The Ethics of Immigration Symposium: The Theory of Social Membership

by Ryan Pevnick on May 27, 2014

Let me begin by saying that The Ethics of Immigration is a wonderful book and that it is a terrific pleasure to participate in this celebration of its publication.  This is exemplary political theory: it addresses issues of fundamental importance to democratic societies and does so through clearly reasoned and provocative challenges to widely held positions.  Partly because of Carens’s unusual ability to sort through complex terrain in ordinary language, the book is a fantastic example of the way that political theory can clarify and contribute to democratic debate.

I

Although Carens’s work is best known for its defense of open borders, I have discussed those arguments at length elsewhere and, so, will use this space to raise some questions about the first part of the book.  There, Carens works under the assumption that the state has the right to restrict immigration and asks about the appropriate treatment of newborn children, permanent residents, temporary workers, and undocumented migrants.

While Carens has written on these topics in other places, one of the great features of the book is that it allows one to appreciate the way in which those discussions are linked by a simple and intuitively attractive theory of social membership.  Carens argues that:

What matters most morally with respect to a person’s legal status and legal rights in a democratic political community is not ancestry or birthplace or culture or identity or values or actions or even the choices that individuals and political communities make but simply the social membership that comes from residence over time…. [Most people] develop deep and rich networks of relationships in the place where they live, and this normal pattern of human life is what makes sense of the idea of social membership. (160)

Over time, people develop relationships in a community, they formulate aims and plans that are shaped by their place within it, and they come to identify as members.  Although it is one’s social connections that matter morally, the passage of time is a useful legal proxy because it prevents political officials from having to establish, on a case-by-case basis, the extent to which an individual has developed connections to a particular community.  Thus, Carens’s claim is that over time people come to have a fundamental interest in being legally recognized as members of the community in which they live.

II

There are many questions to be asked about this theory.  Briefly consider two.

First, what should we think about individuals who neither form, nor wish to form, social connections?  Perhaps an individual moves to a cabin in very rural Montana with the specific intention of avoiding social connections and relationships.  According to Carens, such an individual is nevertheless entitled to citizenship.

The recluse who is the descendent of several generations of citizens is still a member of society, not because of her ancestry but because of where she lives.  The immigrant recluse has the same claims to social membership.  (168)

But, since the recluse does not have the kinds of social connections that are supposed to justify claims of citizenship, this remark seems to suggest that it is not the “rich networks of relationships” that justifies granting individuals citizenship.  What, then, is it?  And if we are willing to depart from the theory of social membership in this case, how can we be confident that it is correctly guiding us in other instances?

Second, we should ask how the theory applies in other contexts.  For example, I have taught at New York University for some 5 years now.  I have forged relationships, acted as a member of the community, built expectations around the assumption that I will continue to be an NYU faculty member, and so forth.  Still, although some might think it sad or unfortunate if NYU dismissed me, few would think that it loses the right do so once I forge sufficient social connections.

Similarly, I doubt whether length of membership allows one to resist being tossed out of one’s religious congregation or country club (regardless of the importance of the relationships built there).  Doesthe simple fact of social connection confer a right of membership on individuals in any context other than the state?  Should we be concerned about a theory that would seem strange or out of place in other contexts?

These questions suggest that:

  1. Social connections are not always necessary to establish membership; and


  1. Social connections are not always sufficient to establish membership.

If this is correct, we cannot just assume that difficult cases can be unproblematically addressed by applying the maxim that “social membership matters morally” (158).  It would therefore be tremendously useful to have a clearer account of how, when, and why social membership is morally important. So, despite its strong intuitive appeal, there are many further questions about Carens’s theory of social membership (regarding its basis, limits, and extension).

III

Having now raised some initial questions about Carens’s theory of social membership, I would like to consider his application of this theory to issues concerning the appropriate treatment of irregular (e.g. illegal) immigrants.

Given what we have said, it should not be surprising that Carens’s view is that:

The moral right of states to apprehend and deport irregular migrants erodes with the passage of time.  As irregular migrants become more and more settled, their membership in society grows in moral importance, and the fact that they have settled without authorization becomes correspondingly less relevant…. The implication of this analysis is that states … should establish an individual right for migrants to transform their status from irregular to legal after a fixed period of time of residence, such as five to seven years.  (150-151)

So unlike those who think of membership as a two way street (requiring the consent of the potential immigrant and the political community), Carens argues that people who enter a country illegally nevertheless become members of that society after sufficient time has passed.

Carens argues for this position, in part, by presenting two examples:

  1. Marguerite Grimmond was born in the United States, but moved to Scotland with her mother while very young.  She does not leave Scotland until going to Australia on a family vacation at the age of 80.  However, she never legally established the right to be in the United Kingdom and, upon her return, it refuses to grant her reentry.


  1. After having difficulty finding work in his home country of Mexico, Miguel Sanchez illegally enters the United States.  After a couple years, he marries a US citizen with whom he then has a child (now six years old).  U.S. law gives Sanchez no feasible path towards legalization and, as a result, his family lives in constant fear that a routine traffic stop or similar encounter with law enforcement could lead to his deportation.

Our intuitive unwillingness to accept deportation in these cases carries a lot of argumentative weight for Carens.

Unfortunately, the examples are not ideal because one can accept the view that immigrants in these particular circumstances ought not to be deported without thinking that irregular immigrants come, as a matter of course, to have a right to remain after being in the territory for a number of years.  For example, one might think that although illegal immigrants do not automatically become entitled to stay in their new country after a period of time, it would be wrong to deport individuals whose illegal immigration was not their responsibility (as in Grimmond’s case) or ones whose immediate family members are citizens (as in Sanchez’s case).  So, it is possible to agree with Carens about the specific examples without accepting his broader theory of social membership.  As rhetorically powerful as the examples certainly are, they do not uniquely support Carens’s position.

The other main consideration that Carens gives for his position on irregular migration is that it follows from his broader theory of social membership: the longer one stays, the stronger is one’s claim to remain.  However, as I noted at the outset, it’s at least somewhat unclear how the theory should apply in different contexts.

We should ask, for example, whether the community’s failure to approve one’s initial entry makes a difference to the social membership that one allegedly gains with the passage of time.  It is at least worth noticing that in many ordinary contexts this would seem to matter quite a lot.

Imagine that a student who cannot afford to attend NYU hacks into the university’s computer system and generates a student account.  Over the next couple of years, he is otherwise a model student at the university.  He does well in his coursework and avoids any further violation of university rules.  He also proves to be quite active socially, becoming involved in a number of student clubs and forming a wide range of important relationships with other students and faculty members.  When the university discovers the initial violation, would anybody think that it has lost the rightto expel the student from the university?  Would the university have more of a right to expel the student if he had been less active in developing social connections in the community?

My own view is that the initial violation gives the university the right to expel the student, should it wish to do so.   This, again, at least suggests that social membership may not be sufficient to establish a claim to legal membership.

I emphasize that the issue here is the university’s right to expel the student.  If the student made impressive contributions to the university community during his time there, the university might well decide to allow him to graduate upon paying the tuition owed or even to waive such payments.  Doing so would involve the university electing not to exercise a right that it possesses; this, of course, is importantly different from denying that the university holds such a right.

Similarly, I would personally endorse a policy of regularizing illegal immigrants similar to that advocated by Carens.  In my view, regularizing illegal immigrants who have been in the country for a long period of time without violating important laws would be a humane and decent policy.  It would also reflect the recognition that those of us in receiving countries cannot reasonably claim to deserve the wealth that surrounds us.  This is the kind of policy that I would like for the country claiming to act in my name to endorse.  But, one can disapprove of current policy towards illegal immigrants without denying that states have the right to make it.

Carens needs an argument for the claim that the state lacks this right, but (1) the examples that he calls on to argue for such a position are insufficient because they cannot distinguish between his position and those that would give different types of reasons for resisting the deportation of Grimmond and Sanchez, and (2) more argument is needed to show that the theory of social membership unproblematically travels across cases that are otherwise importantly different (such as when entry is not permitted by the community).  So, however attractive is the policy that Carens recommends, I doubt whether he has given us sufficient reason to think that it uniquely (or best) fits with broader democratic commitments.

IV

Let me briefly discuss two ways in which Carens might respond to this line of argument.

First, he argues that our commitment to statutes of limitations shows that the right to punish fades with time:

It is not right to make people live indefinitely with a threat of serious legal consequences hanging over their heads for some long-past action, except for the most serious sorts of offenses.  Keeping the threat in place for a long period of time does not enhance deterrence and causes great harm to the individual – more than is warranted by the original offense.  (154)

Unfortunately, reference to the statute of limitations is more complicated than this suggests.

For instance, if the violation is a continuing one, the statute of limitations does not typically begin its countdown until the end of the series of violations.  Likewise, on at least some views, the statute of limitations does not begin its countdown until a reasonable person would have discovered the infringement.  So, for example, the fact that Bernie Madoff allegedly began committing fraud in the mid-1980’s did not prevent him from being prosecuted three decades later.

Likewise, the standard view is surely that the presence of the individual is a continuing violation of the political community’s right of self-determination and an illicit claiming of entitlement to the proceeds of a system of social cooperation to which the individual has no rightful claim.  Carens seems to be assuming that the initial entry to the country, as opposed to continuing residence there, is the illegal act that requires forgiveness.  But, if we are working from the assumption that the state has the right to restrict immigration, it is not obvious why we should accept such a position.

Thus, as it stands, it is perfectly reasonable for someone to respond by saying that their endorsement of the statute of limitations commits them to the view that we should not hunt people down after they return to their home country and attempt to punish them for their previous illegal residence.  It need not, as far as I can see, commit them to ignoring ongoing legal violations, even if they happened to begin a long time ago.  In any case, for the argument to be dispositive, we would need a more extended defense of the reasons for accepting a statute of limitations and an exploration of how it applies to the case at hand.

Second, Carens could respond by insisting that the theory of social membership is only applicable in the context of political relationships.  If this were true, it would suggest that my example of an “irregular” NYU student would be beside the point.  Although the distinctive nature of political relationships makes this is a tempting response, I think it is at least somewhat worrisome.  Most importantly, the reason that Carens gives for thinking that length of time matters – namely, that with the passage of time one forms relationships that one has an important interest in maintaining – is not naturally confined to the political context.

In the time that our irregular student spends at NYU, he forms important relationships that he has a strong interest in maintaining and that cannot be adequately pursued in the absence of membership in the university community.  Because the interests involved seem to extend to other kinds of cases, claiming that the theory only applies in the context of the state seems ad hoc and unjustified.  I think that these concerns suggest that there would be something valuable to be gained from a more detailed working out of the justification for the theory of social membership that underpins the book.

However, these (mildly) critical comments should not for a moment distract from the excellence and importance of The Ethics of Immigration.  This is a fantastic book: challenging, provocative, and clearly argued.  It should generate lots of welcome reflection, debate, and discussion about the obligations of democracies in the construction of immigration policy.  Moreover, it should establish the importance of questions of migration to broader debates in political theory about justice, democracy, and citizenship.  For helping to clarify issues of pressing public concern and for providing us with a model of what political theory can and should be, we are all in Carens’s debt.

Ryan Pevnick teaches political theory at New York University and is the author of Immigration and the Constraints of Justice (Cambridge, 2011).

 

{ 17 comments }

1

JHW 05.27.14 at 12:32 pm

Haven’t read the book, don’t know what arguments are on offer within it, but as someone who has basically the same view as the one the post describes, it seems to me that there are two important differences between the NYU case and the irregular immigration case:

1. The kind of legal right a political community has over the territory in its control is quite different in kind from the kind of legal right NYU has to its property. A state does not stand as authority over non-residents trying to enter it the same way it stands as authority over a university’s right to control access to its institutions, in that the second, unlike the first, is an issue internal to the political community a state governs. This is part of why, it seems to me, the criminal law is inappropriate as a tool to deal with irregular immigration per se. A state has the right to take its own side in conflict with people trying to migrate into it against the state’s will (I don’t think open borders are a matter of right), but its decision to do so doesn’t have de jure force in the same way.

2. More fundamentally, the analogy is misconceived because we are talking here about public relationships, not private ones. The state and the territory it governs is not a corporation in which every citizen owns a share. If we take the idea of a democratic republic seriously, the people who govern and the public whose well-being political institutions are supposed to serve has to correspond to the actual real-life people who have settled in the territory; it can’t be up to some smaller group of people to determine who gets equal legal status and who doesn’t. This is what lends this view its force: when you have a class of people who are long-term residents of a country who nonetheless have a sharply diminished set of civil and political rights and are denied basic legal status, that’s a real problem for the ideals of democratic governance and legal equality. The difficult analytical question is where the line lies, where a tourist or temporary resident becomes a member of the community who is entitled to equal legal standing, but there is no reason to think that the rules here should bear any resemblance to the rules that apply to NYU (which is a private institution, not a political community), and it can’t be simply up to the discretion of those who are already (in a positive rather than normative sense) considered full members.

2

Matt 05.27.14 at 1:29 pm

That’s a very nice discussion, Ryan. I want to add one further difficulty. (Perhaps Carens addresses this in the book- I’ve read a lot of the work that went in to it, but haven’t had the chance to read the finished book yet.)

In the Russian community in N.E. Philadelphia, there is a persistent rummer that if you manage to live in the U.S. for 5 years, even w/o regular status, you can get legal status or even citizenship. Of course this isn’t true. (*) But, despite the fact that it’s clearly not true, it’s widely believed. (I assume such beliefs exist in other immigrant communities, too, but only have first-hand knowledge of this particular Russian community.) Of course, this belief, even though false, encourages people to over-stay their visas and fall into unauthorized status, leading to lots of problems.

But, if even a clearly false belief, persisting in what is typically a pretty highly educated community, can have these bad results, then I expect that a formalized “statute of limitations” of the sort Carens suggests would provide a lot of perverse incentives. My guess would be that this would in turn lead to backlash that would make needed and reasonable immigration reform harder. (It would also likely encourage more, and more oppressive, visa regulations.) If we believe the societies have a defeasible right to control immigration, this clear perverse incentive would also cause conflict with that.

It’s not obvious to me what the best answer to this problem is (except to note that immigration policy is hard, and easy solutions are unlikely to work.) Parts of a solution would involve workable temporary labor migration, so that the economic advantages of labor migration can be gained without the perverse incentives discussed above. Other parts would include more reasonable rules of “adjustment of status” for people with families than currently exist in the US (and at least many other countries.) Even though they are in some ways distasteful (because of a strong arbitrary component) ad-hoc legalizations will probably always be necessary from time to time as well. These too provide some perverse incentives, but less than a formal statute of limitations would, I think. Doubtlessly, other aspects would be needed too, and the best path will differ from country to country. But even though I’m fairly sympathetic to many aspects of a “social membership” account, including many aspects argued for by Carens, I do think the particular approach Carens presents is too simplistic to work well.

(*) I suspect that this false belief comes from a misunderstanding of the fact that lawful permanent residents can naturalize after 5 years in the US, and perhaps also some misunderstanding about the (pretty strict and complex) rules about “cancellation of removal”, though I can’t say for sure.)

3

Anarcissie 05.27.14 at 2:35 pm

Can someone point me to the basis and or derivation of Carens’s theory that states have rights? As this is said to be assumed, I assume I won’t find it in the book under discussion.

4

Trader Joe 05.27.14 at 3:10 pm

@3
I think Carens is using state as in ‘nation state’ not as in Arizona.

In the U.S. anyway, the law is reasonably settled – only the Federal government can legislate immigration and if a state does do so, the state law is subordinate to Federal law where the two are in conflict.

5

Anarcissie 05.27.14 at 4:38 pm

I meant The State. The thing created by a government consisting of the persons, territories, institutions, relations, etc., which it governs. In some people’s political theories, only natural persons have rights (e.g. life, liberty, property, expression, association, contract, etc. etc. etc.) but they can donate some of their powers within these rights to a government. Old-time liberalism. If Carens thinks states or other entities, not natural persons, have rights, I need to know about his theory in order to think about (for example) whether a government or state should be able to limit immigration. I just need a URL or something to get caught up. Sorry to be so prolix. Nervous habit.

6

Matt 05.27.14 at 4:57 pm

If Carens thinks states or other entities, not natural persons, have rights, I need to know about his theory

I’m pretty sure that Carens just means that groups of people organized in certain ways (in this case, as a state) have rights that they can exercise together (even in cases where no particular individual could exercise the right.) Lots of different sorts of associations of people can have rights in this way, and though there are lots of interesting questions in this area, I don’t think there’s anything particularly mysterious about the basic idea.

7

cs 05.27.14 at 5:22 pm

Along the same lines as JHW’s comment – A country, unlike an institution such as NYU, does have a class of people who have been granted (essentially) permanenet menbership. It’s hard to think of someone earning the right to become a pernament citizen of NYU, because there aren’t any permanent citizens of NYU. That may be why the intuition is different in that case.

8

Dooble 05.27.14 at 5:52 pm

This was a fantastic and very illuminating discussion – Thanks!

9

Alex 05.27.14 at 5:57 pm

I can think of quite a few examples of rights being acquired through time. It’s common in employment law that you acquire certain protections after being employed continuously for some fixed period of time, for example. Squatter’s rights work like that. International law has the idea of the “norms of state practice” being a source of law (as unfortunately immortalised in “über die Gründe oder Dauer der Maßnahme wird keinen Auskunft erteilt, wie es internationale Gepflogenheiten entspricht”)

10

Anarcissie 05.27.14 at 6:25 pm

The NYU case is similar to the (national) State case in that what is asserted against ‘intruders’ is a collective property right. (NYU may not, but there are property-owning collective entities which grant at least some of their members permanent membership.) If we agree that the government or state sort of property right exists, there seems to be no reason why it would ever expire. In fact, it could even be invoked against the descendants of ‘intruders’, as for example against persons of Indian descent in Fiji, or Jews in 1930s Germany, which suggests to me that there may be something wrong with the basic idea.

11

SusanC 05.27.14 at 10:19 pm

He does say “in a democratic political community”. A university, or a country club, is probably not a counter-example because it is not even trying to be a democracy. (Certainly not a democracy in which students are citizens).

If a democratic government likes to claim that its authority derives from “we, the people” (rather than, for example, a hereditary monarch) then a certain amount of care is in order about who, exactly, is included in “we, the people”.

Universities, on the other hand, being something of a feudal hangover (being established from about the 13th century onwards in Europe) don’t even claim to derive their authority to exist from the student body.

======

A recluse is still subject to the laws of the country in which they reside. I think there’s some notion of reciprocity in effect: in order to say that the law which binds even the guy in a cabin in the woods is legitimate, everyone, even the guy in the woods, gets to vote on what the law is. (Short term vistors such as tourists are the obvious exception to this putative principle).

12

Moz in Oz 05.27.14 at 11:03 pm

The key difference between a university and a nation-state is that people have the right to a state, where they don’t have the right to a university. Almost all nations have agreed that they will not create stateless people, which means that they generally avoid expelling an illegal immigrant who has nowhere to go, and will not strip citizenship from someone who is only a member of their state (countries like the US and Australia accept that this should be true even when doing otherwise “in exceptional circumstances”).

There are perverse incentives here around countries that allow citizenship to be renounced, meaning that people who can gain any claim to citrizenship in a more desirable country will immediately renounce citizenship in their country of origin to prevent the desirable country from deporting them.

13

Moz in Oz 05.27.14 at 11:12 pm

The question of “natural members” vs “legally recognised citizens” is perhaps more obvious with nomadic groups. They are hugely problematic where their territory crosses national borders, historically around the “iron curtain” for example, but today more in Africa and to some extent in Arabia.

How does a newly minted state deal with a group that has been occasionally resident since well before that state was established, and in some cases before the new-fangled notion of a “state” with fixed, closed borders was even devised? Typically it’s via genocide, but we tend to frown on that from an ethical point of view. Should Norway, Finland, Sweeden and Russia all grant multiple citizenship to all Sami, for example? Or should they deny it on the basis that those people can claim citizenship in one of the other countries (which may be technically true even if impractical)? Should they be allowed to cross borders? If not, at what point does applying modern law to them become genocide (cf Australia)?

14

Moz in Oz 05.27.14 at 11:19 pm

Another angle: should a country claiming that someone is their citizen have that claim accepted if the aim of the claim is to kill that person? What if it’s just a necessary consequence? What if the reason for the execution is widely accepted (war crimes, say)?

In other words, claims of citizenship rights are closely tied to claims of refugee status. If someone is illegally resident because the immediate consequence of returning them to the only country that will accept them is horrendous, should a state still have the right to deport them? Where do we draw the line between “Uganda kills the gays” and “Germany kills the Nazis”? Should bwe even draw the line between those two, or should it be outside either (I expect there are people passionately commited to both “outside” positions).

The “necessary consequence” covers, for example, New Zealand’s recent deportation of someone who needed medical care that was available in NZ but not their country of citizenship. They’ve since died.

15

dax 05.28.14 at 8:39 am

I would be more impressed with an argument which not only said when someone was a citizen but when they were not. For instance:

“Marguerite Grimmond was born in the United States, but moved to Scotland with her mother while very young. She does not leave Scotland until going to Australia on a family vacation at the age of 80. However, she never legally established the right to be in the United Kingdom and, upon her return, it refuses to grant her reentry.”

Lovely case this! For the United States would say that Ms. Grimmond is a citizen of that fair country whether she wants to be or not, and is therefore supposed to file American tax forms, perhaps pay American taxes, and register for the draft if she were male.

16

Phil 05.29.14 at 9:24 pm

although some might think it sad or unfortunate if NYU dismissed me, few would think that it loses the right do so once I forge sufficient social connections.

I’d think it both sad and unfortunate if NYU in fact has the right to do so. My (academic) employer lost the right to dismiss me, other than through due disciplinary process, when I completed twelve months’ employment. Similar rights accrue through time to squatters, as Alex says.

I wonder if the concept of amnesty – or even jubilee – might be useful here (this side of the open-bordered ideal). In other words, perhaps the point is not that the state should or shouldn’t have the right to expel irregular migrants, but that the state – having this right – should be expected to waive it in certain conditions or on certain occasions. (In Italy it’s customary to mark the formation of a new government after elections with a general reduction of prison sentences, some (hotly debated) categories excluded. Imagine that approach to the regularisation of immigrants.)

17

mud man 05.30.14 at 8:31 pm

members of that society after sufficient time has passed

It occurs to me to wonder how the society established itself as a “state” within this territory in the first place … apparently typically by inhabiting it until sufficient time has passed. That’s the nature of the claim the United States has on America, for example. So how do “recent” immigrants of the past few centuries stand with respect to indigenous tribal people? For a more practical problem, who has rights in Kosovo? Conversely, since Blacks have been here long enough to be full citizens, at least technically, might that impact their eligibility for reparations?

Personally, I would guess that treating borders as anything more than morally dubious “facts on the ground” is going to lead to confusion.

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