Book Symposium on Joseph Carens’s The Ethics of Immigration

This is the first contribution in a Crooked Timber symposium on Joseph Carens’s The Ethics of Immigration (Oxford, 2013). Over the next week there will be a number of further contributions by guests and Crooked Timber bloggers, followed at some near but later time by a response to critics from Joseph Carens himself.

Some worries about Carens’s democratic consensus

Joseph Carens started the contemporary discussion of immigration and justice back in 1987 with his essay “Aliens and Citizens: the Case for Open Borders” (Review of Politics 49:2) and has pursued the topic doggedly since then in a series of books and papers. But we’ve had to wait until now for the definitive statement of his views. The Ethics of Immigration is a terrific book in various different ways. First, in assembling a challenging series of arguments around its core topic; second, in breaking new ground in how to do political philosophy; and third, in demonstrating that a work in political philosophy can be written with such clarity and can communicate with the lay reader without sacrificing rigour or philosophical depth. In this last respect it is astonishing: it is beautifully written, never hides behind jargon and engages with its readers without patronising them. In short, it is a great achievement.

The book has two parts. In the first, Carens takes as given the widespread view that states have the discretionary right to control immigration: who comes in, who gets to be a member. With this assumption in hand, he then argues that widely-accepted democratic norms still place moral limits on what states may and may not justly do, and that those with a substantial connection to a polity, and particularly those subject to its laws over an extended period of time, have a right to full membership, a right that may not be limited by considerations of language, culture or race. In the second part, he abandons this assumption and argues for his open borders utopia (although there is a good deal of continuity between the two parts). In each, he uses what he calls “cantilever arguments”, proceeding from some assumption that his imagined interlocutor accepts and using this assumption to argue for more radical normative conclusions. In this post, I’m going to engage mainly with some issues in the first part of the book.

However, one difficulty I have in thinking about how to discuss the work in a symposium such as this is in finding ways to disagree with it. The earlier chapters, in particular, are thoroughly persuasive to me on the topics of citizenship and integration. Carens takes the argument quite slowly, introducing each topic with a vignette about the personal situation of a migrant and then going on to demonstrate the injustice in their status or what has happened to them. It is hard to think that a humane and liberal person will disagree with much in Carens’s theory of social membership: the idea that real material connection to a society ought to be the central criterion for membership and citizenship rather than inheritance or birthplace.

Persuading me of such conclusions, however, is a relatively easy thing to do. I already believe them and I also believe in the supposedly shared democratic norms that Carens claims imply them. However, I’m less confident than he is that there is widespread agreement on such principles outside of a minority liberal elite. My worries about the book’s argument are twofold: first, I think that support for the norms he relies upon is much narrower than he believes; second, it is sometimes unclear what the content of the area of supposed agreement is. I try to bring this latter point out with reference to what Carens has to say about temporary workers and the phenomenon of “brain drain”.

Carens’s method of argument explicitly draws on Rawls’s idea of the “overlapping consensus”: the idea that reasonable people agree on a number of substantive propositions about the way in which a legitimate state should be organized, even if they disagree on their underlying moral and political justification. Areas of agreement include ideas such as that citizens should be equal before the law, that freedoms of religion, speech and assembly should be protected, that every adult citizen of sound mind should have a right to political participation, and so forth. Carens want to show his fellow citizens that the reasonable policies he favours on citizenship and integration are implied by principles they already accept. This is a rather different use of overlapping consensus from Rawls’s one. Whereas Rawls wanted to demonstrate the possibility of a legitimate liberal political order coexisting with the fact of disagreement, Carens’s argument is more pragmatic and his aim is more political. He wants to get people from principles they already accept to conclusions he wants to persuade them of. He leaves us in no doubt that he is making a set of empirical claims about what citizens of democratic states believe. For example, “on a wide range of topics there is no serious disagreement among those who think of themselves as democrats” (2-3) and “that conventional framework is one that most people in democratic states accept” (185). On the morning after the European Parliament elections it is hard to share his confidence in democratic consensus: the existence of “unreasonable people”, a theoretical problem for Rawls, is an immediately practical one for Carens.

The worry, then, is that the empirical claim about widely shared beliefs may be false. Carens may be conflating what electors in liberal democratic states actually believe and the story that liberal democratic societies officially tell about themselves: the civics lesson is substituting for political sociology. Many modern societies are deeply marked in their constitutional order by the post-war settlement. The European Convention on Human Rights, for example, drafted by British Conservative lawyers and adopted by nearly all European states, contains many of the propositions at the heart of Carens’s overlapping consensus. It wouldn’t be hard to find large numbers of statements from politicians or journalists endorsing the general principles. Once we move away from high-days and holidays, however, we get a different picture. For something deemed a “consensus” there is very little popular agreement around these principles and a pervasive hostility among populist politicians and the press to the “human rights industry”. Even where politicians play lip service to some version of a principle, say, the right to family life, they do so in a highly conditional way: they are happy to endorse the idea so long as it doesn’t clash with their desire — as in the case of British Home Secretary Theresa May — to deport “foreign criminals”. In the case of other measures, such as proposals in the UK and Canada to strip naturalized citizens of their status under certain circumstances, politicians seem entirely cavalier about the consistency of their actions with any underlying principles and their seems to be little resistance from the average elector on grounds of shared principle.

We see this disconnection in play in both Europe and North America today. On both continents we see public reason on the basis of fundamental principles being more and more the province of jurists and academics, whilst politicians fulminate against “unelected judges”. For the most part, mainstream politicians do not explicitly reject constitutional and human rights principles in the name of some other set of principles. Rather, they proceed from a vague amalgam of nativist nationalism and majoritarianism, without ever openly defending such ideas. Nativist majoritatianism — the idea that the national territory belongs to its ethnically-conceived people and that migrants are trespassers — does have its explicit defenders, of course. But insofar as these commitments are openly professed, it is by the populist far right. More mainstream politicians, however, make much of the need to take account of the “reasonable concerns” of electors who unreflectively endorse such views, and are happy to grandstand when judges thwart specific measures for human-rights reasons.

What happens when we press the issue, and insist that such and such a policy is a requirement of some human-rights principle? Supposing Carens demonstrates to an average citizen or a mainstream politician that, say, granting membership to long-term irregular migrants is a requirement of norms they are already committed to? As the saying goes, one person’s modus ponens is another person’s modus tollens. Faced with such an implication, Carens’s interlocutor may choose to save the situation not by accepting the conclusion but by revising their commitment to the antecendent principle. In the later section on open borders, we get a glimpse of such a reaction, when Carens tells us that confronted with the fact that the reasons they favour internal freedom of movement within states also support open borders, many of his interlocutors “are willing to throw internal freedom of movement under the bus” (245).

My second big worry about the book concerns its minimalism: Carens’s decision to proceed from widely-accepted propositions rather than embedding his theory of immigration within a broader theory of global justice. I have a lot of sympathy with this strategy, but I’m not such that he succeeds in pulling it off at all points in the book. My concern here is that some of the arguments he relies upon in the first part may tacitly invoke more extensive commitments concerning global justice than he is officially signed up for. The key concession that Carens makes, in that first part, is, again, that states have a discretionary right to control their borders, albeit a right of which the practice is morally criticizable. The argument is then supposed to proceed from the norms at the heart of the overlapping consensus plus permissible discretionary exclusion. Is this what actually happens though? Here are two places where I wasn’t altogether convinced that it did: Carens’s discussion of temporary workers and his reponse to the brain-drain argument. Let me take these in turn.

Some people, such as Martin Ruhs in his recent book The Price of Rights (Princeton, 2013), think that there is a trade-off between granting rights to temporary workers and the numbers who secure admission. From the perspective of global justice, this can lead to a problem. To the extent to which temporary workers in wealthy countries are offered the same rights and conditions as domestic worker, then fewer of them will be employed. Instead they will be trapped behind the border, probably unemployed or doing a similar job under worse conditions they could have access to if the labour regime were different. Instead of reducing poverty back home by sending home valuable remittances, they are denied the valuable opportunity to do so (Carens, 112). Carens is unmoved. He writes:

Every state is responsible for what goes on within its own jurisdiction. A state has to make a judgement about acceptable health and safety standards and other minimum working conditions within its own territory (115) …. We have a different kind of responsibility for what goes on in our own jurisdiction than we do for what goes on elsewhere (117).

When a group of us discussed this section in Bristol, opinion was divided. Some of us agreed with Carens but others did not, arguing that we should hold states morally responsible for the effects they bring about, and that therefore policy choices that result in the least advantaged languishing in poor countries, excluded from labour markets, are choices that should be condemned. Now in part two of the book, the open borders utopia effectively disposes of this dilemma. But in part one, we have to face it squarely and resolve it within the restrictions in place there and it is hard to see how we can do that — either way — without relying on further controversial premises. Carens, in endorsing a view about the limits of state responsibility effectively does just that, effectively, he lines up with people like John Rawls and David Miller against their cosmopolitan and globalist critics. My worry is that that this makes the commitments of part one more substantive, extensive and controversial than he officially acknowledges, it casts doubt on the isolationist and minimimalist strategy of relying on a fund of shared premises.

Something of the same worry attends Carens’s discussion of the brain-drain issue in his chapter on “Ordinary Admissions”. Here Carens sets aside the difficult empirical issues around whether policies that recruit, for example, medical professionals from poor states are on balance beneficial or harmful for those states. He does this in order to focus more clearly on the normative issues. Apparently true to the self-denying restrictions of part one he writes, “Within the limits of the conventional assumption, I see no basis for asserting an obligation on rich states to adopt immigration policies that do not harm poor ones.” (185) So even if it turned out that states had policies that did impoverish already poor countries, this would be permissible: it wouldn’t be unjust. This seems altogether too quick given that it identifies justice very narrowly with what states are formally entitled to do. This identification is out of step with the argument elsewhere in part one, where he explicitly rejects the move from “states have a right to φ ” to “the decision of states to φ is beyond moral criticism”. One way of understanding Carens’s rejection of that move there is to say that merely formal considerations of entitlement do not exhaust the requirements of justice. Yet here states who pursue harmful policies are criticizable for being “ungenerous” but not for being unjust. I haven’t done a survey of what my fellow citizens believe, but were we to ask a sample of them whether it is unjust for rich countries to pursue policies that harm poor people in poor ones, I expect I would get a wide measure of assent. Probably that consensus would disappear if we were to leave the realm of generality and spell out the details of particular cases. Nevertheless, it is hard to assert categorically either that “harming is permissible” or “harming is impermissible” is in the shared fund of democratic agreement, but it looks like we have to take a view one way or the other. If we do either, then it looks like we are starting to buy into a more substantive conception of justice than Carens wants to at this stage.

Having criticized Carens’s strategy in some details, however, I do want to make clear how far I actually agree with it. If, in order to make progress on some particular question in applied ethics or political philosophy, were were obliged to embed our arguments within a comprehensive theory pf justice, then we’d never make genuine progress on those issues. And insofar as we can get a consensus around substantive normative principles without also securing agreement around their underlying justificaiton, it is highly desirable to do so. Inevitably, though, sometimes more extensive commitments are lurking behind particular moral conclusion. This is, I think, less of a problem than Carens’s optimism about what our fellow “democrats” believe. Insofar as they think systematically about these ideas at all, they probably reject elements of the liberal consensus that Carens has them endorsing.