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MIGRATION AND DISTRIBUTIVE JUSTICE: A POLITICAL ECONOMY APPROACH
Olivier Sirello
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Migration has never been a new phenomenon in human history. However, restrictions on
immigration are relatively new since they are linked to the birth of modern States and their claim to
exclude foreigners from their borders. 1 But, for millions of people migration represents the
opportunity to escape inequality and poverty. Before anything else, immigration raises important
moral issues involving questions like freedom of movement, of association and global inequality.
This paper will try to shed some light on a highly polarized debate on immigration with the
particular focus on the question of whether states have moral justifications to deny entry to needy
immigrants. Said differently, it will assess the moral grounds – if any - upon which a state can
legitimately claim a right to exclude. In this paper, my argument will be that states have no moral
justifications to exclude needy immigrants.2
Before presenting my claim, I need to make some preliminary considerations. First, this
paper will define “needy” immigrants as individuals living in poverty and moving from their place of
birth to another country in order to build a decent life for themselves and their families.3 I will treat
“political refugees” and “brain drain immigrants” as a separate case. The second clarification has to
do with another important normative assumption. My claim is that we have no reasons to deny the
impact of the arbitrariness of the country of birth on an individual’s life chances. In line with some
cosmopolitan egalitarians,4 I will assume the fundamental moral equality of human beings and
1 Chandran Kukathas, “The Case for Open Immigration”, in Andrew I. Cohen and Christopher Heath Wellman (eds.), Contemporary Debates in Applied Ethics, Malden (MA): Blackwell Publishing 2005, pp. 207-220. 2 I will essentially follow the cosmopolitan egalitarian claim defended by Joseph H. Carens, “Aliens and Citizens: The Case for Open Borders”, The Review of Politics, Vol. 49, No. 2, Spring 1987, pp. 263-264 and Shelley Wilcox, “The Open Borders Debate on Immigration,” Philosophy Compass, No. 4-1, 2009, p. 1 3 “Immigrant” in this paper means “needy immigrant” unless differently specified. I borrow the essential part of the definition from Joseph H. Carens, “Aliens and Citizens: The Case for Open Borders”, The Review of Politics, Vol. 49, No. 2, Spring 1987, pp. 263-264. However, I will consider the main reason for migrants to move as to escape poverty and destitution from their country of origin: please refer to Lea Ypi, “Justice in Migration: A Closed Borders Utopia?” The Journal of Political Philosophy, Vol. 16, No. 4, 2008, pp. 391-418. 4 I do acknowledge that the question of open borders and distributive justice make no consensus even among cosmopolitan egalitarians (see Christiano, 2008). To be clear, I will essentially espouse Carens’ argument to defend freedom of movement (Carens, 1987), Caney’s to shield global equality and cosmopolitan justice from critiques (Caney, 2001) and finally Seglow (2005) and Wilcox (2007 and 2009) to defend the validity of my cosmopolitan claim for open borders. Referring to “cosmopolitan egalitarianism” would essentially mean drawing on Carens’ freedom of movement, Caney’s global opportunity, and Seglow’s and Wilcox’s claim for distributive justice through open borders. I do not, however, espouse the so-called “Indirect Cosmopolitanism” (as defended by Thomas Christiano, “Immigration, Political Community and Cosmopolitanism,” San Diego Law Review, No. 45, 2008, pp. 933–961).
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consider that immigration controls necessarily involve at a certain point some considerations of
global equality of opportunity as principle of distributive justice.5
The paper will be articulated in three main sections. First, I will argue for a presumptive case
in favor of free immigration based on some cosmopolitan egalitarian arguments for open borders. In
the second section, I will turn to three main arguments for closed borders and I will analytically
show their inconstancies with the help of the cosmopolitan egalitarian claim but also including
arguments for open borders such as libertarian, utilitarian, and democratic. Lastly, before
concluding, I will raise some exceptions for both cases of restriction of freedom of movement and
association, including public order threats from immigrations, brain drain phenomenon and asylum
seekers.
I
A presumptive case for open borders
The defense for open borders can be based on two analytically distinct assumptions. First,
cosmopolitan egalitarians would argue that given the impact of the arbitrariness of the country of
origin and global equality of opportunity, “access to social positions should be determined by
individual’s actual skills, not by arbitrary native characteristics” such as nationality or the place of
birth.6 If to be born in a worse off country is morally arbitrary, global inequality of opportunity is
5 I take this point from Jonathan Seglow, “The Ethics of Immigration,” Political Studies Review, Vol. 3, 2005, pp. 317-334 and Simon Caney, “Cosmopolitan Justice and Equalizing Opportunities,” Metaphilosophy, Vol. 32, Nos. ½, January 2001, p. 117. Two additional remarks: first, the point of equality becomes even more compelling when some individuals are suffering in objectively horrible circumstances. In this situation, I make the case that one has a natural duty to assist others when they are sufficiently at risk and that those helping will not incur in unreasonable costs for helping, the idea being that affluent societies are obligated to alleviate severe poverty no matter their nationality or geographical location (please refer to Peter Singer, “Famine, Affluence, and Morality, Philosophy and Public Affairs, Vol. 1, No. 3, Spring 1972, pp. 229-243). Second, I will secure from critiques what Kukathas labels as “principle of Humanity”, meaning that if immigration proves to make the poor relatively better-off without making anyone else worse-off, then no reasons for closing borders hat would make her comparatively worse-off may be accepted in lieu of (please see Chandran Kukathas, “The Case for Open Immigration”, in Andrew I. Cohen and Christopher Heath Wellman (eds.), Contemporary Debates in Applied Ethics, Malden (MA): Blackwell Publishing 2005, pp. 207-220). 6 This point is made by Carens in Chris Armstrong, Global Distributive Justice: An Introduction, Cambridge: Cambridge University Press, 2012, p. 229. More particularly, Carens argues, “Citizenship in the modern world is a lot like feudal status in the medieval world. It is assigned at birth; for the most
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unjust.7 Second, one might go further claiming that open borders make the case for duty of
distributive justice, since allowing individual to move freely between states would be a way to rectify
to this inequality.8 Assuming international free movement as basic right9 as well as presupposing
moral equality and equal opportunity among individuals, cosmopolitan egalitarians agree that states
have a duty to open their borders and are morally unjustified to exclude needy immigrants.10
Those who oppose this standpoint express three different concerns. First, one might object
that “luck equality matters, but it matters considerably less than relational equality.”11 The idea is that
we need to concerned about inequality when it engenders relationships of oppression.12 Thus, one
might argue “the lack of a robust relationship between the constituents of a wealthy state and the
citizens of a poorer country does not generate sufficient moral reasons to obligate the wealthy state
to open its borders.”13 Although it is possible to concede that relational may matter more than luck
equality, this critique is weak: the lack of relationships between better-off and worse-off is simply
not true, since one might reasonably contend that given the increased interdependence between
part it is not subject to change by the individual’s will and efforts; and it has a major impact upon that person’s life chances. Limiting entry to countries like Canada is a way of protecting a birthright privilege” in Joseph Carens, Ibidem, p. 252. 7 This argument is made by Carens drawing on Rawls’ cosmopolitanism. In the original position, social positions should be allocated according to individual capacities not morally arbitrary characteristics. If not, Rawls would argue that this is unjust. Because Carens makes the case that citizenship is one morally arbitrary characteristic, inequality due to citizenship would unjust. Please refer to Joseph Carens Ibidem, pp. 255-256. Also, on the question of inequality of opportunity and injustice, please refer to Simon Caney, “Cosmopolitan Justice and Equalizing Opportunities,” Metaphilosophy, Vol. 32, Nos. ½, January 2001, p. 115. 8 Or, at least, increasing the flows of immigrants. I do acknowledge that some cosmopolitan egalitarians would not support this claim (see Christiano, 2008). In this paper, this is the argument will be based on Shelley Wilcox in “The Open Borders Debate on Immigration,” Philosophy Compass, No. 4-1, 2009, p. 1 and “Immigrant Admissions and Global Relations of Harm,” Journal of Social Philosophy, No. 38.2, 2007, pp. 274-291. A similar claim is made by Frederick Whelan, “ ‘Citizenship and Freedom of Movement: An Open Admission Policy?’ Open Borders? Closed Societies?” Ed. Mark Gibney, New York (NY): Greenwood Press, 1992, pp. 3–39. To note, that this argument matches the initial assumption of “duty to mitigate global poverty for the most affluent societies” that I have made at the beginning. 9 Carens, for instance, defends freedom of movement as “basic human right to free international movement” making also the case that “as long as free internal mobility within national borders is justified, then so should it be internationally”. For Carens, “freedom of movement is the first and the most important human’s liberty”. Please refer to Joseph Carens, “Migration and Morality: A Liberal Egalitarian Perspective,” Free Movement: Ethical Issues in the Transnational Migration of People and of Money, Brian Barry and Robert E. Goodin (Eds.), University Park, PA: The Pennsylvania State Press, 1992, pp. 25-47. 10 Some exceptions for this argument arise in special circumstances, for instance when states have a legitimate interest to close their borders when immigration may cause more harm then benefit (see brain drain) or when it may be “reasonably” expected to threat national public order. I will treat these separate cases in the last section of the paper. For more details on the egalitarian standpoint, please refer to Joseph H. Carens, “Aliens and Citizens: The Case for Open Borders”, The Review of Politics, Vol. 49, No. 2, Spring 1987, pp. 263-264 and Shelley Wilcox, “The Open Borders Debate on Immigration,” Philosophy Compass, No. 4-1, 2009, pp. 1-9. 11 Christopher Heath Wellman, “Immigration and Freedom of Association”, Ethics, Vol. 119, No. 1, October 2008, p. 122. 12 Elizabeth Anderson, “What’s the point of Equality?” Ethics, Vol. 109, No. 2, January 1999, p. 312. In particular: “Inequality referred not so much to distributions of goods as to relations between superior and inferior persons. Those of superior rank were thought entitled to inflict violence on inferiors, to exclude or segregate them from social life, to treat them with contempt, to force them to obey, work without reciprocation, and abandon their own cultures. These are […] the faces of oppression: marginalization, status hierarchy, domination, exploitation, and cultural imperialism” (p. 312). 13 Christopher Heath Wellman, “Immigration and Freedom of Association”, Ethics, Vol. 119, No. 1, October 2008, p. 123.
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countries by means of globalization, the contacts between poor and wealthy country are very
significant.14
Second, one might argue against open borders that the initial assumption of global equality
of opportunity is impossible since social justice may be understood only at the domestic level for
two reasons, (1) justice requires a common understanding of the good15 and (2) enforcement of
justice cannot be done at the global level.16 Again, these two claims are vulnerable: regarding the
first, not only “the general concept of membership is pretty much shared, as it surely must be if one
wants to advance a view of justice that obtains within a bounded political community of which only
some people are members.”17 But also, referring to global inequality of opportunity and poverty,
Caney defends the idea of measurable “standard of living” and that the special role of citizenship is
unpersuasive with regard to global justice.18 Finally, concerning the enforcement of global justice, the
creation of global institutions may challenge this argument.19
The third main critique has to do with the idea that “freedom of association has nothing to
do with duties distributive justice”20 because free immigration may be ineffective to solve the
problem of inequality and poverty.21 While it is possible to concede that immigration is not the most
14 This point is made by Charles Beitz in “Does Global Inequality Matter?” Metaphilosophy, Vol. 32, Nos. ½, 2001, p. 115. Also, Veit Bader seems to suggest an analogous approach adding also the question of moral responsibility: “The rich and the poor live in a global economic and political order with one system of common institutions for which we are morally responsible.” in Veit Bader, “The Ethics of Immigration,” Constellations, Vol. 12, No. 3, September 2005, p. 343. 15 Miller argues: “What happens if we try to carry this [equality of opportunity] across to the global level? We run into serious difficulties created by the fact that we can no longer rely upon a common set of cultural understandings to tell us which metric or metrics it is appropriate to use when attempting to draw cross-national opportunity comparisons” in David Miller, “Against Global Egalitarianism,” The Journal of Ethics, Vol. 9, No. ½, Current Debates in Global Justice, 2005, p. 62. This point is also made by Bernard Boxill who discusses the implications of cultural diversity for global equality of opportunity (please refer to Bernard Boxill, “Global Equality of Opportunity and National Integrity,” Social Philosophy and Policy, Vol. 5, 1987, pp. 143-168). The same point is criticized by Simon Caney, “Cosmopolitan Justice and Equalizing Opportunities,” Metaphilosophy, Vol. 32, Nos. 1-2, January 2001, p. 120. Also, please refer to Michael Walzer, Spheres of Justice, New York (NY): Basic Books, 1983; also, David Miller, “Immigration: The Case for Limits”, in Andrew I. Cohen and Christopher Heath Wellman (eds.), Contemporary Debates in Applied Ethics, Malden (MA): Blackwell Publishing 2005, pp. 193-206. 16 Michael Walzer in Jonathan Seglow, “The Ethics of Immigration,” Political Studies Review, Vol. 3, 2005, p. 320. 17 Jonathan Seglow, “The Ethics of Immigration,” Political Studies Review, Vol. 3, 2005, p. 320. 18 Simon Caney defends this measure of global inequality of opportunity in “Cosmopolitan Justice and Equalizing Opportunities,” Metaphilosophy, Vol. 32, Nos. ½, January 2001, p. 120-126. 19 Simon Caney, “Cosmopolitan Justice and Institutional Design: An Egalitarian Liberal Conception of Global Governance, “ Social Theory and Practice, Vol. 32, No. 4, October 2006, pp. 725-756. 20 Christopher Heath Wellman, “Immigration and Freedom of Association”, Ethics, Vol. 119, No. 1, October 2008, p. 126. 21 This is the claim of indirect cosmopolitans who argue that liberal democratic states should build international institutions which are mostly likely to put the world’s poor in a better position to live minimally decent lives rather than just opening their borders (see Thomas Christiano, “Immigration, Political Community and Cosmopolitanism,” San Diego Law Review, No. 45, 2008, pp. 933–961). A very harsh critique against this argument is made by Oberman, claiming that “human beings are entitled to a basic human right to stay in their home country and therefore duties of distributive justice cannot be fulfilled through immigration: see Kieran Oberman, “Immigration, Global Poverty and the Right to Stay,” Political Studies, Vol. 59, 2011, pp.
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effective remedy to reduce global inequality, one might answer that (1) this does not invalidate the
moral22 validity of the initial argument according to which “admitting more immigrants is required by
justice”23 since it is fundamentally unfair that one’s life’s chances are affected by her random place of
birth.24 One may also reinforce this claim arguing that (2) until there is no effective just global
system to redistribute, immigration may be a consistent way - even though less effective – to tackle
global inequality and poverty.25
Overall, the cosmopolitan egalitarian case for open borders handles its potential critiques in a
very coherent and strong way while defending both freedom of movement as basic liberal egalitarian
value and the idea that immigration may be a partial response to global injustices and inequality of
opportunity.26
II
The Case for Closed Borders
This defense for open borders, although valid and coherent, depicts a portrait of world
politics far from reality. Nowadays, it is conventionally accepted that states have a right to exclude
253-268. Also, other claims are that sending aid abroad is more effective than opening borders, also because human beings do not like moving (see Andrew Altman and Christopher Heath Wellman, A Liberal Theory of International Justice, Oxford: Oxford University Press, 2009). Another reason is that the number of needy immigrants is far more important than what actually wealthy states could afford to admit (see Thomas Pogge, “Migration and poverty: Normative Issues,” in Citizenship and Exclusion, V. Bader (ed.), Basingstoke: Macmillan, 2005 pp. 12-27). Lastly, please refer also to David Miller, “Immigration: The Case for Limits”, in Andrew I. Cohen and Christopher Heath Wellman (eds.), Contemporary Debates in Applied Ethics, Malden (MA): Blackwell Publishing 2005, pp. 193-206). Others, such as Kymlicka, suggest that denying entry to migrants is justifiable as long as these states have paid a “global resource tax” to transfer part of their wealth to worse-off countries: see Will Kymlicka, “Territorial boundaries: a liberal egalitarian perspective”, in D. Miller and S. Hasmi (eds.), Boundaries and Justice: Diverse Ethical Perspectives, Princeton (NJ): Princeton University Press, 2001, pp. 249-275. 22 On the link between poverty or global inequality and open borders (which can be remedial, causal, or moral), I borrow Veit’s distinction in Veit Bader, “The Ethics of Immigration,” Constellations, Vol. 12, No. 3, September 2005, p. 342. 23Goodin provides an excellent summary of this claim: “The aim is to argue that, if arguments for international distributive justice are valid and if rich countries do not want to give generously of their money to meet the demands that those arguments impose, then they are morally obliged […] to admit substantial numbers of immigrants from the poorest countries.” in Robert E. Goodin, “If People Were Money…,” in Free Movement: Ethical Issues in the Transnational Migration of People and of Money, Brian Barry and Robert E. Goodin (eds.), University Park: Pennsylvania State University Press, 1992, p. 8ff. 24 See Chris Armstrong, Global Distributive Justice: An Introduction, Cambridge: Cambridge University Press, 2012, p. 232. 25 This is claim (defended by Jonathan Seglow, “The Ethics of Immigration,” Political Studies Review, Vol. 3, 2005, pp. 317-334) is based on the actual state of world politics, where no consistent system of transfer or global institution is enough effective to tackle the problem of poverty and profound inequality between the better-off and the worse-off. The proof is that migrants fleeing poverty are a great number in world migrations (Veit claims indeed: “Poverty is only one of the many motivational causes of migration. […] Nevertheless, poverty is […] the most important structural cause of forced migration.” in “The Ethics of Immigration,” Constellations, Vol. 12, No. 3, September 2005, p. 341). 26 Shelley Wilcox, “The Open Borders Debate on Immigration,” Philosophy Compass, No. 4-1, 2009, p. 1.
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needy immigrants grounded on several moral justifications. Among them, I will present and critique
three main common reasons for states’ to exclude immigrations, such as preserving national culture
(Miller), states’ right to self-determination and special national obligations (Walzer), and freedom of
association and exclusion (Wellman).
The first reason to restrict immigration is grounded on the idea that immigration will change
and undermine a society’s identity.27 States restrict immigration because they claim a right to
preserve their national identity from outsiders. As David Miller puts it, “the public culture of [a]
country is something that [its citizens] have an interest in controlling: they want to be able to shape
their nation, including the values [and] culture.”28 Accepting immigration in a country means that
potentially “immigrants will increase the incentive among citizens to defect from preserving their
national identity.”29 And, the more culturally diverse is a country, the higher threat to “social
cohesion.”30 Conversely, relatively closed states may serve as to avoid “the erosion of the necessary
conditions for the economics and/or political arrangements to effectively function.” 31 Miller
supports closed borders, for instance, to curb global population growth, an unpopular measure that
only sovereign states would take if they advert the risk to internalize the costs from an unlimited
population growth.32 Over the long-term, thus, it may be more efficient – also economically - to
allow states to be self-determining and restrict immigrations.
Several questions arise from this argument. First, on practical matters, it seems difficult to
measure a change in national identity caused only by immigration. Culture and national identities
27 This argument is made by John Casey in “One nation: the politics of race,” Salisbury Review, Vol. 1, 1982, pp. 23-28 in Chandran Kukathas, “The Case for Open Immigration”, in Andrew I. Cohen and Christopher Heath Wellman (eds.), Contemporary Debates in Applied Ethics, Malden (MA): Blackwell Publishing 2005, p. 214. 28 David Miller, “Immigration: The Case for Limits”, in Andrew I. Cohen and Christopher Heath Wellman (eds.), Contemporary Debates in Applied Ethics, Malden (MA): Blackwell Publishing 2005, p. 200. 29 Ibidem. 30 Ibidem, p. 201. 31 This critique is operated by Wellman in Christopher Heath Wellman and Phillip Cole, Debating the Ethics of Immigration: Is There a Right to Exclude?, Oxford: Oxford University Press, 2011, p. 111. 32 For further argumentation, please refer to David Miller, “Immigration: The Case for Limits”, in Andrew I. Cohen and Christopher Heath Wellman (eds.), Contemporary Debates in Applied Ethics, Malden (MA): Blackwell Publishing 2005, pp. 193-206.
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change over time independently of immigration and these changes may even contribute even to
national prosperity.33
Second, from a moral standpoint, assuming that immigration may endanger social cohesion,
this is not morally relevant as long as basic liberal democratic values are not threatened.34 Miller’s
point does not take into account whether citizens do have an interest in preserving their culture and
on which grounds, if at all, this right is based. Taking aside his claim for social cohesion, it is not
clear in Miller’s point why and how people have a right to preserve their culture and also whether
restricting immigration to all immigrants or just few.
Third, against long-term efficiency of closed borders, the utilitarian paradigm would defend
the argument according to which restricting immigration would generate overall to inefficiency and
political tyranny.35 First, economic inefficiency since restricting immigrations means also limit the
competitiveness on the marketplace, which would limit the potential for growth. Second,
inefficiency in global wealth distribution, since closed borders also mean that wealthy countries
would have fewer incentive to redistribute their wealth.36 Lastly, denying entry to immigrants create
incentives for political leaders “to abuse their citizens and lamentably few reasons to refrain from
doing so.”37
33 This is what Kukathas suggests for the history of United States in “The Case for Open Immigration”, in Andrew I. Cohen and Christopher Heath Wellman (eds.), Contemporary Debates in Applied Ethics, Malden (MA): Blackwell Publishing 2005, pp. 207-220. 34 It is possible to build this argument on Rawls’s discussion of perfectionism and the original position. “The idea is that in the original position no one would accept any perfectionist standards (to setup institutions to maximize the achievement of human excellence) because no one would be willing to sacrifice freedom for the sake of an ideal that might prove irrelevant on her concerns. Restrictions on immigrations for the sake of preserving a distinctive culture would be ruled out.” in Joseph H. Carens, “Aliens and Citizens: The Case for Open Borders”, The Review of Politics, Vol. 49, No. 2, Spring 1987, p. 262. Also, I will further develop this question in the last section of the paper, while discussing possible justifications to restrict immigration based on public order and national security. 35 The utilitarian argument is presented by Joseph H. Carens, “Aliens and Citizens: The Case for Open Borders”, The Review of Politics, Vol. 49, No. 2, Spring 1987, pp. 263-264. Also, please refer for the following arguments to the description of the utilitarian argument given by Christopher Heath Wellman and Phillip Cole, Debating the Ethics of Immigration: Is There a Right to Exclude?, Oxford: Oxford University Press, 2011, pp. 105-116. 36 “An utilitarian worry about closed borders is that it predictably leads to inefficient distributions of global wealth […]. [With closed borders] the world’s best-off folks have […] scarcely any incentive to help […] those foreigners who are struggling to survive” in Christopher Heath Wellman and Phillip Cole, Debating the Ethics of Immigration: Is There a Right to Exclude?, Oxford: Oxford University Press, 2011, p. 106. 37 Christopher Heath Wellman and Phillip Cole, Debating the Ethics of Immigration: Is There a Right to Exclude?, Oxford: Oxford University Press, 2011, p. 108.
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Another communitarian defense of states’ right to self-determination gives another slightly
different but complementary justification for closed border. According to Walzer, states are stable
associations of individuals38 that share similar historical traditions and values.39 Not only do states
have a right to self-determination and legitimate interest in choosing those who may enter and who
does not,40 not only do they enforce justice as democratic sovereign entities, but individuals
belonging to the same community also have special obligations towards their compatriots.41 Walzer’s
defense of membership is a main pillar in his theory of justice.42 Because justice is linked to a
common understanding of what is good, justice is possible only “in a political community in which
people share the same culture.”43 Also, “the main thrust of Walzer's position on immigration is to
assert the value of democratic sovereignty over the claims of global justice.”44
These arguments leave room for several critiques. First, if distributive justice depends on
states’ right of closure, then those non-members are “not subject to the constraints of justice” 45 and
immigrants from a poor to a richer state have no claim in justice for admission because of the richer
state’s right to unilaterally exclude.46 From an egalitarian standpoint, the right to self-determination
cannot constraint the moral duty to provide aid to those who are in dire need.47 If this obligation is
not met, this seems against the initial assumption of fundamental moral equality among individuals.
Furthermore, the assumption of moral priority towards compatriots is objectionable: one could
38 Walzer calls these associations also as “communities of characters”: see Michael Walzer, Spheres of Justice, New York (NY): Basic Books, 1983, p. 62. 39 “Admission and exclusion are at the core of communal independence. They suggest the deepest meaning of self-determination. Without them, there could not be communities of character, historically stable, ongoing associations of men and women with some special commitment to one another and some special sense of their common life” in Michael Walzer, Ibidem, p. 62. 40 “Across a considerable range of the decisions that are made, states are simply free to take strangers in (or not)” in Michael Walzer, Ibidem, p. 61. For the same argument, see Joseph H. Carens, “Aliens and Citizens: The Case for Open Borders”, The Review of Politics, Vol. 49, No. 2, Spring 1987, p. 265. 41 According to Walzer, citizens of a state have first a duty towards their compatriots, then to foreigners (if necessary). See Michael Walzer, Ibidem, pp. 46-51; 61. 42 Joseph H. Carens, “Aliens and Citizens: The Case for Open Borders”, The Review of Politics, Vol. 49, No. 2, Spring 1987, p. 265. 43 Michael Walzer, Ibidem, p. 62. Furthermore, Miller too agrees on this proposal since he would argue that following his idea that immigration might endanger social cohesiveness, if people understand differently the question of justice (their duties and rights), then it would be impossible to operate any standards of social justice (this question is treated by David Miller in On Nationality, Oxford: Oxford University Press, 1995 and Principles of Social Justice, Cambridge (MA): Harvard University Press, 1999). Also, on the same issue, please see Joseph H. Carens, “Aliens and Citizens: The Case for Open Borders”, The Review of Politics, Vol. 49, No. 2, Spring 1987, p. 266. 44 Jonathan Seglow, “The Ethics of Immigration,” Political Studies Review, Vol. 3, 2005, p. 320. 45 For Walzer, the right of closure is what makes associations stable political communities and justice is based on the political community. 46 There should be here some limits to this argument, since Walzer says that “needy” immigrants should be admitted. As I will shows later, Walzer also discuss a principle of mutual aid for political refugees and poverty “necessitous strangers” in Michael Walzer, Spheres of Justice, New York (NY): Basic Books, 1983, pp. 46-51. 47 Joseph H. Carens, “Aliens and Citizens: The Case for Open Borders”, The Review of Politics, Vol. 49, No. 2, Spring 1987, p. 266.
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argue that because nations are “imagined communities”, compatriots are like foreigners insofar they
have no direct relationship between them, so that “the adequate public morality is a morality of
strangers.”48
Second, one might also raise several doubts on the question that justice is only possible
domestically. Cosmopolitan egalitarians would invalidate this proposal arguing that 1) if we follow
the initial assumption that everyone should enjoy equality of opportunity on the ground of moral
arbitrariness of her place of birth, then “it is unfair if someone enjoys worse opportunities because
of her cultural identity”49 and 2) it is not true that enforcement is only possible at the domestic
level.50
Finally, the democratic standpoint against closed borders may challenge Walzer’s position on
democratic membership and the right to exclude. The democratic argument shows the
contradictions between the coercion used by a state to exclude immigrants and the democratic
theory that supposes a justification of coercion to all individuals subject to it.51 Since immigrants
would never justify such coercion, restrictions on immigration by a liberal democratic state not only
would they contradict the principle of self-determination, but they also invalidate liberal principles.52
The moral argument behind is that states’ coercion is legitimate only when everyone accepts it
48 This is the argument defended by Goodin in Robert E. Goodin, “What is So Special about Our Fellow Countrymen?” Ethics, Vol. 98, No. 4, July 1988, pp. 663-686. 49 Caney uses also Rawlsian arguments to justify his argument, claiming that from an original position, national identity, class and gender should not worsen people’s opportunities; to Simon Caney, “Cosmopolitan Justice and Equalizing Opportunities,” Metaphilosophy, Vol. 32, Nos. ½, January 2001, p. 115; 144. 50 “Beitz and Pogge have provided a plausible account of the type of institutional structure in which principles of distributive justice (including those of equality of opportunity) apply and a persuasive argument to the effect that there is a global institutional structure of this nature” in Simon Caney, “Cosmopolitan Justice and Equalizing Opportunities,” Metaphilosophy, Vol. 32, Nos. ½, January 2001, p. 127, footnote n. 17. For further details, please refer to Charles Beitz, Political Theory and International Relations, Princeton (NJ): Princeton University Press, 1999, pp. 129-132; also, Thomas Pogge, Realizing Rawls, Ithaca (NY): Cornell University Press, 1989, p. 8-9. 51 For a complete overview of this argument, please refer to Arash Abizadeh, “Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders,” Political Theory, Vol. 36, 2008, pp. 37–65. 52 What both Abizadeh and Cole point out against the argument for closed borders is the incompatibility between states’ right to exclude unilaterally outsiders and the democratic theory of political legitimation. For the full argument, please see Phillip Cole, Philosophies of Exclusion: Liberal Political Theory and Immigration, Edinburgh: Edinburgh University Press, 2000.
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democratically. Since excluded immigrants would be coerced without their consent, a states’ right to
exclude unilaterally is morally unjustified and illegitimate.53
Another moral justification for closed borders is that “freedom of association defend[s] a
state’s right to control immigration over its territorial borders.”54 According to Wellman, in the very
similar way that individuals enjoy their freedom to marry someone of their taste, states should also
enjoy their right to freedom of association, which entitle them to exclude all foreigners from their
political community.55 This argument relies upon three distinct assumptions: Wellman builds his
argument as if that states have a right to self-determination of which freedom of association is an
intrinsic component that entitle them in turn to a presumptive right to exclude foreigners56.
One might appeal this argument raising at least three main concerns.57 The first concern
raises the question of whether freedom of association might serve as consistent moral justification to
restrict freedom of movement.58 Without denying the importance of the freedom of association,59
53 Arash Abizadeh, “Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders,” Political Theory, Vol. 36, 2008, p. 38. 54 Christopher Heath Wellman, “Immigration and Freedom of Association”, Ethics, Vol. 119, No. 1, October 2008, p. 109. 55 “Just as an individual has a right to determine whom (if anyone) he or she would like to marry, a group of fellow-citizens has the right to determine whom (if anyone) it would like to invite into its political community. It follows that a state freedom of association entitles it to exclude all foreigners from its political community” in Christopher Heath Wellman, “Immigration and Freedom of Association”, Ethics, Vol. 119, No. 1, October 2008, pp. 110-111. Also, Wellman does not mention if “right to exclude” means 1) to exclude outsiders from its territory, 2) right to exclude them from settling within that territory, 3) right to exclude them from membership of the political community. I will assume the third option (see Sarah Fine, “Freedom of Association Is Not the Answer”, Ethics, No. 120, January 2010, pp. 342-343). 56 These three assumptions are clearly articulated in Christopher Heath Wellman and Phillip Cole, Debating the Ethics of Immigration: Is There a Right to Exclude?, Oxford: Oxford University Press, 2011, p. 2. Three distinct remarks: First, on membership, please refer to Christopher Heath Wellman, “Immigration and Freedom of Association”, Ethics, Vol. 119, No. 1, October 2008, pp. 114-118; “[…] control over membership in one’s state is extremely important […] ” (p. 114). This however does not mean that Wellman defense’s of immigration control matches perfectly with Wellman’s argument. To notice that Wellman accepts only the premises of Miller’s and Walzer’s defense of membership. Indeed, unlike them “[Wellman] do[es] not believe that a group’s right to limit immigration depends upon its members sharing any distinctive ethnic/cultural/national characteristics” (p.118). Second, in his text, Wellman justifies freedom of association with respect to right to self-determination: “[…] freedom of association is actually a central component of the more general right to self-determination” in Christopher Heath Wellman, “Immigration and Freedom of Association”, Ethics, Vol. 119, No. 1, October 2008, p. 113, footnote 5. Finally, regarding “presumptive”, see “presumptive right to exclude others” in Wellman, p. 114. 57 I will not consider here other potential critiques to Wellman’s argument, including whether states are eligible for moral rights (value-individualists would oppose this, for instance). For a complete critique of Wellman’s freedom of association, please refer to Sarah Fine, “Freedom of Association Is Not the Answer”, Ethics, No. 120, January 2010, pp. 338-356. 58 Carens, for instance, defends “freedom of movement as basic human right” (see Joseph Carens, “Migration and Morality: A Liberal Egalitarian Perspective,” Free Movement: Ethical Issues in the Transnational Migration of People and of Money, Brian Barry and Robert E. Goodin (Eds.), University Park, PA: The Pennsylvania State Press, 1992, pp. 25-47). 59 The right to freedom of association is important for the libertarian argument too. For instance, according to Chandran Kukathas, “[…] keeping borders closed would mean restricting people’s freedom to associate. It would require keeping apart people who wish to come together for love, or friendship, or for the sake of fulfilling important duties, such as caring for children or parents” in Chandran Kukathas, “The Case for Open Immigration”, in Andrew I. Cohen and Christopher Heath Wellman (eds.), Contemporary Debates in Applied Ethics, Malden (MA): Blackwell Publishing 2005, p. 210. Other similar examples of the right to freedom of association combined with libertarian defense of open borders may be found in Hillel
12
liberal egalitarians and libertarians would make the assumption that that individuals are entitled to a
right of freedom of movement and private property. 60 If a state decides to exclude needy
immigrants, it would (1) cause harm,61 (2) interfere both with the outsider’s freedom of movement
and (3) the insider’s property right to accept immigrants onto her territory.62
Secondly, even if it is possible to concede that states enjoy a right of self-determination and
argue against the libertarian argument the inexistence of a “perfect general and absolute right to free
movement,”63 Wellman’s inference from an individual’s to state’s right of freedom of association
remains highly problematic, since the first is voluntary whereas the second is involuntary.64 An
individual chooses voluntarily with whom she will be married. A citizen does not choose which state
she will belong to.65 This is a relevant distinction to Fine because “the presence of immigrants within
the state’s borders cannot be a problem to the associational rights of individuals – it is compatible
Steiner, “Hard Borders, Compensation, and Classical Liberalism,” in D. Miller and S. Hashmi (eds.), Boundaries and Justice: Diverse Ethical Perspectives, Princeton (NJ): Princeton University Press, 2001. 60 This is a widely accepted assumption: “Walzerian reasoning supports open borders because principles of freedom and equality are a deeply rooted part of our tradition.” in Jonathan Seglow, “The Ethics of Immigration,” Political Studies Review, Vol. 3, 2005, p. 324. 61 I did not discuss in detail the question of harm caused by exclusion. For a better analysis, please see Sarah Fine, Sarah Fine, “Freedom of Association Is Not the Answer”, Ethics, No. 120, January 2010, p. 355-356: “Exclusion from the state obviously has the potential to harm the interests of others—interests that would not disappear even if wealthy liberal states did, to use Wellman’s words, “export justice” and thereby fulfill some of their duties to outsiders”. 62 “Prohibiting people from entering a territory because they did not happen to be born there or otherwise gain the credential of citizenship is no part of any state’s legitimate mandate”; also “the concept of collective or national property rights would undermine the individual rights that these theories [theories defending closed borders] wish to protect” in Joseph H. Carens, “Aliens and Citizens: The Case for Open Borders”, The Review of Politics, Vol. 49, No. 2, Spring 1987, p. 254; 252. 63 “I do not think that the right to free movement is perfectly general and absolute. My right to freedom of movement does not entitle me to enter your house without your permission, for instance, so why think that this right gives me a valid claim to enter a foreign country without that country’s permission? Some might counter that this response essentially denies the right in question, but this is not so.” in Christopher Heath Wellman, “Immigration and Freedom of Association”, Ethics, Vol. 119, No. 1, October 2008, p. 135. For a valid counterargument on this point, please refer to Fine’s discussion of state’s relationship to tis territory as not one of ownership in Sarah Fine, “Freedom of Association Is Not the Answer”, Ethics, No. 120, January 2010, p. 354. Furthermore, Miller’s position on this point is that freedom of moment cannot be absolute, but just morally justified in order to meet basic rights: “the right to move serves only as a remedial [not in italic the original text] right: its existence depends on the fact that the person’s vital interests cannot be secured in the country where she currently resides” in David Miller, “Immigration: The Case for Limits”, in Andrew I. Cohen and Christopher Heath Wellman (eds.), Contemporary Debates in Applied Ethics, Malden (MA): Blackwell Publishing 2005, pp. 195-196. 64 This difference, although not explicit (and in a different context), is contained in Wellman “States […] nonconsensually coerce all those within their territorial borders” in “Immigration and Freedom of Association”, Ethics, Vol. 119, No. 1, October 2008, p. 131. The dissimilarity between an individual’s and state’s freedom of association is also strengthened by the fact that contrary to the individual case, one cannot choose not to be member at all (or statelessness) in order to comply with international law. Please refer to Christopher Heath Wellman and Phillip Cole, Debating the Ethics of Immigration: Is There a Right to Exclude?, Oxford: Oxford University Press, 2011, p. 6. Also, please note that Wellman does not give an explanation on whether the state is the right-holder or it is just acting on the behalf of its citizens. We will assume here that the state is acting on behalf of citizens. See Sarah Fine, “Freedom of Association Is Not the Answer”, Ethics, No. 120, January 2010, p. 342. 65 By “voluntary”, I mean any action for which individuals give their explicit consent. It seems clear (although not evident) that a marriage is an institution based on consensual basis. The fact to be born in a state, however, does not rely upon any consensual basis. I will not treat here the case of obtaining other citizenships, since irrelevant for the main argument.
13
with their individual rights to associate freely within civil society, where they remain free to choose
to associate, or not, with newcomers and with other citizens in their private lives.”66
Lastly, the cosmopolitan egalitarian argument provides the strongest critique against
Wellman’s point. Whether or not we may accept that immigration, luck equality and duties of
distributive justice constitute separate issues,67 no one prevent us to rightfully admit that immigration
does represent a way to rectify global inequality of opportunity caused by the arbitrariness of one
individual’s country of origin.68 A state refusing to admit a needy immigrant in its territory would
have no moral grounds to justify its action.
III
Exceptions for open and closed borders
Until here, I have showed that the cosmopolitan egalitarian defense for open borders and
freedom of movement leaves little room for coherent and strong critiques. However, some special
cases of immigration raise exceptions to restrict respectively to freedom of movement (I) and
freedom of association (II).
The cosmopolitan egalitarian argument is inherently based on the claim that there are not
moral justifications to restrict the freedom of movement of individuals by states. However,
cosmopolitans would argue against freedom of movement on two separate occasions, (1) when
66 Sarah Fine, “Freedom of Association Is Not the Answer”, Ethics, No. 120, January 2010, p. 343. 67 Wellman does do say that luck egalitarianism is wrong, but only that “luck equality matters, but it matters considerably less than relational equality” (p. 122). I will dismiss this point on the next section. Also, Wellman: “[…] it is standard to keep separate our rights to freedom of association and our duties of distributive justice”. On this question, Wellman seems to agree on the fact that peoples and states have a duty to immigrants in order to contrast poverty. Where Wellman disagrees is that rather than open their borders to immigrants, states should “export justice”. This critique is close to what “indirect cosmopolitan” would also argue (see Thomas Christiano, “Immigration, Political Community and Cosmopolitanism,” San Diego Law Review, No. 45, 2008, pp. 933–961). I will further develop this argument on the next section. 68 As I mentioned previously, the real issue here is just not equality itself, but also the fact that individual’s life chances are randomly affected by their country of origin and that for the same reasons, these individual may suffer from horrible circumstances. I may assume that there is a natural duty to assist them and that open borders, although not exclusively, does represent a way to satisfy this duty. As in the previous footnote, if we make the case that we have a moral duty to assist those in dire need, then a state denying entry to a needy immigrants would be morally unjustified to do so.
14
immigration threaten the national public order and (2) when immigration is justified by “brain
drain.”69
According to Rawls, even though in the original position no restrictions on migration would
be permitted, freedom of movement can be restricted if it threatens freedom itself or what protect
liberty within a political community, to say the national public order.70 Therefore, “restrictions would
be justified only if there were a ‘reasonable expectation’ that unlimited immigration would damage
the public order and this expectation would have to be based on ‘evidence and ways of reasoning
acceptable to all.’ ”71 The only moral justification for a state to deny entry to needy immigrants is to
prove that they will potentially threat its internal security and public order.
A second justification to restrict freedom of movement has to do with a special case of
immigration, the so-called “brain drain” or skilled immigrants seeking to benefit from better
opportunities in foreign countries. 72 According to Kapur and McHale, libertarians and
cosmopolitans would agree to restrict immigration if allowing merely free migration of high-skilled
professionals from developing countries harm the prospects of those left behind in poorer
countries.73 To that argument, one might add that brain drain restrictions on immigration are
justified only when other special conditions are fulfilled.74
69 I will not treat other special cases, such as family members of current residents, etc. A broad overview of these special cases is offered by Veit Bader, “The Ethics of Immigration,” Constellations, Vol. 12, No. 3, September 2005, pp. 331-361. 70 John Rawls, A Theory of Justice, Cambridge (MA): Harvard University Press, 1971, pp. 212-213. 71 Ibidem, p. 213. 72 To note that in the introduction I have make the case that “needy” immigrant means an immigrant willing to enter another country to secure a decent life. Only here, I will make an exception to this rule and claim that “needy” immigrant refers also to a case of an individual that is seeking entry into another country to full develop her skills and benefit more from them than if she would have not left her country. 73 Devesh Kapur and John McHale, “Should a Cosmopolitan Worry about the ‘Brain Drain’?” in Give Us Your Best and Brightest: The Global Hunt for Talent and Its Impact on the Developing World, Washington D.C., Center for Global Development, 2005, pp. 305-210. 74 This is the argument made by Kieran Oberman in “Can Brain Drain Justify Immigration Restrictions?” Ethics, Vol. 123, No. 3, April 2013, pp. 427-455. Among these conditions to justify brain drain immigration restrictions, “brain drain immigrants needs to have fulfilled her obligation of repayment to the state (if she had benefited from state’s education), she can provide better assistance to her state of origin (if she immigrate into another state), if the state of origin has not fulfilled its duty of assistance to its citizens, etc.” (p. 453).
15
If cosmopolitans accept some special circumstances under which freedom of movement may
be restricted, the case of “political refugees”75 creates a broad consensus to restrict the freedom of
association.76 A majority of supporters for closed borders77 agrees that there cannot be any moral
justifications for denying individuals the possibility to leave their country that is undergoing political
disorders and security threats.78 The idea is that there are no moral grounds for preventing those
individuals to enter a foreign country in exchange of political security and assistance, since
“restrictions on the freedom of movement of agents enjoying no political protection are never
justified in a global theory of justice in migration.”79
In conclusion, I have showed that - except under special circumstances -80 states are never
justified to deny entry to needy immigrants. To do that, in the first part I have assessed that the
strongest critique against the argument for closed borders comes from the cosmopolitan egalitarian
standpoint, since one cannot really deny the main claim of the impact of moral arbitress of one’s
place of birth on her life’s chances and it would be morally unjust to deny a chance to a better and
decent life to someone condemned to relative poverty through no fault of her own. Going further in
that argument, I have also claimed that freedom of movement is also an instrument of distributive
75 For a complete definition, please refer to Andrew Shacknove, “Who is a refugee?” Ethics, Vol. 95, No. 2, January 1985, pp. 274-284. 76 The consensus, however, is not unanimous. For instance, see Christopher Heath Wellman, Immigration and Freedom of Association, p. 109: he maintains that states actually have the right to “close [their] doors to all potential immigrants, even refugees desperately seeking asylum from incompetent or corrupt political regimes that are either unable or unwilling to protect their citizens’ basic moral rights”. 77 “The policies that I would defend […] embody […] the admission of refugees” in Michael Walzer, “Response to Veit Bader,” Political Theory, Vol. 23, No. 2, May 1995, p. 249. Also, Miller argues: “the right to move serves only as a remedial [not in italic the original text] right: its existence depends on the fact that the person’s vital interests cannot be secured in the country where she currently resides” in David Miller, “Immigration: The Case for Limits”, in Andrew I. Cohen and Christopher Heath Wellman (eds.), Contemporary Debates in Applied Ethics, Malden (MA): Blackwell Publishing 2005, pp. 195-196. Lastly, see Matthew Gibney, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees, Cambridge: Cambridge University Press, 2004. 78 Miller claims “people whose basic rights are being threatened or violated in their current place of residence clearly do have the right to move somewhere that offers them greater security […] [and] states have an obligation to admit refugees” in David Miller, “Immigration: The Case for Limits”, in Andrew I. Cohen and Christopher Heath Wellman (eds.), Contemporary Debates in Applied Ethics, Malden (MA): Blackwell Publishing 2005, p. 202. 79 See Lea Ypi, “Justice in Migration: A Closed Borders Utopia?” The Journal of Political Philosophy, Vol. 16, No. 4, 2008, p. 411. 80 Some exceptions, such as public order threats from immigration, brain drain and political refugees limit respectively freedom of movement and freedom of association.
16
justice81 and until a just global system is effectively in place, open borders may be considered a
morally relevant duty to rectify global inequality and poverty. To demonstrate the validity of this
argument, I have proceeded in the second part of this paper to shield it against some potential
critiques, which I have analytically deconstructed with also the help of other arguments for open
borders, including the libertarian, utilitarian, and democratic.
[Word count: 2991]
81 See Joseph H. Carens, “Aliens and Citizens: The Case for Open Borders”, The Review of Politics, Vol. 49, No. 2, Spring 1987, p. 255; also, please refer to Frederick Whelan, “ ‘Citizenship and Freedom of Movement: An Open Admission Policy?’ Open Borders? Closed Societies?” Ed. Mark Gibney, New York (NY): Greenwood Press, 1992, p. 8ff.
17
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