The Ethics of Immigration symposium: Democratic equality and internal movement

by Patti Lenard on May 30, 2014

The right to move within states is a basic human right, acknowledged by multiple international human rights documents including the Universal Declaration of Human Rights.  For Joseph Carens, what is puzzling, and ultimately unjustified, is that the right to move internationally is not similarly recognized as a basic human right – in his view, it ought to be recognized as such.  According to Carens, the right to move domestically (or internally – I use these terms interchangeably to mean movement within the borders of a state) and internationally protect the same interest:  “the vital interest that is at stake here is…freedom itself.  You have a vital interest in being free, and being free to move where you want is an important aspect of being free” (p. 249).  Carens defends this view from attack by those who think that there are important distinctions between internal and international freedom of movement.  In this brief comment, I outline the argument as Carens describes it, and then I join the ranks of those who nevertheless want to justify distinguishing between the internal and international rights to movement.  I suggest that Carens gives short shrift to two important ways in which the distinction can and, in my view, should be justified, and then argue that we ought to understand the right to move internally as a membership-specific human right, according to a slightly modified account of what such a right entails.

Fundamentally, the argument for defending the right to move, internally and internationally, is a simple one:  says Carens, the right to move is an “important aspect” of freedom, whether internally within states or internationally (p. 250).  The right to move freely should “be regarded as a basic human right because of its intrinsic importance as a human liberty” (p. 253).  There is no reason to distinguish between the right to move domestically and internationally – whatever reason we have to move domestically is also one that we have internationally, to seek better economic opportunities, to follow our family, to explore new cultural environments and so on.  Since the borders that define states are morally arbitrary, there is no good reason to limit our understanding of movement as a basic human right to the domestic environment.  Since international borders at least as much, if not more than, than domestic borders, impede the ability of individuals to exercise the right to move, borders should be open for the same reason that we protect internal freedom of movement, i.e., that it is an essential component of freedom and therefore a basic human right.

Carens proceeds to reject a range of attempts to defend restricting the basic human right to move to the domestic environment.  I will consider two of these here: one attempt suggests that domestic movement is special because it protects individuals from discrimination and another suggests that domestic movement is (as I too shall suggest) a membership-specific human right.

As Carens reports, some scholars defend the right to domestic movement as a basic human right for its contribution to protecting individuals from discrimination by the state (p. 242). Carens agrees that freedom of movement may have an important protective role to play here: certainly in many cases where states aggressively restrain the right of individuals to move internally, as for example when Jews in Europe, or the Japanese in North America, were restricted to ghettos or internment camps in World War 2, it is clear that discrimination is at work.  Yet, Carens ultimately rejects the anti-discrimination argument as the foundation for protecting the right to move domestically as a human right.  Carens responds to this claim in two ways.  First, he points to the historical record, which suggests that the reasons offered to protect internal movement were not rooted in a concern for discrimination (p. 243).  Second, the right to movement does so much more than protect individuals from discrimination by the state: “it is far too broad a right for that to be its primary purpose” (p. 243).

I think Carens is right to reject the claim that the right to move is to be justified exclusively for the role it plays in protecting individuals from discrimination.  Yet, I think also think that what Carens characterizes as an anti-discrimination argument might be better reformulated as a democratic equality argument, a key component of which is protection from discrimination.  Democratic states are responsible for protecting the equality of all their citizens, and doing so requires that they protect a range of rights for all citizens on an equal basis.  All of these rights together, including the right to move internally, serve to protect equality in a democratic state; to use Michael Blake’s language, the right to move is one of a complex of rights that protects individuals in democratic states. None of these rights is absolute – not even those that are most conventionally thought to be the strongest, such as freedom of speech and freedom of religion.  At the very least, they are all limited by the harm principle; more than that, however, in democratic states, the rights can sometimes be additionally curtailed where there are compelling reasons to do so.  To the extent that any of these rights is restricted for some more than others, in particular without adequate justification, democratic equality is not protected.  On this view, then, the right to move domestically is defended for its essential contribution to democratic equality; where it is unjustifiably restricted, then, we can say that those who have access to unequal movement are treated in a discriminatory way.

Accounting for the right to movement in terms of its connection to protecting democratic equality has at least two attractive features.   First, as the anti-discrimination argument suggests, it allows us to diagnose discrimination via an assessment of access to the freedom of movement domestically.  For example, consider the history of zoning laws in the United States.  Justified in apparently neutral language, municipalities sometimes deploy zoning laws to restrict in-migration in the name of limiting population density.  One obvious effect is the driving up of property prices in the zoned municipality.   Much research, however, indicates that these laws are in fact adopted in environments where the goal is to prevent the in-migration is of disfavoured minorities, who may not have the resources to pay the inflated property prices.  In this case, while the policy does not appear to target the right to move of disfavoured minorities directly, it does have a significant effect on their ability to move in particular, and this suggests that there is an unjust inequality at work.  It is a focus on the equal right to move, not simply the right to move as a component of freedom, which enables to diagnose the discriminatory basis of zoning regulations.

A second attractive feature of focusing on democratic equality as a way to understand the importance of protecting the right to move is that it makes sense of the fact that there are cases where movement restrictions, and indeed movement inequality, can be justified. As Robert Goodin has noted, one special feature about domestic states is that they can treat their citizens worse than they can treat outsiders along many dimensions, including with respect to movement, so long as adequate justification is offered in the appropriate democratic environment.  A commitment to democratic equality highlights the importance of offering adequate reasons for the unequal distribution of movement among citizens.  Citizens are entitled, in other words, to equal access to movement domestically, or they are entitled to a set of reasons for why their movement is restricted.

Of course, citizens do not have the equal ability to access the right to move.  A range of factors impact whether an individual is free, or feels herself to be free, to move.  At the most basic level, moving requires resources, and those without resources will be less able to move freely, whether they desire to visit or reside elsewhere.  Some individuals feel themselves prevented from moving by the need to provide for their families.  Yet, other, “external” factors, many of which are shaped by deliberate government intervention, also affect whether citizens feel free to move, in particular for purposes of taking up residence elsewhere.  Gay Americans may feel restricted in where they can live because their marriages are recognized only in some states.  Many American states have significant restrictions on where sex-offenders may live and reside.  Eminent domain laws in many states can compel citizens to leave their houses, in many reported cases without adequate compensation for what they are losing.  Subsidized child care options can make some locations more desirable locations in which to reside.  Concerted attempts to locate business, or some other specialized industry, in one or two locations can encourage individuals with particular expertise to migrate.  What we learn from these cases is that governments often implement policies that are intended to influence whether and where individuals chose to migrate.  In each of these cases, citizens are owed justifications for political decisions that often intentionally, and sometimes unintentionally, affect their ability to migrate internally.

How do we know if the ways in which democratically made public policy, which affects internal migration, is consistent with a commitment to democratic equality?  In part, the answer lies simply in defining the nature of equality to which democracy is typically committed:  in terms of equal basic liberties or inclusion in political decision-making procedures, for example.  Another part of the answer lies, however, in the more particular way in which a given political community defines equality.   In some cases, then, whether democratic equality is violated is clear: if a state refuses to create procedures by which new internal migrants can promptly vote in elections (whether federal or sub-state), it is unjustly penalizing those who migrate internally near election time.  In other cases, however, whether democratic equality is violated is less clear: if a sub-state unit decides to subsidize one form of medical care but not another, an individual in need of the medical care that is not provided elsewhere may feel dissuaded from migrating.  As an example of the latter, consider that the Canadian province of Quebec currently subsidizes some forms of assisted reproductive technology, while other Canadian provinces do not.  It is not clear that democratic equality is violated if a resident of Quebec, who is in need of these services, decides to remain in Quebec to take advantage of them.  The point is that states have considerable leeway to define what equality in general, and equality of movement, entails.  This observation is drawn from the distinction David Miller offers between social and global justice where, he argues, a community’s own account of what social justice demands will serve to delineate the package of goods (or rights) that are to be distributed equally to all members.

As a consequence, whether citizens believe their right to move is constrained fairly or unjustly will depend in large part on the way in which its community conceptualizes democratic equality, as well as the ways in which reasons for movement inequality are justified.  The first step to understanding whether movement is unjustly constrained is comparative: individuals will at first glance assess their own abilities to migrate internally in relation to others’ abilities to migrate internally.  The second step is understanding whether the reasons given to explain unequal ability to migrate internally are consistent with the community’s own understanding of democratic equality.

The right to move can therefore be thought of as a membership-specific human right, i.e., as one that is “derived…from one’s social location”, and which draws “attention…to the fact that certain human rights depend upon a person’s connection to a particular community” (p. 97).  Where a right is a membership-specific human right, “the state is morally obliged to grant to citizens and perhaps to residents as well, but not to others within its jurisdiction” (p. 242).  Why, then, doesn’t Carens believe that freedom of movement is properly described as a membership-specific human right?   One reason he offers is that the Universal Declaration of Human Rights notes that everyone and not simply citizens have the right to move freely on a given territory –“there is nothing membership-specific about that” (p. 241).  But the more important reason seems to be that, after all, the freedom to move is essential to accessing many opportunities in a state, not all of which are connected to issues of membership: “it contributes to personal, civil, economic and social dimensions of freedom” (p. 242).

Yet, this doesn’t seem to be enough to make the case.  As I noted above, states regularly make decisions, which they must justify to members and perhaps also to residents, about the extent to which policies will intrude on or constrain their internal migration opportunities.  These decisions inevitably effect whether everyone (whether citizen, temporary resident, or tourist) within the boundaries of a state can move in pursuit of a wide range of opportunities, but it seems sufficient to conclude that movement is a membership-specific human right to note that members especially are entitled to justifications for decisions that affect their movement.  A membership-specific human right is not only one that is restricted to members as Carens suggests, in other words, the way in which it is instantiated must be justified especially to members as well.  (There is more to say of course about whether justification is owed to non-citizens – tourists, for example, and temporary labour migrants, whose movements are often restricted internally – and if so about format this justification ought to take.)

The argument I’ve offered in response to Carens’ account of the foundations for the right to move internally and internationally is not knock-down certainly; indeed it doesn’t even deny that the right to move itself might well be justified first and foremost with respect to the importance of movement in securing freedom more generally.  What it does do, I hope, is encourage us to think more seriously about the ways in which domestic states impact, and in particular restrict, movement in significant ways, ways that demand justifications that are consistent with a state’s understanding of how to instantiate democratic equality.  In assuming that movement internally is basically free, and thus that what demands explanation is the presence of movement-restricting borders, Carens pays inadequate attention to the ways in which domestic states restrict and encourage movement and to the justifications that can and cannot be offered for these restrictions and encouragements.  As I have tried to suggest, these restrictions can only be justified by reference to a state’s own understanding of democratic equality, an understanding that demands justifications be offered to members especially.  Internal freedom of movement is therefore best understood as a membership-specific human right.

Patti Tamara Lenard teaches applied ethics at the Graduate School of Public and International Affairs, University of Ottawa, and is the author of Trust, Democracy and Multicultural Challenges (Penn State Press, 2012).

{ 11 comments }

1

David 05.30.14 at 6:50 pm

A question – is the right to move freely a particular case of the general right to live where you like? Presumably the answer is yes, since otherwise you would have a right to change your place of residence, but not to stay there as long as you liked, which would be odd. So there must be an equal and opposite right of people not to be obliged to move unless they want to. History suggests that this is a real problem: an obvious case is the eviction of non-whites from various areas in South Africa in the 1950s, but there are more recent cases of Romany and immigrant settlements being broken up, and squatters evicted.
Indeed, there’s reason to believe that for most people the right to stay where they actually are is probably more important tun the (abstract) right to move where they want. Not only, as you point out, is this latter right hard to exercise unless you have money, but it tends to be limited, in practice, to the ambitious and socially mobile and those (like university academics) who might have to move to the other end of the country to get the one Chair that’s coming up in the near future.
But most people prefer to stay where they are, and to live in an area they know, with their friends and family. Evidence suggests that most movement is involuntary to some extent – move to find a better job, acceptable schools, less crime, find an affordable house etc. So does a government have a duty, as well as allowing free movement, to create the conditions where this movement is entirely voluntary – for example ensuring that there are good schools and hospitals everywhere? is this not part of democratic equality? If not, the isn’t the idea of free movement a bit artificial?

2

SusanC 05.30.14 at 9:55 pm

I seem to remember reading that Britain did not have internal freedom of movement before the Industrial Revolution, in the sense that your entitlement to payments under the Poor Law (NB before the modern social security system…) was tied to a particular parish of residence.

The Industrial Revolution, with the large-scale movement from the countryside to towns, made the old parish-based poor law unworkable.

I can see an argument that the European Union, with freedom of movement across national boundaries, and large scale population migration caused by economic factors, might break nation state based social security systems in much the same way the Industrial Revolution did for the poor law.

[i.e. here I'm postulating that internal freedom of movement, rather than being some universal right, historically arose out of the Industrial Revolution].

3

Michael Cain 05.30.14 at 11:04 pm

I know that I’ll ask this badly, but… well, there’s a reason why I’m a systems engineer and not a philosopher. And yes, I appreciate that there are a whole lot of biases and assumptions built into the scenario.

Group A has, over the decades, spent considerable of its per-capita sweat, blood, and treasure establishing a robust and modern infrastructure from its local resources. Because they can now produce and distribute large amounts of electricity, workers are productive and live a comfortable life full of conveniences like 24-hour-a-day lighting and refrigerators and sewage plants that keep the rivers flowing cleanly. Group B has, over the same time period, spent considerably less of its per-capita sweat, blood and treasure building infrastructure, electricity is a scarce and expensive commodity, and as a result workers are not nearly so productive and life is much less comfortable. Many persons from group B say, “Our ancestors made crappy decisions; instead of living with that, though, we’d like to go live with group A where we too can use the robust infrastructure (possibly overwhelming it if enough of us move in too quickly) to be more productive and live comfortably.” What are reasonable ethical obligations on two sides?

4

bxg 05.31.14 at 3:00 am

> What are reasonable ethical obligations on two sides?

Do you read Professor Lenard’s post as supporting side “B”? Because I surely don’t; I see a well-argued and very convincing (looking beyond the excessive politeness and throat-clearing) refutation of one strand of Caren’s argument. If the rest of Caren’s thesis can be demolished as easily as this post shows (and on crookedtimber, no less) your moral preference is not under severe threat.

5

P.M.Lawrence 05.31.14 at 4:33 am

SusanC, you’re almost right, only the Industrial Revolution wasn’t actually the driver of those processes; rather, it was also favoured by the same things that favoured those processes (which is why the matching timing is no coincidence). For instance, the later, 18th century phase of the Enclosures of the Commons worked as a push factor to drive people out of rural sufficiency; the presence of new, urban or mining opportunities can appear as a pull factor in these circumstances, but it was actually providing a destination for the push, which we can see from the way that the push of the Tudor phase of the Enclosures of the Commons operated anyway, even without anything to absorb those displaced. That push effect also led to the Parish system of Poor Relief failing even within the rural areas that people were leaving, and not simply within the areas people were moving to, e.g. a vicar with a parish in the Chiltern Hundreds had to make up the shortage of poor relief resources out of his own private funds (I hope that’s enough for readers to track the reference).

6

Ed Herdman 05.31.14 at 6:15 am

WRT Susan’s comments, there was some concern about precisely this kind of thing in “healthcare tourism,” where people in countries without great healthcare made use of the pan-European visa (or lack of checkpoints rather) to seek healthcare in countries like Spain.

I’m not sure exactly how to commensurate the two good things, but one: Clearly some of this can be overcome by deepening the European Union and standardizing things further.

On the other hand, the Eurozone (precisely speaking, the Euro itself) comes under criticism for not allowing national governments enough latitude to enact necessary policy changes in order to allow for natural regional variations.

What is required is a political climate that allows more flexibility than simply “something is broken? Double down on integration, and punish the slackers!” With austerity, for instance.

Even in the current system, though, I don’t think that this particular kind of social security network (universal healthcare) ended up being particularly threatened once people worked out a compromise (but I am not sure exactly how that particular issue worked out in the end, so I might just be naively optimistic here).

@ Michael Cain:

Briefly, I think that most people will agree there’s a limit on how far the foolishness or steadfastness of one’s forebears can impact descendants in providing actual limits on growth opportunities. Most people seem to agree that the chance of where you find yourself is not of your own doing. Likewise, I don’t think that trying to frame the discussion in terms of “wise vs. foolish ancestor” is helpful. Not only is it going to be excessively difficult, absent the worst abuses (which are of course prevalent in history), in assigning blame, but too political to make headway.

I ran into a case rather like this recently in a discussion of some work Georgetown University’s Dr. Richard F. America has done on trying to track the stolen labor of slaves in America, with an eye towards reparations. Now – I say that’s great for historical context and in helping to understand the needs of people today. However, I don’t think that an attempt to track wealth through the ages becomes anything more than an attempt to tax the wealthy (which by itself should be enough to achieve the aim!) with an eye towards also making a moral statement (which is fine of course), but it doesn’t seem likely to me to create as good a state of affairs as simply targeting people in need would. The reparations plank of his program seems therefore to be kind of unnecessary and also likely to provoke the wrong kinds of reactions, instead of helping to defy past injustices.

I don’t think we can escape designing systems that allocate resources based on location and also scarcity, so that two people in equal need still get serviced with priority to the closer one, and one random person in the homeland is less likely to be served for a particularly obscure need, than the very basic food needs of a group of people even in a distant land can be ameliorated by shipping a food parcel. But the goal is still to reach even the person in need in a distant land. Trying to justify not even attempting to make that goal seems rather strange and useless.

7

hix 05.31.14 at 2:42 pm

Isnt the point about going to Spain for healthcare less the quality and more that its free (tax financed)? Getting the free healthcare there would still require to live there at least 50% +1 day of the year (in which case, Spain would also pay the healthcare abroad within the EU)? More a side issue with regards to retirees that spend some time of the year in the South id expect.

8

Ronan(rf) 05.31.14 at 2:55 pm

Well I’m no philosopher, but isn’t Michael Cain’s comment just the basic argument against the welfare state ? Why should person A (whose ancestors over the decades, spent considerable amounts of their sweat, blood, and treasure establishing a robust fortune) expect to share said fortune with person B.
By this logic there is no welfare state to begin with, no foreigners wanting in, and hence no moral quandry.

9

Ed Herdman 05.31.14 at 6:05 pm

@ hix:
I’ve made a mistake in talking about “great healthcare,” though otherwise the impact of the argument should be substantially the same. It’s not a perfect example of completely free borders and ala carte services, but it is close; my comment should be understandable if focused on apportionment of services, not on their quality (which is more or less within-the-ballpark – if you can get it, great; if not, you have no healthcare and very bad ends result).

Some reporting in The Economist late last year shows some of the pitfalls of trying too hard to reserve critical services for the worthy, paid-in citizenry. Beyond making sure everybody is paid-in is a looming problem of there simply being a pressing public need for services, and the problem does not respect attempts to make sure that people only receive what they can demonstrate having contributed to (or their ancestors having done so).

10

mpowell 05.31.14 at 7:57 pm

Ronan @ 8, Honestly, I think there is a pretty big difference. A substantial portion of the critique of libertarian theory relies on the observation that an individual’s current productivity can only be measured and realized within a society. It becomes pretty easy to justify taxation once you note that (even if we assumed earnings were tightly coupled to contribution to social value in all cases) the better off are, in large part, paying for the sustaining of a society that has made it possible for them to become wealthy and that without that society they would experience a quality of life far worse than what they do, even after taxation. To a certain extent the entire world is part of the society that we live in. But historically, and even today, your local community and nation play a much larger role in shaping the social and economic life people experience.

What I really don’t like about Caren’s position is that it creates a circumstance where as soon as a group of people manage to create a better society, with greater economic opportunities, freedoms and the institutions and cultures to perpetuate those advantages, it offers everyone else a moral claim to participate and enjoy those benefits without consideration for whether their participation could negatively influence the quality of that society. If you just look at it on an individual by individual basis of course this problem doesn’t exist. But it seems quite obvious that you could construct scenarios where this would be a huge problem on a group action basis. And I think any philosophy of justice which doesn’t recognize this as a problem is critically flawed. That’s what separates, in my opinion, a pragmatic and circumstancial support for better and more relaxed immigration policy (for example, I think the US could allow more immigrants of nearly all types with almost entirely positive effects) and support for the principle that any restrictions on immigration are immoral.

11

Ed Herdman 06.02.14 at 5:33 pm

I fully agree that this concern – which I boil down to sustainability of the societal system – suggests that there are practical limits to protect the ‘gardens of democracy.’ However, I can think of at least two very important mitigating factors here:

1.) The premise that immigrants strain societal resources is certainly overstated in some quarters. A discussion a couple months back on “scapegoating” in UK policy debates on immigration held my interest, and while the ‘concern about immigration’ side was interesting, I think the side that held that immigrants have done no harm carried the day.

2.) Not only is it a matter of sustainability, but also of opportunities of growth. Businesses like to crow about how they bring capable people together; how should it be that human society will be great if people do not have the opportunity to vote with their feet and bring their own cultural ideas while expanding opportunities within the regions they live in? I did make a comment in another thread about long-distance communication, but clearly that has its limits.

In a time when regional powers hold on to the land as the vehicle for their history and culture, and as the justification for aggressive postures in the name of defense, it seems that we’re being asked to split our sympathies. But I think that people having lived in one area can, if they find a place suitable for them, easily carry with them all the most important elements of their culture, and calling somebody a traitor to their land (the physical aspect) does not make any sense. Wherever people go, there they are!

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