirable and should be accommodated by receiving states.

7

(i) Closed border theoriesx generally claim that massive

redistribution from wealthy to poor countries is desirable to

equalize such economic and social disparity. Immigration is

desirable, but conditional on serving the interest of receiving

countries; therefore immigration is an admissible solution (to

helping the worse off) if it happens to serve some wealthy countries’

interest (e.g. California’s flourishing economy thanks to Mexicans’

skills in agriculture, their low salaries, etc.). National self-

determination prevails in setting its interest, and migration

policies, as all other domestic matters are to be established based

on this interest. If immigration of some worse off into more

flourishing economies (generally Western) might be one out of many or a

solution to helping the worse off, we might be suspicious of this

proposal because it seems too ‘unbalanced’ or harsh towards the worse

off. If we take seriously the two assumptions we adopted from non-

ideal theory (non-PC and non- FC), and egalitarian requirements

(socio-economic means should not preclude the possibility of a just

well ordered society), most theorists accept that it might consider

that it is too harsh from a justice perspective favouring the

interests of those already well off at the net expense of others whom

are already more disadvantaged either because they were historically

wronged, or because of other independent moral considerationsxi.

(ii) Open border theoryxii claims that freedom of movement across

borders will enable the less fortunate to pursue their goalsxiii, and

more broadly, overall better lives for those directly involved

(migrants) and others. Equality is achieved by means of free

8

mobility. This scenario is implausible in line with the empirical

claim that the poor are far more numerous than the ability of wealthy

states to receive them; mass migration of individuals from all

corners of the world to small wealthy countries, is of no good to

anybody. We therefore might decide to discard this proposal as well,

if and only if the latter empirical claim is true: whether large

groups migrating to other countries would undermine the orderly

functioning of these societies, that is, their institutions and

welfare).

(iii) A porous border theory (e.g. Kantian account of Seyla Behanbib)

claims that re-distribution and “regulated” migration by states (in

the sense that does not entail ‘completely’ open borders and complete

freedom of circulation of individuals) are not mutually exclusive

strategies to address the problem; the claim is that the application

of both, re-distribution and regulated migration, ‘better’ pursue the

ideal of equality. And more. According to this theory many values

count along side the value of self-determination, in which is

grounded the right of states to regulate migration in their own

interest. On this basis, it is problematized how far self-interest

can go, and it articulates instances in which states self interest is

to be ‘negotiated’xiv against other competing interest and values.

This is the proposal most theorists, independently of whether they

argue in favour of the state’s right to exclude, or rights of

migrants to settle elsewhere, seem to take. Of course, all accounts

vary significantly regarding the reasons they provide for their

account (e.g. exclusion is justified by cultural claims,

9

jurisdictional claims, freedom of association, etc.), and moreover

their accounts are positioned anywhere on the axis between I and III.

The terms “closed”, “porous” and “open” borders are therefore

misleading. All accounts found in the literature and which will be

analysed in the following section will fall between I and III: if

they will be classified under the “closed” border view, this will

indicate that they tend to be more inclined to consider the right of

the state to control immigration in the national interest (towards I)

or if they are under ‘open borders’ they tend to build arguments in

favour of migrants rights to settle elsewhere.

We can confidently claim that almost no theorist would like to

support any extreme positions (see figure 1), which goes beyond I on

the left, and/or beyond III on the right. If their account were

placed towards the left of I, we would have allow a ‘totally closed

country’ such as the current North Koreaxv, which are incompatible

with liberal-democratic basic assumptions. If we moved on the right

of III, we would allow counterfactual cases such as a small country

like Hungary (roughly 11 million) hosting beyond its capacity a

portion of say, the population from a big country like China

(empirically) and we would allow the dangerous move according to

which the concept of membership (citizenship and residence) becomes

irrelevant (if anyone moves anywhere).

Closed Border Porous Border

Open Border

-------

10

I___________________________II_______________________________________

_III---------

<--------------------------------Permissible

cases------------------------------------------------->

Figure 1.

Notice that the intuition put forward by the idealized porous borders

theory is that equality (broadly understood) is not the only

desirable goal, but there is more to it. The idealized case (i)

obtains idealized equality (broadly understood) of all members of all

countries, after the redistribution. In (iii) perfect equality also

is obtained, if both redistribution, and migration takes place

(assuming empirically this is the case). Yet, we seem to prefer

idealized solution (iii) to (i). Although we share the idea that a

world in which resources are distributed in such a manner, including

systematic transfers from others to us, for us not to desire or be

forced to move elsewhere, we still have the intuition that something

is missing. We share the intuition, compatible with (iii), that a

well-ordered society both guarantees enough wellbeing for us not to

need nor desire to move elsewhere, yet guarantees the choice for any

of us to move (and be granted access) elsewhere, if we want to, for

any sort of (decent and non-malicious) reasons (or values we cherish

as a society) in the pursuit of our goal (to relate to others, trade,

exchange goods, communicate, work together, learn from others’

discover, etc,)xvi, and if this poses no threat to receiving societies

(endangering their institutions, welfare, etc).

11

If our intuition merits further exploration (the reader might

disagree with this point), the question is then: what kind of reasons

do migrants count on as valid, when facing the national border? Of

course not all reasons are acceptable, but if these are grounded in

values universallyxvii cherished by our society, they should be valid.

Should the state not take migrant’s reasons seriously toot court? No,

it shouldn’t. Any account which otherwise supports this will fall in

the impermissible extreme on the left of the axis (figure 1). The

state can exclude migrants, but it does not enjoy such legitimacy as

to turn them down with no moral justification. The state can turn her

down, by firstly justifying its actions, and a justification that is

acceptable to her, and grounded on what should be acceptable to most.

If this is true, should their interests (or reasons) be weighed

against the reasons of the host country’s citizens, rather than the

legitimate national interests of the latter prevail only? It seems

that it should. The task of political philosophers is then to set -

once we accept both, the right of state to exclude sometimes, and the

rights of individuals not to be stuck in a place simply because they

are born there, but move elsewhere if they wish to do so - what is

the correct balancing of rights, moral considerations at stake, and

values (e.g. justice, liberal freedom, democracy)?

This philosophical task needs to be methodologically conducted

in two steps. First, ideal theory can identify the long-term goals,

which are in line with Rawls’ view, ‘achievable’ and ‘realistic’

aims. And second, nonideal theory is required in order to theorize

about addressing already existing injustices, a standpoint without

which we would probably face the risk of not evaluating migration as

12

it takes place in today’s world (PC and non-FC). As Rawls claims, the

role of nonideal theory is to reveal the principles that govern how

we are to deal with injustice” (Rawls. 1999a, p.8) whereas ideal

theory elaborates those principles that inform us how a perfectly

just society should look like.

The reader might find some inconsistency regarding the

functioning of primary and secondary principles of justice. If we take

primary principles (the ones chosen behind the veil of ignorancexviii

to have lexical priority on the secondary ones), and the secondary

principles to tell us what to do if the primary ones are not complied

with, we might think that choosing free movement under the veil of

ignorance is inconsistent with the distinction Rawls makes between

the two level principles. Primary principles of justice are chosen

under ideal conditions of justice, and conditions of SC. As stated in

The Law of People, Rawls’ ideal theory is concerned with well ‘ordered

peoples’ only (Rawls, 1999b, p. 11), and under these circumstances

migration issues would not arise. For this reason, open borders

theorists start building their cases in virtue of the non-SC and non-

FC, thus their open borders view is justified as attempts to rectify

existing injustices.xix In other words, it seemsxx that Carens forces

Rawls’ hand to introduce into ideal theory the freedom of movement as

one amongst other fundamental liberties, because in his view

injustices exist even in an ideally just society, which is not and

cannot ever be perfectly just. Carens further argues that from a

nonideal theory (thus adding non-SC and non- FC for a just society)

the open border case is even stronger (Carens, 2014, p. 556). Due to

vast economic disparities across the world, and states borders

13

patrolled by guns, some individuals are confined to poverty as

peasants were confined to misery in feudal times.

Contrarily to this view, I argued in case iii, migration arises

in the ideal world as well insofar as people cherish freedom of

movement. Notice, however, that in my idealized case (iii) freedom of

movement is not chosen out of need, generated by injustice, but as a

freedom we might want to have at our disposal in the same way we want

other freedoms.

Why should freedom of movement be a chosen fundamental freedom

behind the veil of ignorance? Anyonexxi would argue that being captive

in a room all her life, even if she is kept well fed, well dressed,

with satellite TV, and all the conditions that would make her happy,

she would still opt for being free out there. It is not enough to give

people what they supposedly need to satisfy their basic needs, or

even in extremis, expensive taste (see Dworkin argument on this topic),

but freedom to move is what we choose nevertheless. That is, she will

want freedom of movement even if her needs are met. However, how do I

justify freedom of movement as an international freedom of movement,

that is, across states borders from a more generic argument for

freedom of movement? If the state in which I am residing, or I was

born, provides an adequate range of options for me to pursue, why

shouldn’t this be enough, and why should I claim moving anywhere I

wish? Human interests (e.g. free speech, freedom to marry, to

associate, health etc) are guaranteed in their most generic form,

rather than specific interests, namely in the form of ‘food’ rather

than ‘caviar’. This is at least partially implausible. Even if my

interests are categorised generically (right to food, health, love,

14

etc, rather than right to eat x and not y), they must at least

partially regard my own needs, and therefore be content-specific.

Having a range of options that is decent enough is not a necessary and

sufficient condition to fulfil the freedom to pursue what matters to

me. Kieran Oberman (Oberman, 2012) brings two convincing

illustrations to make the point about any human interest one might

want to pursue. Take the example of love and health: I am not really

free to love, if I am not free to love the person I love, and if I

am given a headache pill I am not helped, if I need is insulin for my

diabetes instead.

My view that freedom of movement is a basic right goes beyond

being instrumentally necessary for fulfilling other human interests

(to love, to health, etc). Even if my interest to love is being

fulfilled, say that I have been lucky enough to find the person I

love in my neighbourhood, and so, all other fundamental interests are

fulfilled, and are content specific, my freedom of movement should

still stand. Ideally, if I am not being forced to move, but I want to

move, and me moving will not burden the place where I am moving, I

shall then move.

What does this entail? Would it mean that because we have this

freedom we would most likely use it, all of us and at the same time

could move around the world? No. It presumes that most people are

sedentary. Take the example of Europe, which, although has guaranteed

free movement for its citizens for the past half century, only a

small percentage, under 5% of the population has migrated and settled

elsewhere in the European Union. It works the same with other basic

freedoms, I have the right marry, but can decide not to. It is not a

15

violation to this freedom the fact that one third of the world

population, or even possibly a majority of it might not marry.

Similarly, I have a right to free speech, but I don’t spend all day

going around shouting what I think about everything. On the contrary, I

do speak on the occasion in which communicating my viewpoint matters

to me. If I am at home not talking to anyone, I am not less free for

not using my freedom of speech in the given moment. Same if we think

of freedom of association, one might decide not to associate with a

club, or a political party and stay at home and watch TV in his free

time. Migration could work in the same manner. Some will make use of

it some may well not. Notice that the presumption that most people

are sedentary, namely they might not move over the course of their

life elsewhere, is an empirical observation, which of course could

change significantly should the structure of our world be differently

designed. This presumption, however, cannot be philosophically

settled and cannot be further scrutinized in this paper, although it

is one such facts of the world that matters in migration studies as

it seems importantly distinct determining whether people do or do not

cross borders because of the existence of states borders, or because

they would or wouldn’t anyway.

Nonetheless, if a primary principle demands free movement,

lexically, the secondary principles articulating what to do with

injustices generated by non favourable circumstances (e.g. peoples in

need of decent lives), should deliberate seemingly in the same

direction to rectify all those instances in which individuals are

impeded from moving (e.g. by states’ borders). In conditions of PC,

which means that not all societies are well ordered, people from

16

minimally decent societies are forcedxxii to move in order to access

opportunities, etc., rather than free to move if they wish so. But

the assumption that one need deriving secondary principles

implementing somehow freedom of movement, understood as a demand of

the primary principles, is too rushed. One can think that under non

FC, therefore at the level of nonideal theory, one can either

advocate opening borders (implementing freedom of movement), or

address the reasons why some individuals are in need and prescribe

secondary principles to bring about the ideal order of well ordered

societies, so that individuals move because they choose to do so,

rather than because they are forced. Thus, it is plausible that

primary principles demand freedom of movement, and that secondary

ones demands non-freedom of movement when transitioning towards the

ideal order. An independent argument is needed for why freedom of

movement, which is desirable under ideal and favourable conditions, is

even more desirable under non-FC.

Today, moving across borders is not a matter of inner aspiration

(loving Mozart, wanting to trade, exchanging goods and ideas,

following some esoteric philosophy of life as an act of free

conscience), but for most, it is a matter of need: need to improve

ones’ chances, opportunities, feed ones family, etc. The kind of

migration we deal with today is primarily need-driven (Pogge 1992,

Beitz 1979).

In other words, if our intuition that migration (free movement)

would be chosen from behind the veil of ignorancexxiii, as I suggested

in the idealized case three, becoming therefore also a basic freedom

such as freedom of movement, freedom of conscience, etc. the work in

17

the field of nonideal theory, should be concentrated in regulating

ways in which these freedom must be guaranteed (for example, by

abolishing states’ borders, or identify those patterns producing

injustice, or having produced injustice in the past and last up until

the present day). To recapitulate, I argued against the assumption

that if in ideal circumstances freedom of movement is a fundamental

right, in less ideal circumstances (economic need of some, etc)

freedom of movement should be even more demandedxxiv.

This would be a rushed conclusion. And it would also be

inconsistent with the ideal case iii I presented. It would be rushed

because it is not immediately evident that migration will help those

in need, even if it happens under the fairest procedures. We could

for example figure out that economic disparities between societies

are due to trade patterns, which benefit those, already powerful and

impedes the flourishing of these disadvantaged people. In such a

case, justice might as well demand rectifications of such patterns

before considering migration the solution. If this evaluation should

take place, it is most likely that migration is one of the solutions,

among others (rather than the solution).

And it is inconsistent with my ideal insofar my case demands

that people should have both the right to stay in decent conditions

where they have their families, community and interest, and should

have the choice to move elsewhere, rather than being forced to do so.

It also demands other forms of distribution either in alternative or

supplement to cope with inequalities amongst peoples.

Last, my case did not abandon the basic structure of the

society, as viewed by Rawls, made of a world of states or ‘closed

18

communities’. States are theoretically able to accommodate migration,

understood as a moderatexxv amount of people moving elsewhere without

malicious intentions, taking residence and settling temporarily or

permanently elsewhere. My plight was towards (1) assuming that if we

accept the structure of the society (made of ‘closed’ communities) we

exclude migration as a constitutive part of it, and (2) not jumping

to the conclusion that the lexical order existing among primary and

secondary principles of justice, demands that freedom of movement

desirable in ideal theory is even more desirable in nonideal theory.

I argued that it might not be the case, or might as well be, but an

independent argument is needed to settle the issue.

So far, the guiding intuition is that the ideal porous border

theory is desirable over the other sets of theories insofar as it

promises a more nuanced account of balancing all competing reasons

that count in the encounter of a migrant with a state border. The

difficulty is to identify on the axis (figure 1) where porous borders

begin and ends, in other words where exactly is the clash of

disagreement between closed border and porous borders, and further

between porous and open borders.

I will argue in the next section that all cases are cases of porous

border because they all ask de facto the same question: what is the

desirable moral balancing between concerns towards everyone’s

interests and the legitimate interests of states? I only keep the

dichotomous terminology open versus closed, understood as the states right

to exclude versus migrants’ right to migrate found in the literature, in order

to explain these positions. And I will argue that we need to abandon

this dichotomous view.

19

With these methodological clarifications in mind let us explore

some of the major or most current nonideal theories in the field. Far

from being an exhaustive conceptual map, I will aim at explaining why

for some the right of state to exclude is more emphasized, whilst for

others, the right of migrants prevails.

2. Open versus closed borders views

The literature presents us with two “extreme”xxvi positions, some

advocating open borders others supporting closed borders. In this

section I will address the two main theories of open and closed

borders, and show how in fact both clusters theories converge towards

the centre of the axes (see figure 1). This indicates that they

converge in asking, who has authority to decide in matters of

immigration, and which decision is just. Yet, in responding these

questions they converge in asking what is the desirable porosity of

borders, in ideal and not ideal terms. This is because who has the

legitimate authority to decide does not have an ‘absolute’ right

anything one wants, and this is because not every decision is

acceptable as just (Yong, 2014), or as compatible with other values

we cherish, e.g. democracy. Thus, at the end of this section, it will

be shown that, like in the ideal cases discussed in section 1,

extreme positions, which are too restrictive or too permissive migration

policies, are not allowed. Ones we agree with this, the difficulty

stands in deciding when in principle and in practice, theories are

too permissive or too restrictive, and how we draw a threshold line.

20

2.1 Closed borders theories

A fundamental assumption of democratic thought, which stands at

the basis of citizenship in Western liberal democracies, and what I

call the closed borders view, is the principle of national

sovereignty. When it comes to contemporary transnational migration

(usually, from the Third World to wealthy, Western democracies), the

power to admit or exclude aliens is inherent in national sovereignty

and considered by most theorists to be essential for any political

community. Every state has the legal and moral right to exercise that

power in defence of its own national interest,xxvii even if that means

denying entry to peaceful, needy foreigners. States may choose to be

generous in admitting immigrants, but they are under no obligation to

do so.xxviii I call this liberal-statist view “closed border theory”xxix

as it provides arguments in support of closed borders and border

policies that are unilaterally set by states in line with their

(national or state) interest. Different accounts defend this view,

for different reasonsxxx, and joining slightly different conclusions.

However, most views of closed border debunk the “open borders” view

with a widely shared argument.

Closed borders theorists do not disagree with Joseph Carens’

basic argument for open borders assuming that moral equality does not

stop at the state border, but that Carens’ view does not account for

why citizenship is arbitrary like ethnicity or race. They argue that

moral equality does not entail political equality, and that even if over

the course of time it could be the case that the former demands the

latter (e.g. closed borders theorists generally support the idea that

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liberal democratic states should lay the path towards citizenship to

long-term residents), this does not produce a form of political

equality allowing all to have ‘a political say’xxxi at the border,

when claiming access. If everyone had a right to a political say

anywhere, (e.g. a Turkish citizen living in Turkey voting on Swedish

law regulating highways) the idea of citizenship would be dangerously

undermined or made irrelevant.

Although citizenship arises in such a manner that individuals cannot

be blamed or credited for it, in the sense that where one is born

does not pertain to any choice of the subject herself, thus appearing

morally arbitrary, the border is not irrelevant insofar as it marks the

morally relevant relationship between its citizens and foreigners,

indigenous and visitors. Hence, moral equality does not require

political equality tout court insofar as the state exercises power over

those living within its borders, which it cannot do to others; the

justifiability of states’ institutions is due to those subject to its

authority, more precisely legitimate authority, thus, far from being

morally irrelevant, citizens of a country are those who maintain its

political and social institutions (subjects to and authors of them).

Thus, moral equality and more broadly liberal principles of justice

are not, by this view, inconsistent with immigration constraints of

states, if we consider valid such jurisdictional-institutional

argument.xxxii This informs us that a state has the legitimate power

and authority to enforce laws domestically, among which, immigration

law. The question is: can the state enforce all kinds of laws as it

sees fit to its national interest? No, it cannot enforce all the laws

it wants, even if the latter are democratically decided, which makes

22

them legitimate laws. States laws cannot reflect racism, cannot

reflect forms of discrimination (if a state is liberal it cannot

inquire into an individual’s sexual orientation, and say I don’t

grant you entrance because you are a homosexual), and it cannot deny

entry to those fleeing war and whose lives are at risk, even if this

were democratically decided, without being morally condemned or

retained blameworthy. One might say, the state might decide to pay

some other state, which is e.g. closer to the warzone, in order to

have refugees accommodated. Yet, this form of discharging the duty,

it is not a denial of the duty itself, but a choice to perform the

duty differently. The reason why this is so is because the state

cannot morally justify abandoning people whose life is threatened

without any action, if it were in its power to act according to its

duty. The argument is, if someone is drowning, and I can swim, I

shall attempt to save her. If I can’t swim or I am afraid and don’t

trust my skills, I shall still attempt to save her by calling the

lifeguard or some other passenger who could do it. Morality does not

allow me to just turn around and keep on building my sandcastle

according to my plan to finish it in the next half hour.

It seems then that accepting that states have the right to

exclude must entail limitations of such right, which makes this right

a qualified right rather than an absolute right.

How about other arguments for why states have a right to decide the

openness or closure of its own borders? Following Blakes’ suggestion

(2014) we classify other arguments for closed borders with a

distinction in mind: those reasons justifying exclusion on a right-

based argument, and those independent moral considerations (e.g.

23

culture as a reason for restrictions). To this distinction, it is

pertinent to also consider a third category of arguments, purely

practical: these arguments that are economic, more specifically related

to receiving states’ welfare, and their institutions, allegedly under

threat if an excessive number of migrants would settle in a given

territory, or at a very fast pace (Paul Collier, 2013). I call this

third category of arguments ‘practical’ because they are decided

based on what would be an ideal number of immigrants to cross, and at

which pace, rather than whether migrants should cross borders and

settle in the first place. These issues cannot be settled by

philosophical arguments only, but social sciences studies are to

evaluate the potential impact migration has or will have in the

future, and therefore to complement the normative desiderata.

Suppose that, with Blake (2014), we decide to discuss the

practical arguments from a distributive justice perspective. He

argues against Philip Cole’s argument for open borders, more

specifically, permissive and ‘inclusive’ immigration policies. Cole

asserts that borders, understood as practices of exclusions of

others, in general maintain patterns of unjust distribution, when

impeding individuals to migrate to other places where they would

enjoy more flourishing economic perspectives, better employment, and

more rights, etc. Besides, the borders are in the latter’s view not

natural facts, but the result of the process of colonization and

historical formation, which has not been just over time, producing

therefore arbitrary lines, dividing rich and poor, depending on which

part of the line one is born. The bad luck would be being born in

Mexico or Haiti, and the good luck in the United States or Europe.

24

As Blakes correctly puts it against Cole, not all borders are

postcolonial reminiscences, and even if Cole is right, a separate

argument is needed to show that open policy migration is the response

to repairing past and presence injustices. However, their contrasting

views cannot be resolved mostly because many theoretical levels are

conflated. Let us attempt to clarify.

Cole’s argument, as reconstructed by Blake is that (1) open

borders will help the global poor, by letting him or her access a

bundles of goods (rights, wealth, security and other protections

offered by a ‘better’ state, etc.) and (2) the normative argument

that global distributive justice requires the absence of the practice

of exclusion.

Starting with the second argument, Blake argues that it is not

exclusion itself that is a problem, but some patterns of exclusion.

In fact some patterns of exclusion could be/are props of colonial

privilege, but there are such cases where this is not the case. On

the contrary, some recent patterns of migration could upset the

already fragile justice distributive equilibrium in some countries,

and undermine exactly what Cole cherishes the most: social justice.

In the case of Mozambique for instance, indigenous are protesting

against new waves of Chinese immigration, as these are taking place,

it is depressing Mozambique’s already scarce distributive justice

patterns. Blakes therefore derives that, independently of the

Mozambiquan workers being right or not, open borders migration

policies are not always a remedy to global distributive injustice. He

continues: if we were to use the global distributive justice as a

criterion for opening and closing borders, it would be unlikely that

25

we will get to an open borders program.

If the claims of the protesters are correct in the sense that

their overall wellbeing is being undermined by the immigration

process (meaning their claims are not irrational, as claims about

immigration can often bexxxiii), this makes Blakes right only in one

way, which he himself acknowledges: the global distributive justice

can bring about openness and closure of borders, if implemented on

the basis of global justice principles. Does this mean that global

distributive justice principles are not appropriate to adjudicate

immigration policies’ existence and they should not regulate

immigration (whether more open, or more closed)? Blake’s argument is

silent, gives us no response, or at most it says sometimes it should

open borders, and sometimes it should restrict immigration.

Furthermore, Blake does not undermine Cole’s argument that many

borders nowadays are de facto post-colonial reminiscences and keep on

operating by privileging some, whose wealth accumulation has at least

in part historically wronged someone else.xxxiv The question both

theorists should answer first and properly justify is whether theory,

and specifically principles of justice should operate by taking into

account a historical perspective, whether distributive justice should

generate principles to eliminate inherited injustice, unjust

distributive patterns, cast-like societies, etc. From their debate it

seems important to (1) empirically verify whether and which borders

encapsulate historical wrongs, and (2) carry on a conversation on

whether historical perspective is to be taken into account in

normative theory. In fact, I presume both of them agree with (1) and

(2).

26

Against Cole’s first argument, Blake advances two criticisms:

open borders would not be conducive to more global justice because

(1) how the wealth is produced, which is, not by natural resources,

but by a number of complex factors, including existence of decent

political institutions, lack of corruption, existence of loyal elites

to the national community; thus opening borders would not make poor

sending countries better off, and could also undermine the stability

of the receiving countries (argument also found in Paul Collier

2013). (2) People might have a right to development in their own

society, and even if people might have a right to migrate as well,

this would not be the response to global poverty (argument also found

in Oberman 2011). Both arguments are dependent upon the

jurisdictional theses, according to which members of the same society

by sharing liability to the same network of legal rights and

obligation also have a (thin or weak) right to exclude others from

their society.

Both arguments are normative arguments that need to be backed up

by empirical evidence, or as I called them, practical arguments, and

thus are silent about the question of whether global distributive

justice principles are apt at operating in the field of migration, if

not properly empirically grounded. One can argue against Blake’s

first point, that once we carry on an empirical analysis of how

wealth is produced in the world, even despite the fact of wealth

being produced because of the virtue of institutions (and if

considering historical contingencies, which both authors seem to

agree with), one might find out that a lot of what we own in

flourishing economies, is unjustlyxxxv owned. While to the second

27

point, one can compatibly ensure both rights, the right to develop in

ones society should not exclude the right to develop where one wants.

It is easier for me to move to Silicon Valley if I am a computer

geek, than Silicon Valley moves to my hometown. Furthermore, it is

rather implausible to place a duty on Silicon Valley to move to the

other side of the planet because I happen to be a great computer

geek. Furthermore, to totally dismiss that there should be a way for

computer geeks to work for Sillicon Valley (having people moving

there and being allowed to do so), or that Sillicon Valley should

find some way to attract brilliant minds, seems unjustified and

irrational. The fact that this might not be a response to global

poverty is one such practical argument that needs to be addressed

separately.

To sum up, generally those inclined towards abolishing restrictive

migration policies such as Cole tend to emphasize the importance of

the distributive justice arguments, and generally they look at how

migration helps the individual migrants’ life, their families

(through remittances or better life chances for their children) and

the countries left behind, and subsequently how this per se helps

repairing historical wrongs. Blake, trying to dismiss these arguments

only argues that countries left behind might not become any better

off, which means overlooking that the individual migrants’ life do in

fact. There is no normative justification, not even in brain drain

arguments generally supporting the idea for youngsters remaining at

home, accounting for why they should be impeded to migrate and make

their life and those of their children better off, in the name of

their country left behind. At most they suggest that they could be

28

taxed if they migrate, etc, but not impeded from doing so. Thus, if

Blake thinks that the right to develop in ones’ country is preferable

to the one to migrate (supposedly, better helping the global poor),

those two solutions are not in principle mutually exclusive. In more

ideal circumstances (just, but not perfectly just societies), which

means that she is not forced to move, but she can truly choose between

relevant options, these two rights seem to complement each other,

from a global justice perspective, and in a broader context in which

other values count as well.

Furthermore, Blake’s argument is that employing global

distributive justice principles might bring mixed results under the

conditions of our current world structure, but does not discuss

whether we should have a global distributive justice concern in the

first place; consequently, his doubts about the mixed results of open

borders policy (which would be implemented as a result of the

normatively motivated global justice requirement) could at least in

principle be desirable under the circumstances of our world, if

empirically proved effective. More clarifications that don’t pertain

properly to philosophy are needed in order to decide: first, the

empirical studies are incomplete with regards to which effects we

have from open borders policies, from those arguing for and against

migration being desirable to the end of reaching more global justice;

and second, even if not immediately positive, we need to know whether

there are ways in which those possible negative effects allegedly due

to immigration, affecting receiving and sending states could be in

principle and in practice mitigated. For example, if the state gets

overburdened with migrants arriving in the big cities, whether states

29

should implement programs attempting to incentivize migrants living

in smaller cities, or if the sending states lose their youngsters, if

any taxes migrants pay to the receiving state could be used for

programs allowing either migrants’ return, providing them the choice

to stay abroad or to move back. If mitigating these allegedly

negative factors could be done without major costs by the receiving

state, should we advocate them? We do not know from Blake’s view the

response because he discusses the nonideal circumstances under which

migration takes place. As argued in the previous section, we do not

know straightforwardly how to move between principles, in other

words, in the case in which injustices are identified, how secondary

principles should rectify the situation towards an ideal equilibrium.

As discussed, even when we are lexically demanded to implement

freedom of movement at the level of primary principles, it is too

rushed to assume that it will place the same demand of primary

principles on the level of secondary ones. Practical arguments are

needed in order to settle what secondary principles require as most

desirable solutions, in terms of normative desiderata and empirical

facts.

To conclude, I argued that the practical arguments must come

into the conversation as an entirely different set of studies to

account for the effects migration has on migrants, receiving states

and sending states, in order to supplement the normative arguments

(most likely, but not exclusively, at the level of secondary

principles).

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2.2 Open Borders Theories

In response to these fundamental assumptions on which closed borders

theories rely, Carens challenges in his book The Case for Open Borders,

what I call the ‘liberal-statist’ view on migration that upholds the

legitimacy of closed national borders. According to Carens, borders

should generally be open and people should normally be free to leave

their country of origin and settle in another country, and have the

same rights and obligations as the citizens of the state to which

they have moved.

In criticizing the closed borders view that justifies the

restriction of immigration, Carens considers Western democracies to

be the modern equivalent of feudal privilege—an inherited status that

greatly enhances one’s life chances. Like feudal birthright

privileges, those born in a particular state or to parents who are

citizens of a given state are more entitled to the benefits of

citizenship than those born elsewhere or born of alien parents. Thus,

birthplace and parentage are natural contingencies that are arbitrary

and irrelevant from a moral point of view. Carens extends therefore, a

basic right to freedom of movement from one city to another within

the same country or from one social class to another, to one country

to another. Being born in an African country in today’s society and

being impeded by migration regulations to join a wealthier country is

the equivalent of being destined, in Carens view, by guns pointed at

migrants at the border, to remain in the same social class.

Carens emphasizes the Rawlsian “original position” to justify

his argument in favour of freedom of international movement as a

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basic liberty, even though Rawls explicitly assumes a closed

political system in which questions about immigration could not

arise. Echoing Rawls, Carens argues that people in the original

position would choose two principles: the first principle would

guarantee equal liberty to all, including freedom of movement in the

gamut of fundamental liberties, and the second—the difference principle—

would permit social and economic inequalities as long as they were to

the advantage of the least well off and attached to positions open to

all under fair conditions of equal opportunity. According to Carens,

these principles are satisfied when individuals are free to pursue

the best opportunities wherever they are in the world, regardless of

their place of birth.

Carens’ thesis departs from the premise that the way in which

the world with relatively closed borders as it is nowadays is

fundamentally unjust (injustice and non favourable circumstances-

vast division between the economically advantaged and disadvantaged

peoples, as viewed by Rawls, circumstances of nonideal theory). He

recognizes though, that his proposal is a philosophical work, more

specifically concerned with morality, and that is a nonstarter,

politicallyxxxvi. However, because Carens attributes much of the

present injustices to the heavily bordered world, as a long-term

ideal proposal, he believes that borders, like feudal castes should

fade away in the longer run. In this ideal proposal (in the sense of

how realistic it would be to start transforming it into policy and

implemented politically into a legal right of free movement), in

which economic and political differences between countries would be

significantly reduced, people would be free to move, but not in need

32

to do so (like migrants are today). This ideal model is no different

than the ideal of porous view I explained in section 1. However

before jumping to conclusions regarding the similarities of the two

views, a few more things need to be said about Carens’ view.

Carens claims that being born in a wealthy state is an unjust

privilege, which effects (wealth, health, security, etc. for some) I

am not morally entitled to having and keeping for myself only.

Morality, under the auspices of an ideal of universal equality

demands me to bear the huge costs that come from letting migrants and

refugees within my state. If this will be a conspicuous cost, I

should bear it, even against my interest (or collective interest, as

a state). Some could argue that it is not typical of the moral

psychology of individuals to bear extreme costs for others, say

saving refugees, welcoming economic migrants in need. But Carens

dismisses this as an intuition that we used to have regarding

feudalism or slavery, intuitions supporting unjust practices that

faded away in favour of the vulnerable. When it comes to migration,

Carens argues also that it might be that ‘resisting’ migration (by

not giving migrants proper legal protection, rights, building big

fences on the borders etc) we might in fact bear even greater costs

than welcoming migration. This is an empirical claim, to be evaluated

by social scientists. However, normatively, the point is that we do

not forfeit people’s claim to rights or access to a more just socio-

economic structure, because we don’t want to bear costs. If Carens is

right, states do not have a right to act in their own interest when

regulating immigration, and in principle migrants have incredible

claims to qualify their rights to access and settle elsewhere.

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How about the political? What does the moral right to free movement

entail politically? More specifically, if we accept that freedom of

movement is a basic right, how would it function in regards to other

freedoms we also cherish, e.g. freedom of association, and other

rights, e.g. self-determination?

We now came to a crucial point in need of clarification. As Carens

himself acknowledges there are two conflated questions when we are

asking how should borders be. It is asked who has the authority to

decide what policy should be in place, and on the other, whether the

given policy is morally justified. Of course, the state can make a

wrong decision, that is not acceptable, but it is still entitled to

make this decision or another one. It cannot make any decision (it

cannot discriminate on race, etc) but it can make and enforce the

decision it regards its goals, interest, etc (self determination).

Why does Carens think that the state does not have a general right to

exclude?xxxvii In Ethics of Immigration, he claims that he challenges the

view that “every state has the legal and moral right to exercise

control over admission in pursuit of its own national interest and the

common good of the members”, arguing therefore that borders should be

open and that individuals should be free to leave their country and

settle in some other country (p. 225).

This can be understood in a number of ways.

1) Ideal case: States do not have a general right to regulate

admissions in pursuit of its own national interest. Exclusionary

practices are considered violation of the basic right of freedom

of movement.

2) Nonideal case: States have a general right to regulate

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admissions, but not uniquely in pursuit of its own national

interest. It should choose not to do so, in order to take into

consideration the justice claims of migrants. The question is

therefore not whether the states should regulate migration

(authority), but whether it does it in a way that it is morally

justifiable (justification). Its decision should be taken (a) in

its national interest and other moral requirements (e.g.

equality of opportunity), or (b) should decide to choose to

pursue equality of opportunity before national interest, or (c)

should decide to balance its interests against other competing

interests.

In order to know which version of the two Carens has in mind we

should clarify what kind of right is the right to freedom of

movement. In his discussion, he defines it as a basic right. Both

versions (1) and (2) suffer limitations.

In the ideal case (1), the basic right to freedom of movement is

understood by Carens as other fundamental basic rights such as

freedom of association, conscience, etc. all of which trump the

authority of the state (in the sense that the state doesn’t have a

right to act against their promotion). He argues for the right of

freedom of movement on grounds that it affirms a moral right, more

specifically because it would serve the ideal of equality of

opportunity of all (there is much disagreement on these principles and

their weight, but we assume for the sake of his argument that there

isn’t). However, it is not enough to say that this moral principle

acting in virtue of the ideal of opportunity, will trump the

authority principle and all other goods the authoritatively made

35

decision is upholding. Carens should supplement his thesis with

additional arguments for why this principle ought not to be traded

off by other moral goods.

The nonideal case (2), (more realistic), is compatible with Carens

extensive writings in the sense that he himself claims that the ideal

case of open borders is not a “feasible policy”. However the open

borders view functions as a regulative ideal in policy making, in the

sense that it critiques the current social arangements. It is

important because it asks the fundamental questions about the justice

or injustice incorporated into our current social arrangements,

comparatively to how questions about feudalism and slavery were

regulating these practices, until their complete moral condemnation

and political abolishment. His extensive writing is therefore

operating on a more “regulative” level than at the basic of

fundamental principles. In his latest article (Carens, 2014) he is

asking what are the ethical issues raised by immigration,

presupposing since the beginning of the paper a commitment to

democratic principles (and the state’s authority to decide on

immigration policy- which, recall is denied in his ideal open border

proposal). From these presuppositions, among others, he moves on to

analysing how “states themselves are expected to (and often do) limit

their own actions and policies in accordance with human rights norms

that they recognize and respect” (Carens, 2014, p. 540).

This second position, I argue, is a view in which justified

states decisions in matters of immigration are compatible with the

view of states having a general right to decide on immigration. What

the state does not have the right to do, according to this view is to

36

pursue its national interest at ‘full’ depletion of other values,

rights, that also matters. It seems that the ideal has the primary

task of minimizing those instances in which the state would harm

others in pursuing its interest, and that the justification for this

‘minimization’ is often provided by the very core values that the

state has, e.g. commitment to basic human rights, democratic values,

etc., and not a cosmopolitan challenge to state’s control over

admissions (Carens, 2014).

Carens’ argument goes as follows: ‘Open borders’ is an ideal

case. The ideal case is not translatable into policy-making, or in

other words, open borders thesis is not a policy recommendation, but

it plays the role of a regulatory ideal. I concluded against his view,

presupposing lexical order between primary and secondary principles,

and at least some form of consistency between ideal and nonideal

theorizing, that (1) a regulatory ideal might produce secondary

principles that act contrary to the primary principles we subscribe to

ideally, because of (2); and (2) that in order to pass from

principles (both, first and second order ones) to policy making, we

need more empirical knowledge of implications of immigration on the

life of migrants, receiving and sending states, that I called

practical. Only when we take the latter into consideration will we be

able to say something meaningful about policy making and how this

reflects particular principles (whether primary or secondary).

Sometimes policies (reflecting secondary principles) might appear to

be enacted contrarily to the primary principles (to be reminded that

even if the ideal case would require open borders, I argued that the

nonideal case, even if it appears perverse, could require non-open

37

borders if, e.g. presumably practical knowledge and regulatory

principles stands for some other more feasible and desirable solution

to deal with present injustice).

Concluding Reflections

Philosophers have only recently entered the field of migration

generally interrogating whether states borders should be open or

closed, or otherwise. Whilst one of the most common criticism to

philosophers concerned with migration is generally that they operate

on idealized assumptions and that their ideal cases provide no

realistic guidance regarding problems on the ground, e.g. policy-

making, effects of immigration, etc.; in this chapter I tried to

create a conceptual map mirroring the work philosophers do, in a way

that it can inform non philosophers about how philosophers proceed in

the normative realm. Specifically, in section one (1) I attempted to

provide a conceptual map of some of the ‘tools’ philosophers use at

the various levels of operation: ideal theory (primary principles),

nonideal theory (secondary principles), and other considerations,

some of which are moral, some of which are practical. I concluded that

accepting a lexical priority amongst principles could mean sometimes

that the secondary principles act in opposition to the primary ones.

I have also argued that this would not be an exception, if the

practical knowledge informs us that ‘best’ solutions (in terms of

justice, legitimacy, democracy, and other values we cherish) should

operate contrarily to primary principles. Practical knowledge should be

in this view a separate field of study, closely operating with

38

normative theory: the latter should not be used as sporadic

illustrations, as philosophers often do at the expense of producing

partially informed theories (thus non valid, or ‘unrealistic’ and

having not much in common with the human world we live in), but it

should also not operate independently from normative theory.

Normative theorising could refute taking into account facts

about the world, but this at the cost of being uninformative to other

disciplines in the field of migration and if it aimed not to

designing advice for immigration policies (which most theorists do).

Immigration policies are ‘real’ practices and they cannot be

evaluated only theoretically; they can be evaluated theoretically,

but not in obliviousness of their ‘real’ effects on migrants,

receiving and sending states. Thus it is necessary considering a

great deal of practical knowledge.

The distinction between theoretical and practical exclusion that

states enact illustrates that closed border theorists tend to justify

restrictions on arguments that necessarily entail empirical

knowledge, e.g. more Chinese immigration to Mozambique could reduce

the latter to dysfunctionality. However, open borders theorists tend

to emphasize other arguments, such as distributive justice arguments

and/or (not always in combination with) the responsibility owed to

others, historically (e.g. colonialism) and otherwise. These

arguments should be settled empirically as well as normatively, and

when connecting these results with actual policy making, we are in

the realm of practical knowledge.

On the background of these methodological remarks, the current

literature in migration seems to be evaluated from: ideal, nonideal,

39

and practical perspectives. Laura Valentini said it with a better

wording than mine: “there is no right answer to the question of

whether a normative political theory should be ideal or nonideal

(meaning more or less realistic). What types of idealization are

appropriate, and what facts ought to be taken into account in the

design of normative principles depends on the particular question the

theory is meant to answer” (Valentini, 2012, p. 662).

My first suggestion is that we ought to know the level on which a

theory is operating and for which purpose is adding facts into the

normative theorising, because the choice of those facts differently

complement a given normative desiderata (based on aims). Second, I

suggested that migration is such a social phenomenon depending on

socio-economic patterns (‘push’ and ‘pull’ effects), on world

historical processes or contingencies and on how the wealth is

produced and distributed in the current world, how climate change

affects the planet, including those who don’t benefit from the

production in consumption terms, etc. Because of it, I proposed the

view that migration per se is not a problem that upsets the system of

states (as it is often conceptualized in real politics and academic

discourse), but it is part of the system of semi-closed (or porous)

communities, just like states are amongst the existing entities in

the constellation of political concepts and facts out there. What is

problematic about migration is the way migration is taking place. Due

to the earlier mentioned contingencies, contemporary migration is

overwhelmingly need-driven, as opposed to choice-driven. This fact in

combination with the response of current Western states to migration

(by building fences and fortifying anti-immigration policies as well

40

as politicising migration via anti-immigration discourse) is the

problem one needs to continue investigating and find solutions for.

41

i I take transnational migration as “Transnational migrations, pertain to the rights of individuals, not insofar as they are considered members of concrete bounded community but insofar as they are human beings simpliciter, when they come into contact with, seek entry into, or want to become members of territorial bounded communities” (Benhabib 2004,10). Leaving outtourists, I usually refer to economic migrants. Nevertheless, a broader definition might include low-skilled labour migration, high-skill labour migration, irregular migration, human trafficking and smuggling, asylum andrefugee protection and diaspora. In short, I call them would-be migrants, and more shortly migrants. ii Referring at states “posting guards at the borders” is most notably knownfrom Joseph Carens’ extensive writing on ethics of immigration.iii Distinction made in Rawls’ most important book A Theory of Justice. iv It is understood in the Rawlsian language that principles can and should exist in an order of importance, or lexical order. Regulatory ones, or secondary principles are to be derived from the more fundamental ones (or primary principles. The primary principles regulate a society that is just,and secondary principles apply when injustice is detected. v We will have to wait until the ‘idealized cases’ I will analyze in order to grasp the argument for why migration, as a social phenomenon pertains tothe basic structure in our ideal view. vi Nancy Fraser (Fraser 2009) addresses the issues of what and how of justicein drawing a connection between justice and democracy. Benhabib draws upon Nancy Frazer in concluding that politics need be framed in such a manner that there are insiders and outsiders with respect to a given bounded polity. However, like Frazer, she refuses the line of reasoning proposed byclosed border theories, which, by taking as a given “fixed” democratic polity, prematurely forecloses the search for other frames, which might be more just and inclusive of others, yet still generate new exclusions. Envisioning an ongoing process of critique, reframing, critique that democratically addresses claims for further reframing inevitably demands transnational regulatory institutions to support the process of framing. These are needed because although the closed polity remains the main decision-maker on transnational migration policy, it results inadequate in dealing with transnational issues on its own. vii For an opposite view, that is that justice does not need an ideal ahead,is advanced by Amartya Sen (2006 and 2009), but for a brief summary of Sen’s argument in Valentini 2012, p. 659-662.viii Ideal vs. Non-Ideal Theory: A conceptual Map, Laura Valentini distinguishes in page one among three different ways in which ideal and non-ideal can be understood: 1) full compliance versus partial compliance, 2) utopian versus realistic, 3) end state theory and transitional theory.ix There is much controversy on what constitutes a decent level. For the sake of the argument we assume there is a widespread agreement on being

constituted by some basics freedoms, subsistence (food and health) and someminimum prospects for a good life, as well as relevant set of choices/options in life.x Is compatible in some relevant sense with John Rawls or David Miller, Michael Walzer’ views.xi Morality imposes various constraints on having to repair the wrongs inflicted on others, as well as other values, such as freedom of association, entailing for example that a migrant has the right to associate with a partner from another country and move there. Her migrating in such case is not justified by any historical wrong, but by other values we cherish. xii Is compatible with Joseph Carens’ view.xiii Some empirical studies would debate the claim that freedom of movement across borders is the solution to the global poor because they would claim that in fact those poorest, or the so called ‘the button billion” do not infact have the means to migrate, but they are the ones left behind, even in a more disadvantaged position perhaps if countries suffer ‘brain drain’. I will not clarify whether this is the case empirically, and whether there can be policies to remedy to it. I take for granted that migration would help at least some better accomplish their life and ask whether the principle of free movement should be a principle.xiv The term ‘negotiation’ which supposedly takes place between the would-bemigrant and the state is obscure, in the sense that it can take many interpretations. However, one such example of negotiation is offered in a ‘pure’ case described by Sangiovanni, in which we clearly see that states are the kind of meta-associations that cannot ignore or dismiss migrants’ reasons, goals, interests. We cannot assume that states have the pro tanto right to exclude, if this will override other competing considerations, which we might be inclined to cherish equally or more. More specifically ifthe state grounds exclusion of others on the basis of his right of freedom of association (and therefore not to associate if it wishes so), this freedom must be evaluated in a larger context in of other freedoms or significant values, which we also cherish. In other words such freedom is not ‘absolute’: in the civil society it does not take precedence over all other values, interests and goals. If the states ground his right in the moral significance of the relationship citizens share with each other and not with others, (Sangiovanni 2014, p. 207), even then there are grounds ofnegotiation between sets of reasons and goals. xv “North Korea imposes very strict migration controls on the entries and exits of foreigners and of its citizens. Despite being a signatory to the International Covenant on Civil and Political Rights since 1981, North Korea does not uphold Article 12(2) of the law, which states, "Everyone shall be free to leave any country, including his own." Instead, North Korea has long regarded unauthorized departure as an act of treason.

Individuals who are caught emigrating or helping others to cross the borderillegally are detained in political penal-labor colonies, known as kwan-li-so...” in migrationpolicy.org/article

xvi The idea of pursuing our goals to trade and exchange with others, including moving to other places, when this is a required condition to achieve these goals is best conceptualized in the Kantian idea of ‘universal right of hospitality’. A full description of this right is articulated in Sangiovanni (2014) and Benhabib (2004).xvii The term “universal” is understood as the Kantian cosmopolitanism, whichcan be viewed in Seyla Benhabib 2004, Sangiovanni 2014.

xviii The “veil of ignorance” is a ‘test’ or a ‘thought experiment’ Rawls uses to identify the fundamental (primary) principles we would choose to live by. It is the central argument in his major work A Theory of Justice. The term is implied thorough the text in this way. xix A more detailed description is given in the open borders view section.xx One recent work by Jorg Schaub “The incompleteness of Ideal Theory” argues that secondary principles, understood as principles meant to rectifynoncompliance with the primary ones should be constitutive part of a complete ideal theory, regulating by definition a perfectly just society. Vice versa, he provides no argument, but agreed that it could be argued that primary principles could be among the secondary ones when it comes about regulating a less than perfectly just society. These set of argumentsjustify Caren’s strategy. xxi A reviewer of my draft, Adam Dunn, has pointed out that moral psychologyis compatible with the choice of some people to give up on their freedom asa tradeoff of having wealth, etc. Call it a golden cage case. For example, consider someone marrying a person for his or her wealth, and not based on his or her genuine sentiments, she or he ‘locks’ oneself into a contract inorder to live a comfortable life. To be noticed that my argument portrays aperson locked up against her will, whereas in the example of marriage we have good reasons to believe that the subjects has voluntarily entered the contract after evaluating this and other options. Secondly, if the reader is asking whether she was forced into this option because she didn’t have other relevant options, it can be argued that this makes my case even stronger insofar as this would be an unjust situation to be dealt with in nonideal theory. In fact, my view is that present injustice placing some individuals in the condition to being forced into a marriage (or to flee countries), rather than genuinely choosing it, triggers justice-based claimon the side of this individual to having relevant options in life (section 2 will better explain this argument). xxii “Forced” is used after the commonsensical understanding that when one does not have relevant options, one sticks with what founds as the only

option. If this option is not decent, he or she will be forced out of this option, or more properly, forced out of the presumable range of options he should have had (in his case rather scarce). xxiii See Rawls, Theory of Justice.xxiv This assumption is often made. Andres Moles particularly stressed the point that it might be contradictory that a basic right would not be even more demanding when on favorable circumstances.xxv This is to be checked empirically. Some people like Thomas Christiano would claim that states could accommodate up to 50% more immigration added to the existing demographics, some would claim that far smaller percentagesare possible without other losses (culture, social welfare, etc). This point is debatable empirically, and normatively in terms of which other values we cherish and count in the moral balancing of values, etc. xxvi The reader should recall that “the extreme positions” are positioned on the axis between I and III, which makes them plausible accounts. xxvii I am paraphrasing from Joseph Carens’ work. To illustrate the idea consider the example provided by David Miller in “Border Regime and Human Rights”, p.8: “ Your human right to food could at most impose on me an obligation to provide adequate food in the form that is most convenient to me (costs me the least labor to produce, for example), not an obligation toprovide food in the form that you happen to prefer”. Miller’s point is too harsh. I remind the reader Oberman’s example according to which, what a state gives has to at least partially match what the migrant needs. xxviii (Carens 1987), Carens’ view of closed borders is rather strong. Other philosophers, e.g. Walzer (1984, 41) accepts that state have a moral obligations to admit family members of current citizens, refugees and displaced ethnic nationals. To whom is the justification owed? To the foreign family member or to the current citizen?xxix I distinguish between two closed borders theories, (1) strong- Westphalian, and (2) moderate- liberal understanding of sovereignty; and take the (2) as valid. Reading (1) regards cross-border issue as a “privatematter”, whilst (2) views states to be increasingly interdependent as they observe common principles, such as international human rights regimes; moreover, view (2) postulates that sovereignty is no longer the ultimate and arbitrary authority, rather the respect to self-determination is fulfilled when domestic principles are anchored in institutions shared withother states. Reading (2) is plausible and incorporated in both moderate closed and porous borders theories, as both theories support the idea that the right to admit migrants within a polity is the prerogative of the sovereign in the described sense by (2). Disputes between the two sets of theories regard the rights that would-be migrants ought to have to condition the terms and conditions of sovereign’s decision.xxx Among the most widely discussed, we have C. H. Wellman’s freedom of association account, David Miller’s liberal-nationalist account, and many

more.xxxi ‘Political say’ can be understood as a right to vote on the policy that affect their life as well. On this point discussion between Miller (2010) and Abizadeh (2010) is the most current and relevant one. xxxii Michael Blake delivers one such argument in The right to exclude, (2014). Blake argues for the right to exclude be grounded not in that bounded communities only can provide some important goods (i.e. social justice, security, etc.), which in his view is wrong to advance a rights of states to exclude on such basis. He advances instead a right to exclude on groundsmore directly related to the jurisdictional nature of the modern state. In principle, there is no obligation for some state to take charge to protect some non-citizen’s human rights, unless independent moral reasons could oblige the state to doing so. He agrees that in principle this is the basisfor exclusion of foreigners, but the way such right is used by current states employs with this right of exclusion is rather harsh, perhaps because they do not take into considerations al moral reasons demanding this right be non operative. This means that even if we accept these arguments in ideal terms, we are open to discuss it within a context of non-ideal circumstances, and decide, after taking seriously ‘all’ moral considerations at stake on the validity of this right to exclude. xxxiii Philip Cole, Beyond Reason: the Philosophy of Immigration (2014)xxxiv According to Benhabib the wealth that the Western part of the world hasaccumulated was not an independent growth, but made in relation with others, and often at the detriment of others (Benhabib 2004). xxxv It is plausible, given that no economy functions independently of other ones, that in the trading patterns there are dynamics of power, exploitation, etc from some powerful countries towards others and that in fact, the way we manage to lower the price of the oil or other goods we purchase has to see a lot more with power dynamics than fair trading relationships.xxxvi In a recent interview for the New York Times (2014), Carens claims thatif a politician would try to propose open borders policies, he would loose his job in now time.xxxvii See Joseph Carens, The Ethics of Immigration (Oxford: Oxford University Press, 2013), chap 11.

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Abstract

When it comes to the issue of transnational migration and its

normative demands on states’ borders, some theorists advocate a world

of open borders, while others support the full sovereignty of states

in matters of immigration. While each position offers important

insights to the debate, my interest starts with acknowledging that a

plausible justification for the fully fledged right of states to

exclude, as well as a more nuanced reflection on how morality imposes

limits on this right, are still needed. This chapter seeks to address

the question of whether, and to which extent, border policy can be

unilaterally set by states and on what normative grounds (compatible

with liberal and democratic theories) migrants can be denied entry to

countries and have their rights restricted in today’s world. Far from

proposing a concrete response to this complex question, I bring forth

an overview of the most recent arguments and propose ways in which

the framework can be best conceptualized, as well as gaps which left

unfilled will not allow a correct assessment of the issue of

migration. This chapter clarifies some of the methodological tools

theorists have at their disposal when addressing complex issues in

the migration field (principles designed within ideal theory,

nonideal theory and practical considerations, and which serve

different aims). These are distinct levels of analysis that need to

operate together. However, keeping them distinct is useful in order

to be aware of how these levels are used to talk at cross-purposes,

and furthermore to properly use the practical knowledge, often

integrated into the normative desiderata. I propose the view that

migration per se is not the problem that ‘upsets’ the system of states

(as it is often conceptualized in real politics and academic discourse),

but it is part of the system of semi-closed (or porous) communities,

just like states are amongst the existing entities in the

constellation of political concepts and facts out there. What is

dysfunctional and problematic about migration is the way migration is

taking place, namely it is overwhelmingly need-driven, as opposed to

choice-driven. This fact, in combination with the response of current

Western states to migration (by building fences and fortifying anti-

immigration policies as well as politicising migration via anti-

immigration discourse) is the problem one needs to continue

investigating and find solutions for.